Diplomatic Immunity: A Carte Blanche for Misconduct?

Categories: Current Issues Blog

Diplomatic Immunity: A Carte Blanche for Misconduct?

By William McEwan

Do “Get Out of Jail Free Cards” exist outside the realm of Monopoly? For Anne Sacoolas—the wife of U.S government employee, Jonathan Sacoolas—one might argue they do.^{^[1]} In August of 2019, Mrs. Sacoolas struck and killed Harry Dunn, a nineteen-year-old British citizen, when she was driving on the wrong side of the road outside of an R.A.F army base in Croughton, U.K.^{^[2]} Prior to the incident, Mrs. Sacoolas had been living in the U.K for several weeks with her husband while he worked for the U.S government at a British air force base.^{^[3]}

In the wake of Harry’s death, the U.S. government invoked diplomatic immunity on Mrs. Sacoolas’ behalf and she fled the U.K.—initiating a three year civil and criminal battle in both the U.S and U.K court system.^{^[4]} Over three years later these proceedings are beginning to close; however, questions still remain. Specifically, how did this happen, how can this be prevented in the future, and has diplomatic immunity become more akin to diplomatic impunity?

The Story in the Courts

In 2019, the British Crown Prosecution Service (“BCPS”) charged Mrs. Sacoolas with causing the death of Harry Dunn.^{^[5]} However, because of the immunity invoked on her behalf, there was one major problem: Mrs. Sacoolas was not in the U.K. and was under no obligation to return.^{^[6]} The BCPS made an extradition request to the U.S. which was summarily denied by the State Department—a decision described as final.^{^[7]} The Trump administration supplemented this decision by stating that “granting the request would render the invocation of diplomatic immunity a practical nullity.”^{^[8]} This unsatisfactory result left the family of Harry Dunn with little recourse for the death of their son—so they tried their luck on U.S. soil.

On the 9th of September, 2020, the Dunn’s filed a civil wrongful death suit against Mrs. Sacoolas in the United States District Court Eastern District of Virginia. ^{^[9]} In September 2021, the parties reached an undisclosed settlement and the door closed on the civil chapter in the proceedings.^{^[10]} Nevertheless, the Dunn’s, the British Public, and Parliament still felt an overwhelming sense of injustice that Mrs. Sacoolas had yet to face criminal charges in the U.K.^{^[11]} This sense of injustice lingered for two years, until a particularly savvy change to the U.K.’s Justice Act of 2003 (the “Justice Act”) opened the door to a potential prosecution in England.^{^[12]}

On the 28th June, 2022, the Justice Act was amended to give courts the power to “require or permit a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link.”^{^[13]} This change in the law enabled Mrs. Sacoolas to appear before a criminal court in the U.K. via video link, circumnavigating the previous requirement of in-person appearances.^{^[14]}On the 20th October, 2022, Mrs. Sacoolas appeared before the Old Bailey Magistrate court via video link and pleaded guilty to the charge of causing death by careless driving.^{^[15]} She is due to be sentenced in November.^{^[16]} After nearly four years, it appears justice may be close for the Dunn family. Or is it in fact, just smoke and mirrors?

The reality remains that in the absence of extradition, there is nothing compelling Mrs. Sacoolas to travel to the U.K to receive punishment. A fact presiding Judge Cheema Grubb is well aware of, explaining at the hearing “[i]t is agreed that any sentence I pass is unlikely to be enforceable while the defendant remains outside of the United Kingdom. There is no order I can make to compel her appearance at the central criminal court for sentence.”^{^[17]} Thus, while the Dunn’s may feel some reprieve to have an official record of their son’s killer’s guilt, they must continue to wait to find out if Mrs. Sacoolas will receive an enforceable punishment. A fate that is entirely in her hands.

Loophole in the Law

The framework of diplomatic immunity rests upon the Vienna Convention of 1961.^{^[18]} The agreement between 190 states outlines the protections that family members of state officials enjoy. Specifically, Article 37(2) of the Vienna Convention, 1961 states:

Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or 12 permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.^{^[19]}

This article provided the driving force for Mrs. Sacoolas’ enjoyment of diplomatic immunity.^{^[20]} However, states can supplement the Convention agreement with their own agreements. When the United States invoked diplomatic immunity on behalf of Mrs. Sacoolas, they utilized what has since been referred to as a “legal loophole” in the agreements between the two states.^{^[21]} The U.S. and U.K. agreed to allow the potential prosecution of U.S. staff for crimes committed beyond their duties—but their families had greater protections.^{^[22]} This meant that while Mr. Sacoolas may not have enjoyed immunity if he had committed the same crime as his wife, she enjoyed protection under this anomaly in the agreement.

In light of the serious diplomatic tensions between the U.K. and U.S. in the years after Harry’s death, and persistent lobbying from the Dunn family, the agreement was amended to strip family members of their diplomatic protections in future cases similar to Mrs. Sacoolas’.^{^[23]} Foreign Secretary Dominic Raab claimed the development had “closed the anomaly that led to the denial of justice in the heartbreaking case of Harry Dunn.”^{^[24]} While this is progress for future incidents, the amendment does not work retroactively.^{^[25]} Nothing changes in the case of Mrs. Sacoolas. The Dunn’s must still wait in anticipation to see if Mrs. Sacoolas makes the trip across the Atlantic to be sentenced next month.

Is Diplomatic Immunity Really a Carte Blanche for Misconduct?

The Government of the Netherlands says no.^{^[26]} In part, stating “The Vienna Convention does not give diplomats carte blanche for misconduct. Diplomatic immunity does not place diplomats above the law and diplomats are obliged to conduct themselves in accordance with the laws of the receiving state.”^{^[27]} Yet, in cases like this, that hardly seems to be true. Mrs. Sacoolas did not conduct herself within accordance with the laws of the state, and for over three years she has faced no consequences. She has effectively enjoyed impunity, not immunity.

By no way is this article arguing that diplomatic immunity is frivolous or unnecessary. The Vienna Convention is vital to maintaining successful international relations and its importance cannot be underestimated.^{^[28]} However—as applied—there are unquestionable flaws. The unpardonable vice of diplomatic immunity, is not that it exists, but that its existence can lead to cases of immense injustice, like the case of Harry Dunn. As such, states must take it upon themselves to rectify loopholes and anomalies in their immunity agreements before tragedy strikes again. Additionally, no harm could occur in reminding state officials and their family members to drive on the correct side of the road.