The US Department of State has announced its conclusion that requiring Anne Sacoolas to return to the UK to face a criminal charge would set a precedent that would weaken diplomatic law. However, a closer look at diplomatic law reveals that this claim does not hold up.
In late 2019, US citizen Anne Sacoolas, who during her brief stay in the UK had enjoyed diplomatic immunity from criminal jurisdiction, was formally charged by the police with killing young British motorcyclist, Harry Dunn, by dangerous driving. Since she had returned home, an application for her extradition to face this charge in a UK court was duly made by the British government to the US State Department under the controversial US-UK Extradition Treaty of 2003. However, on 23 January this request was turned down, the first time this had happened to a UK application under the new arrangement with Washington. ‘If the United States were to grant the UK’s extradition request,’ the State Department claimed, ‘it would render the invocation of diplomatic immunity a practical nullity and would set an extraordinarily troubling precedent'. In order to understand why this is wrong, it is necessary to go back to basics.
Diplomatic law is found principally in the Vienna Convention on Diplomatic Relations 1961, which entered into force in 1964 and – with slight modifications of no significance for this case – was embodied in US law in the Diplomatic Relations Act 1978. Under this body of law, alleged criminal offenders among diplomatic officers and also members of the administrative and technical staff of embassies, together with their families, are entitled to claim diplomatic immunity, chiefly to guard them against trumped up charges in hostile states and thus allow them to fulfil their diplomatic functions without fear. In practice, diplomatic immunity (here ‘personal inviolability’) means not only immunity from local jurisdiction but also immunity from arrest or detention. Receiving states might ask for the immunities of diplomats or family members accused of crimes to be ‘waived’, but if sending states refuse such requests (as is reported to have been the case with Anne Sacoolas), those charged are free, if they wish, to return home. Once back in the sending state, the diplomatic functions of the individuals concerned cease and with this usually all of their former privileges and immunities disappear as well. (The exception is in the case of acts performed in their official capacity, for which there is indefinite residual immunity. But, as the international lawyer Professor Tarcisio Gazzini points out, this ‘is obviously not the case of Mrs Sacoolas.’) By this time ordinary citizens – and always providing the states concerned are parties to an extradition treaty – a request for their extradition is possible and the only legal option remaining. But the State Department maintains that agreeing to such a request would ‘render the invocation of diplomatic immunity a practical nullity’ – legally void. Is this true? Of course not; in fact, rather the reverse. It might as well be said that waiver of diplomatic immunity, for which the Vienna Convention provides in a full article (no. 32), has an even more damaging consequence.
In granting a request for the extradition of a former diplomat, diplomatic immunity would be seen to retain its potency for short-term national protection for the diplomatic officer still in post, while the sending state’s change of mind in granting extradition – prompted perhaps by new evidence or a reconsideration of existing evidence – would show that diplomatic immunity does not let diplomats evade justice. And this is important because it is precisely the popular belief that it does just that which has for long been the most serious threat to this fundamental principle of international law, the reason for which is not widely understood. Indeed, awareness of this was an important impulse behind the decision of the UN in the late 1950s to require the International Law Commission to make proposals for the codification of diplomatic law, because the emergence of new states from the old colonial empires at that time heralded a huge expansion in the size of capital city diplomatic communities. Knowing that a denial of waiver might not be the end of the story might also make diplomats more careful to avoid breaking the laws of the receiving state in the first place and thereby further contribute to better diplomatic relations.
In sum, the US State Department’s claim that agreeing to the UK request for the extradition of Anne Sacoolas ‘would set an extraordinarily troubling precedent’ is specious. Rather than reflecting a genuine concern for the sturdiness of diplomatic law, the refusal of extradition is probably designed for no other purpose than to mask a further demonstration that ‘America first’ is the governing credo of the Trump administration. Agreeing to extradition in this case would set a good precedent for diplomatic law, not a bad one.
An earlier version of this blog appeared first on the personal blog of Prof G R Berridge and is republished here with permission.