SINGAPORE – A counsellor at the Singapore Embassy in Japan who admitted to secretly filming a teenage boy at a communal public bath in Tokyo, among other acts of voyeurism, made headlines on May 2.

A senior police officer was quoted in Japanese media on May 1 as saying that the man had immunity from arrest in Japan as he was a diplomat.

The officer added that there are difficulties in apprehending diplomats linked to criminal cases in Japan due to diplomatic immunity.

The 55-year-old counsellor – a diplomatic rank for experienced foreign service officers – has since returned to Singapore and has been suspended from duty to assist in investigations, said the Ministry of Foreign Affairs (MFA) on May 2.

The Straits Times speaks with lawyers and law academics to find out what diplomatic immunity covers, whether it can be waived, and if immunity can lead to exemption from punishment.

What is diplomatic immunity?

In international law, diplomatic immunity is a legal immunity enjoyed by foreign diplomatic officers from prosecution in the host country for the entire period of their posting.

The specific immunities enjoyed by diplomats depend, in part, on their position in the overseas mission.

For instance, beyond a basic set of privileges, an ambassador would enjoy more immunities than a junior diplomat.

Mr John Lim, managing director of LIMN Law Corporation, said a foreign diplomat is covered by diplomatic immunity in almost all situations, whether or not he or she is acting in their official capacity and carrying out official state duties.

This means the host country cannot pursue a criminal prosecution against the foreign diplomat while he or she is serving in the host country, he said.

The Vienna Convention on Diplomatic Relations 1961 is the main international treaty governing diplomatic relations.

Both Singapore and Japan are parties to this international convention.

What is the purpose of diplomatic immunity?

The purpose of diplomatic immunity is to allow diplomats to carry out their official duties, which primarily is about promoting and protecting their home country’s interests in a foreign state without fear of being harassed, intimidated or prosecuted by the host country.

Can diplomatic immunity be waived?

Diplomatic immunity can be waived if the host country requests the country of origin to do so, and the country of origin agrees, said Mr Lim. The country of origin can also choose to decline the request to waive diplomatic immunity.

Requesting to waive diplomatic immunity can happen in cases where the foreign diplomat has committed an offence in his or her personal capacity in the host country, he added.

When diplomatic immunity is waived, the host country can then proceed with prosecution in accordance with its laws, said Mr Lim.

Singapore Management University’s Associate Professor Eugene Tan said a country’s decision to waive diplomatic immunity depends on a variety of factors, such as the importance of bilateral ties and its assessment of the host country’s legal system.

“My guess is there will be immense pressure on the country of origin for immunity to be waived where serious crimes like murder and rape had been committed. Less so for minor infractions of the law,” said the law expert.

“But the preference is probably to insist on diplomatic immunity as a starting point and as the default position.”

Can immunity lead to exemption from punishment?

It is often misunderstood that such immunity allows diplomats to flout the laws of the host country, said Prof Tan.

“Diplomatic immunity does not put diplomats above the law. There are consequences for the diplomat and the sending country, particularly should a serious crime be committed,” he said.

Consequences could include the diplomat becoming persona non grata – a person who is unwelcome – in the host country. It would then ask the diplomat to leave.

In the latest case of the alleged filming of an underaged boy by a Singapore diplomat in Tokyo, Prof Tan said the man could not be detained, arrested or be brought under the jurisdiction of Japanese courts for his actions then as he was serving as a Singapore diplomat there.

However, as he has since ended his posting, he now enjoys immunity only for official acts while on the post, but no longer enjoys immunity for his private acts, said Prof Tan.

Mr Lim, the lawyer, said Japan may request Singapore to waive diplomatic immunity over him so that Japan may deal with the matter in accordance with its laws.

MFA said on May 2 that Singapore will cooperate with the Japanese authorities and take the necessary action. It is also “prepared to waive diplomatic immunity to facilitate investigations if the alleged facts bear out”.

If Singapore does not agree to waive diplomatic immunity, there is no legal obligation to return the man to Japan, as Japan does not have an extradition treaty with Singapore, said Mr Lim.

However, Japan can request extradition, which will then be processed in accordance with Singapore’s legal framework and foreign policy considerations.

“Singapore can decline, but it is unlikely. MFA may also commence separate disciplinary proceedings against (the man),” said Mr Lim.

What role has diplomatic immunity played in past cases?

Former Romanian diplomat Silviu Ionescu was convicted for a hit-and-run car accident in Singapore in 2009 which caused the death of a 30-year-old Malaysian man.

Mr Ionescu, Romania’s charge d’affaires in Singapore at that time, left the country three days after the accident.

There was much public outrage in Singapore as he was not stopped from leaving the country or arrested after the accident. In addition, he could not be brought back to Singapore for trial as there was no extradition treaty between Singapore and Romania.

In response, MFA said then that as an accredited diplomat, Mr Ionescu could not be arrested even if he did not leave Singapore after the accident – unless the Romanian government waived his diplomatic immunity.

It was only after the Romanian government officially withdrew him from Singapore, thus ending his diplomatic posting, that he could no longer claim immunity for the accident, said MFA then.

He was eventually prosecuted and sentenced to six years behind bars in Romania.

In June 2023, Australia’s Prime Minister Anthony Albanese, citing national security concerns, announced plans to cancel Russia’s lease on a piece of prime land in Canberra where Russia had planned to build a new embassy.

In response, Russia allegedly sent a diplomat to squat in a small shed on the land. He could not be arrested because of his diplomatic immunity.

The man eventually left the site in a diplomatic vehicle when Australia’s High Court dismissed Russia’s attempt to temporarily hold on to the site.