On The Problematic Doctrine of Diplomatic Immunity

What is diplomatic immunity?

Diplomatic immunity is a protection given to diplomats to allow them to carry out their mission; facilitating diplomatic relations between nations. A diplomatic agent receives immunity because ‘[h]uman agents have a corporeal vulnerability not shared by the incorporeal state which sent them.’ I.e.: if a diplomat were not protected by diplomatic immunity, it could be dangerous for them to travel to other countries, and their functions may be impeded by fear of repercussions for their actions in pursuit of their mission or by threats or coercion from the receiving state.

The Vienna Convention on Diplomatic Relations (“VCDR”) represents international consensus on the immunities enjoyed by diplomatic agents. It is given force by the Diplomatic Privileges Act 1964 (“DPA”) in the UK. Article 31 of the VCDR gives absolute immunity from criminal jurisdiction, and immunity from civil jurisdiction except for in certain circumstances. Article 37(1) gives family members of the diplomatic agent immunity.

Article 39(2) dictates that once a diplomatic agent is no longer in post, they receive residual immunity: if they acted outside their official functions, they do not receive immunity.

The immunity enjoyed by diplomats and state officials is seen as procedural: it bars a claim being considered altogether, rather than qualifying a substantive right.

Why is it problematic?

Although VCDR article 41 VCDR states that diplomats and their family must respect laws and regulations of host country, we still see incidents where diplomats have taken advantage of their status. The sending state may waive immunity for the individual responsible, however, if it does not, it can lead to a lack of justice for the victim. This affects their rights to a fair trial and an effective remedy.

Although a diplomat receives only residual immunity when no longer in office, whilst in office, they receive wide-ranging immunity. This allows them to disregard the law and fundamental human rights in two situations:

1. Where the act is a criminal wrong; or
2. Where the act is a civil wrong and considered within their ‘official functions’.

Diplomatic immunity is not a novel issue. The Thatcher government came under pressure to restrict diplomatic immunity in 1984 when it was thought that WPC Yvonne Fletcher was murdered in the Libyan Embassy. When statistics of diplomats’ crimes were published in 2011, they revealed that 122 serious offences had been committed by embassy staff between 1999 and 2004.

Recently in the UK we have seen public outcries over the Harry Dunn incident. Other cases involving diplomatic and state immunity that have recently made it to the UK Supreme Court regarding human rights abuses through civil wrongs include Reyes and Benkharbouche. The issue is receiving attention and rightly so.

Diplomatic agents are in an opportune position to perpetrate abuses of human rights. Fundamental rights such as freedom from torture or slavery have been breached without remedy. Failure to respond to these abuses allows institutional impunity which is why it is so important to resolve its conflict with and protect human rights.

What happened in the Harry Dunn case?

In the Harry Dunn case, Ms Sacoolas was driving away from the RAF Croughton facility, an intelligence base for America where she and Mr Sacoolas resided. She hit Harry Dunn while driving on the wrong side of the road. He passed away in hospital following the incident.

Ms Sacoolas claimed diplomatic immunity and left the country to return to the US. The UK courts and the Foreign Office agreed that the law on diplomatic immunity was clear at this point: Ms Sacoolas had diplomatic immunity as a family member of Mr Sacoolas, a man working on behalf of the US government at the intelligence base.

An unusual situation that proved to no avail was that employees at Croughton were covered by the Croughton agreement: immunity is waived if the wrongdoing occurred outside of an employee’s functions. Family members were not included in this, so originally Anne Sacoolas still received immunity, a loophole which has now been closed. However, it was later discovered that Anne Sacoolas may also have worked at the facility, and if so, should not have received immunity. Other arguments being raised are those of vicarious liability: that Jonathan Sacoolas could be liable for allowing Anne to drive his car.

The US denied the UK’s extradition request. A civil case for damages is now being pursued in Virginia by Harry Dunn’s family. They are also pursuing a criminal case, details of which have yet to be shared.

Is the issue resolvable?

It is clear that diplomatic immunity does not reflect the reality of international interactions as they have developed to the present day. In recent years, the courts have been able to play a role in developing the doctrine of diplomatic immunity.

In Reyes,a case involving residual immunity, a diplomat who was no longer in office, and therefore had residual immunity, was denied diplomatic immunity by the Supreme Court for trafficking their domestic servant.

The relevant part of the judgment in Reyes, however, is the obiter discussion of the future of diplomatic immunity and the interpretation of what should be considered to come under ‘official functions’ of a diplomat. In this way, Lord Wilson’s obiter could prove crucial in developing diplomatic immunity to be more in line with human rights.