Diplomatic Community

By: Stuart White 11-10-2019

Categories:HRMC Articles written by Managing Director, Stuart White,

Ask anyone who’s ever traveled regionally in a car with diplomatic plates and they’ll tell you what a pleasure it is. You breeze through international borders without having even to stop or queue and you are waived through any roadside police or military checkpoints.  

The reason for this is that the vehicles’ occupants automatically enjoy ‘diplomatic immunity’, defined in international  legal terms as  ‘the immunities enjoyed by foreign states or international organisations and their official representatives from the jurisdiction of the country in which they are present’.  These immunities are a time-honoured tradition dating back several millennia, coming about at first through courtesy and custom but over the centuries gradually being enshrined in international law, a privilege which ensured exchanges of information, maintained contact and granted messengers safe-conduct. Traditional mechanisms of protecting diplomats included religious-based codes of hospitality and the frequent use of priests as emissaries.   In the ancient world Greek heralds, recognised as inviolable by the city-states, procured safe passage for envoys prior to negotiations and as empires in China, India, and the Mediterranean grew more powerful, diplomatic protections decreased. The law of diplomatic immunity was significantly developed by the Romans, who grounded the protection of envoys in religious and natural law, guaranteeing the unassailability of ambassadors even after the outbreak of war. 

During the Middle Ages in Europe, envoys and their entourages continued to enjoy the right of safe passage,  By the Renaissance permanent embassies developed, and the number of embassy personnel as well as the immunities accorded to them expanded, treating diplomats, their residences, and their goods as though they were located outside the host country—under the doctrine of ‘quasi extra territorium’ (Latin: “as if outside the territory”),  developed by the Dutch jurist Hugo Grotius (1583–1645) to sanction such privileges.  Later treaties—such the 17th-century agreement between England and the Ottoman Empire that forbade searches of the British embassy, exempted the servants of embassies from taxes, and allowed the ambassador wine for his own use -  and statues such as the Act of Anne (1709) in England exempted ambassadors from civil suit and arrest – further cemented such privileges and immunites.

By the late 19th century, the expansion of European empires had spread the convention throughout the world.   However, such privileges carry with them the possibility of abuse and the position of diplomats and the public respect they enjoyed declined substantially in the 20th century. This development, combined with certain other factors including the substantial growth in the number of new states after World War II, an increase in the size of diplomatic missions, and the increasing prevalence in international law of the view known as functionalism (according to which diplomatic privileges should be limited to those necessary to enable a diplomat to accomplish his mission)—led eventually to the Vienna Convention on Diplomatic Relations (1961), which restricted the privileges granted to diplomats, their families, and staff. Avoiding controversial issues such as diplomatic asylum and focusing on permanent envoys,  the convention accorded immunity from criminal prosecution and from some civil jurisdiction to diplomats and their families and lesser levels of protection to staff members, who generally were given immunity only for acts committed in the course of their official duties. 

So that is a potted history of the convention of diplomatic immunity and the noble reasons by which it came  about  but the drawback is that it relies somewhat on the  conscience and moralities of differing national missions.  Transgressions range from the trivial ‘pushing their luck’ offences, such as refusal to pay parking fines (it’s estimated by the British Foreign Office that diplomats currently owe £100m ((P1500m) in unpaid congestion charges alone) to the very serious.  One high-profile case involved PC Yvonne Fletcher, a London Metropolitan Police officer who died policing a demonstration outside the Libyan embassy in London in 1984 after being hit by gunfire from a first-floor embassy window.  After an 11-day siege of the building, the UK government arranged for the deportation of a number of Libyan diplomats but diplomatic immunity meant the police could not search the bags of the diplomats and staff being deported and thus identify the culprit.  
In 2017, there were 12 serious offences allegedly committed by people entitled to diplomatic protection in the UK, five being driving related but other crimes included sexual assault, blackmail and possession of a firearm and let’s not forget the case of Julian Assange, an Australian national who sheltered in the Ecuadorian Embassy in London to avoid facing sexual assault charges in Sweden and extradition to the USA for his role as founder of Wikileaks for almost 7 years, finally being forcibly removed in April this year.

The immunity controversy has reared its ugly head again in the past week with the case of Anne Sacoolas, the wife of a  US diplomat based in the UK who was questioned by British police after she was allegedly involved in a car accident which killed teenager Harry Dunn in August.  Having assured the police that she would make herself available for possible further questioning, Mrs. Sacoolas was spirited out of the country and back to the USA by private jet last weekend, under the umbrella of diplomatic immunity, an act which is causing a major furore.  Harry Dunn’s grieving family have appealed to her better nature, Prime Minister Boris Johnson has made a formal appeal to his US counterpart, Donald Trump, to review the situation and the British press has taken up the cudgel on the family’s behalf.

It’s a tricky one.  Firstly, Mrs. Sacoolas had not been charged with any offence before she left and secondly because as the wife of a serving mission staff member she  would have been covered by the diplomatic immunity umbrella of the Vienna Convention.  The latter, however, is not universally extended to serious crimes.  One comparable precedent occurred in the United States in 1997 where a Georgian diplomat killed an American teenager in a car accident.  Georgia removed the diplomat's immunity and he was convicted of involuntary manslaughter, according to a report by the Congressional Research Service.  However,  it is also a convention that the US State Department  closes ranks where its own citizens are concerned and an official statement commented that  diplomatic immunity was "rarely waived".

Policy is  policy and it seems unlikely that Mrs. Sacoolas will be surrendered to British authorities any time soon.  But then again, that hundred million pound unpaid congestion charge bill stands even less chance of being paid any time soon. Diplomatic immunity is an honoured protocol but in the words of Hamlet perhaps occasionally it should be ‘a custom more honoured in the breech than in the observance’.