Limited grants of legal immunity are sometimes necessary to promote objectives deemed more important than the prosecution of a particular crime. For example, immunity may be granted in exchange for testimony necessary to prosecute more important criminals. In the case of diplomatic immunity, diplomats are exempted from the application of the host country's laws in order to ensure their ability to perform their representative function free of potential coercion. Such grants of immunity, which most people consider reasonable, sometimes arouse resentment. Resentment is almost guaranteed when grants of immunity serve no other purpose than to ensure (as the Athenians put it in their conference with the Melians) that "the strong do what they can and the weak suffer what they must."
Karen Armstrong, in The Battle for God (pp. 250-51), describes an instance in which a grant of immunity aroused resentments that continue to cause problems for American foreign policy:
On October 27, 1964, [Ayatollah Khomeini] delivered a strong attack against the recent granting of diplomatic immunity to American military personnel and other advisers, and to the shah's acceptance of 200 million dollars for arms. Iran, he claimed, was virtually an American colony. What other nation would submit to such indignity?
Following this speech, Khomeini was sent into exile by the Iranian government. In 1979 during the Islamic Revolution that deposed the shah, Khomeini returned to Iran to become the leader of the Islamic Republic. On November 4, 1979, followers of Khomeini turned the tables on the United States by violating the well-established principle of diplomatic immunity. Sixty-three Americans were taken hostage as students seized the American embassy in Tehran. The hostages were not released until January 20, 1981.
The theocratic state that Khomeini helped to establish in Iran has been generally hostile--at times deeply hostile--to the United States from the beginning. At present, Iran is defying U.S.-led efforts in the United Nations Security Council to curb its nuclear-weapons program.
It would, of course, be wrong to suggest that current tensions with Iran can be traced directly to an American request over forty years ago that U.S. soldiers be granted immunity from prosecution in Iran. It would not be wrong, however, to suggest that we should expect blowback from efforts to exempt the United States government from the rules that everyone else must follow.
Unfortunately, this is not a matter of historical interest only. The United States has negotiated 100 Article 98 agreements--so called because of the provision in the Rome Statute of the International Criminal Court that purportedly sanctions such evasions of ICC jurisdiction--with foreign governments in an effort to ensure that American military personnel will never be surrendered to the ICC. Most of these agreements, however, have not been ratified. Many involve states that are not yet party to the Rome Statute. Nonetheless, at least 18 states have been denied U.S. foreign aid as a consequence of their refusal to sign Article 98 agreements. (For more on the status of existing Article 98 agreements, see this fact sheet [.pdf file] prepared by the Coalition for the International Criminal Court.)
British attorney and legal scholar Philippe Sands writes in Lawless World: America and the Making and Breaking of Global Rules (p. 64) that states that have entered into Article 98 agreements with the United States "have undertaken not to surrender any American national to the ICC without the consent of the United States, under any circumstances. In return the United States gives no undertaking to investigate or prosecute any American who may have been involved in war crimes, crimes against humanity, or genocide." Sands concludes that "it is not surprising that these bilateral agreements have come to be seen as bilateral immunity agreements."
Nor should it be surprising if, forty years from now, some blowback from these Article 98 agreements occurs. The next Ayatollah Khomeini may well be somewhere seething over the immunity from international law that the United States is now claiming for Americans.