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Hastings Law Journal

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The purpose of this Article is twofold: first, to place the perception of "diplomatic crime" in the United States in a proper factual and legal perspective, and second, to oppose any unilateral legislative attempts, in contravention of both international and domestic law, to remove immunity from criminal jurisdiction presently accorded to foreign diplomatic and consular personnel and their dependents residing in the United States. Specifically, the Article suggests that enactment of legislation such as S.1437, would contravene existing United States and international law; that U.S. diplomatic and consular personnel serving at posts abroad would be exposed unnecessarily to the reciprocal risks of retaliatory measures taken by foreign states; that there is no factual justification for such legislation; that present legal remedies, if vigorously pursued when necessary, are more than adequate to deter "diplomatic crime"; and that preservation of existing criminal jurisdiction immunity accorded to foreign diplomatic and consular personnel serves both the short term and long term foreign policy interests of the United States. Under present law, the United States has the burden to prove that immunity from criminal jurisdiction, once asserted, does not exist. This Article also rejects any attempt to undercut the existing right to criminal jurisdiction immunity by legislatively shifting the present burden of proof from the United States government to an accused diplomat's sending.