This article has been authored by Somya Kumari, a third-year student at WB National University of Juridical Sciences (NUJS), Kolkata
In International law, the term ‘diplomatic immunity’ applies to the immunity that foreign nations or international bodies, as well as their official families, enjoy from the authority of the country of which they are serving. The latestdiplomatic conflict between the United States and the United Kingdom, following a deadly traffic collision involving the spouse of a US diplomat, brought attention to diplomatic immunity and its alleged misuse. The incident took over on 27th August 2019, a car left RAF Croughton, an Imperial Flying corps base in Northamptonshire utilized by US powers and was driven on the opposite side of the street and collided with a motorcycle ridden by Harry Dunn, a 19-year-old British man. The driver was Anne Sacoolas, the spouse of a US government worker at the base. The police called Sacoolas for questioning, before she returned to the US in the blink of an eye a short time later. The UK government requested her extradition, but the US government rejected the request.
The importance of invoking a diplomatic immunity under the Vienna Convention on Diplomatic Relations (1961)
The legal immunity for diplomatic agents is codified in the Vienna Convention on Diplomatic Relations 1961 (VCDR), to which over 190 states are parties. In the UK, a diplomat in post is completely immune from criminal proceedings as well as civil proceedings with exceptions provided under the VCDR. This is codified to ensure that diplomatic relations are maintained even during periods of conflict. In general, the diplomatic immunity could be invoke under the VCDR on three situations: (i) where the individual is a member of a permanent diplomatic mission; (ii) where the individual is a member of a special mission which has been sent here; and (iii) where the individual is an accredited diplomat of one state and is in transit. It is also mentioned under the VCDR that the receiving state must consent to the nomination of the head of a permanent diplomatic mission. The receiving state must also be notified of "the recruitment of members of the mission, their departure, and their final arrival or termination of their duties with the mission."
The UK’s obligations under VCDR are implemented through the Diplomatic Privileges Act 1964. This immunity applies to the diplomat's relatives, so Anne Sacoolas could not be sued or prosecuted in the United Kingdom as long as her spouse occupied the diplomatic immunity-granting position. The Diplomats enjoy indefinite protection for their official activities, and this privilege extends to their spouses. This was referred under Section 4 of the Diplomatic Privileges Act 1964, ‘If any question occurs in any litigation whether or not some person is entitled to any privilege or immunity under this act, a certificate given by or under the authority of the secretary of state stating any fact relating to that matter shall be definitive proof of that fact’. However, in England the Foreign and Commonwealth Office (FCO) doesn't confer immunity but it might furnish a court choosing the issue with a certificate concerning current realities whereupon the court will choose whether an individual has privilege. It is a matter of law for the court to choose whether to grant immunity or privilege to diplomats. Hence, the statement made by the FCO is highly important for the matter. In the present case, the FCO decided to give immunity to Anne Sacoolas, the wife of a British intelligence officer, enabling her to leave the country before the Northants police inquiry was completed. It is still uncertain if the FCO can clarify its logic.
Later, the FCO decision was challenged by the Claimants (Dunn’s Family) in the High Court of the United Kingdom. The claimants argued that the FCO has provided unlawful advice that Ms. Anne Sacoolas has criminal immunity and secondly, this resulted in a violation of the United Kingdom's procedural commitments under Article 2 of the European Convention on Human Rights of 1950, which obliged the government to perform a thorough investigation into Mr. Dunn's murder. The claimant relied on arguments that the Diplomatic Notes shared between the United States and the United Kingdom between 1995 and 2006, which clarified the immunities granted to Croughton's administrative and technical personnel and stated that the United States had waived its ability to claim criminal protection on their behalf for actions performed outside of official duties. Therefore, Mrs. Sacoolas was not entitled to criminal protection, since the Diplomatic Notes did not specifically give immunity to the families of embassy employees.
Now the High Court observed that the Claimants' claims were based on the premise that the Diplomatic Notes were a legally binding document that granted Croughton embassy personnel rights and immunities, as well as "derivative" protection to their relatives. However, the High Court rejected this assumption, stating that the rights and immunities granted to Croughton employees and their families were granted under the Vienna Convention on Diplomatic Relations 1961(VCDR). The VCDR is a long-standing international convention that grants various degrees of rights and immunities to various groups of foreign officials. Families of embassy staff members are granted immunity from seizure, incarceration, and conviction under the VCDR. States who are party to the compact, such as the United States and the United Kingdom, must extend these immunities until they revoke their right to assert privileges.
In the present case, the Court observed that the Diplomatic Notes relied on by the Claimants were signed between the United States and the United Kingdom as a tool to enforce the VCDR, not as an independent treaty. The Court found out that family immunities are not “implied or derived” from embassy personnel under the VCDR, but are given separately. The Court also looked at the waiver in the Diplomatic Notes and ruled that it only extended to Croughton ambassador employees, not their relatives, since waivers of privilege must be clear and precise. Article 37.1 of the VCDR regime stipulates the inviolability of family members of diplomatic officers, while Article 37.2 stipulates the inviolability of family members of administrative and technical workers. If the family members of these workers are not citizens or permanent residents of the receiving State, these two provisions provide them with the same inviolability as the official: they are free from prosecution, imprisonment, or any other kind of intervention by the receiving State's authority, and they should be positively shielded from any kind of physical assault or deprivation of their integrity. Therefore, the Court held that Anne Sacoolas was entitled to criminal immunity under the VCDR at the time of Dunn’s death.
In conclusion, the justification for diplomatic immunity, for all ambassadors and their relatives, is plain and straightforward: to shield the ambassador from any interference with his or her duties. Politically driven trials remain a source of concern, with examples abounding in many countries of government critics and political opponents facing completely fabricated accusations of sedition, bribery, corruption, and even assassination. Since the VCDR scheme is founded on reciprocity, making exceptions to immunity which are appropriate for diplomats in countries like the United Kingdom or Australia, but not for diplomats in countries where the rule of law is not followed. Traffic crimes, on the other hand, are usually scientifically verifiable and thus less vulnerable to political exploitation. Considering the level of diplomatic immunity violation in all traffic issues, from parking tickets to resulting in death, the international community is long overdue to change the rule.