When German tennis star Boris Becker attempted to become a diplomat of the Central African Republic in 2018 to avoid bankruptcy proceedings in the United Kingdom, much of the world ridiculed his efforts. But his actions begged a genuine question: Can an individual become a diplomat so that his or her past actions are immunized from prosecution or suit, even after the actions have occurred or court proceedings have been instituted? In the United States, the answer appears to be yes. On at least two occasions, federal courts have allowed such retroactive applications of diplomatic immunity in cases involving allegations ranging from false imprisonment to mistreatment of domestic workers. Presumably under the political question doctrine, these courts reasoned that they must defer to the executive branch on issues of foreign affairs and on State Department certifications of diplomatic immunity, in particular. These courts did not review the factual contexts of the cases, which would have illuminated that the individuals in question were not actually diplomats, would be unlikely to ever act as diplomats, and seemingly had obtained diplomatic status solely for the purpose of evading suit or prosecution.
This Note argues that the purposes of diplomatic immunity, analogies to other forms of immunity like presidential immunity, and the potential for unfettered abuse all cut against the retroactive application of diplomatic immunity. Courts need not dismiss cases as nonjusticiable under the political question doctrine solely because a case involves a question of diplomatic status. Rather, courts should narrowly tailor the judicially developed political question doctrine when legitimate issues as to the factual and legal validity of a defendant’s diplomatic position arise.
Anna Raphael, Retroactive Diplomatic Immunity, 69 Duke L.J. 1425-1461 (2020)
Available at: https://scholarship.law.duke.edu/dlj/vol69/iss6/5