Diplomatic Immunity: To Waive or Not to Waive

Guest post by Professor Craig Barker, Dean of the School of Law and Social Sciences at London South Bank University.

The death of Harry Dunn in Northamptonshire in August was allegedly caused by the wife of an American diplomat, Anne Sacoolas. Mrs. Sacoolas responded to initial police questioning in the case but later left the United Kingdom claiming diplomatic immunity to avoid potential criminal charges.

The case has caused public outrage in the UK and has once again raised the question of the validity and fairness of diplomatic immunity, At the time of writing there is some question as to whether Mrs. Sacoolas was in fact entitled to claim diplomatic immunity given that doubts have been raised regarding her husband’s formal accreditation as a diplomat. Nevertheless, the issues relating to diplomatic immunity remain central to the case.

Diplomatic immunity is a centuries-old principle of international law that can be traced back to ancient times. Its present incarnation is found in the Vienna Convention on Diplomatic Relations of 1961, which is considered as one of the most successful multilateral conventions of all time, with 192 states parties. The convention requires that diplomatic representatives serving in foreign states are protected, and provides that they should be immune from both the criminal and much of the civil jurisdiction of receiving state.

The justification for diplomatic immunity is to ensure the protection of diplomats in what can sometimes be very hostile and unfriendly environments, and to limit interference with their work. As the visible personification of a foreign state resident in a country, diplomats often face harassment and sometimes violence and, occasionally, death. The requirement that diplomatic immunity should be extended to the families of diplomats is equally well established and is justified on the basis that the harassment of diplomats’ families serving abroad can be as debilitating to the functions of a diplomat as harassment of the diplomats themselves.

Diplomatic immunity is not, as many would suggest, the equivalent of a “get out of jail free card”. Diplomats and their families are specifically required to comply with the local laws of the country in which they serve (Article 41). Where they do commit an offence, they can immediately be declared persona non grata and required to leave the country (Article 9). This potentially would signal an end to their diplomatic careers if the offence of which they are accused is considered serious enough.

Diplomatic immunity, which is effectively given to the sending state, as opposed to the individual can be waived by the sending state (Article 32) resulting in the relevant diplomat facing prosecution in the sending State. This happened in the cases of the Zaire Ambassador to France in 1996 and a Georgian diplomat to the United States in 1997, both of whom had killed individuals in road traffic accidents and both of whom received jail sentences in the receiving state.

Diplomats serving abroad are not immune from the jurisdiction of their home state and can be prosecuted there if the relevant courts are able to assert jurisdiction in relation to actions carried out abroad (Article 31(4)). Finally, diplomatic immunity does not exist in perpetuity. Where a diplomat acts in exercise of his or her functions then immunity continues but where they are acting in their private capacity, immunity is removed and the individual can face charges or a civil action in the receiving state, assuming time limitation have not expired (Article 39(2)).

It may be possible for the family of Harry Dunn to sue Mrs. Sacoolas in an American court, or for the UK authorities to bring a criminal charge against her in the UK were she to return voluntarily or be extradited here.

Of these counter-balances to the granting of diplomatic immunity, waiver ought to be the most effective deterrent against abuse. Nevertheless, state practice is patchy at best in terms of states being willing to waive immunity. Professor Eileen Denza, a leading authority on diplomatic law, has suggested that “in recent years, waivers of immunity have been more rigorously sought in the light of public concern at the abuse of diplomatic immunity and … more readily granted.”.

However, the policy of the United States has been more circumspect. In a 1986 State Department Guidance memorandum to the US Foreign Service it was stated that “while the power to waive immunity is always available, it is the usual practice of the Department of State to waive only in benign circumstances”. This policy, although apparently out of line with the spirit of the Vienna Convention, is designed to encourage US diplomats to undertake foreign postings by giving assurance that they will not become pawns in the broader diplomatic and political vagaries of US relations with foreign states.

The ball, in the present circumstances, is firmly in the hands of the United States and the question facing the United States is whether to continue their policy of non-waiver and refuse to waive the immunity of Mrs. Sacoolas, assuming that such immunity does in fact exist. If they chose not to waive immunity, then that is their right and would be in line with their existing practice. If they choose to waive immunity on this occasion, then they would be applauded for allowing the Dunn family to pursue their stated aim of securing justice for their son Harry.

Professor J Craig Barker is Dean of the School of Law and Social Sciences at London South Bank University. He has researched the area of diplomatic immunity for over 30 years and is the author of The Abuse of Diplomatic Privileges and Immunities: A Necessary Evil? (1996) and The Protection of Diplomatic Personnel (2006).

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