On August 27, 2019, Anne Sacoolas, the wife of a US diplomat stationed in the UK, ran over and killed the nineteen-year-old Harry Dunn. Sacoolas, only in the UK for three weeks by that point, was apparently driving on the wrong side of the road. While initially indicating that she intended to remain in the country, she later fled the UK and claimed diplomatic immunity, which had been extended to all Americans working at the RAF Croughton communications base – and their families – in 1994.  The tragedy has the makings of an international incident. The Dunn family’s initial request for a waiver of her immunity was denied. Nevertheless, they are yet again asking for a waiver, and for her to be extradited. In addition to which, they have made a public appeal for her to return to the UK and face the consequences of her actions. And finally, Prime Minister Boris Johnson claimed today that he would ask Donald Trump to intervene.

Unfortunately, modern day US practice with regard to diplomatic immunity does not appear to be on the side of the Dunn family. The 1961 Vienna Convention, article 31, states quite clearly that a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state – unless the agent or their government consents that they shall be subject to the jurisdiction concerned. In which case, a waiver of immunity will be granted. However, this is rarely done by the United States. The US State Department’s policy in this area is encapsulated in a memorandum from 1986, which outlines two main principals. First, that the State Department will usually only grant waivers in “benign circumstances” (such as to allow someone to give testimony in a court case) and that moreover, it is up to the State Department alone to waive such immunity. That right does not reside with the individual in question. As such the US State Department is unlikely to grant such a waver – and indeed, have refused to do so even when allegations of rape have been made against a diplomat’s spouse. As such, direct appeals to the driver, serve no legal purpose.

Finally, the current international state of affairs also does not bode well for such a waiver. Trump – he of the “America First” slogan – could face a significant degree of backlash were he to order the extradition of a US citizen – the wife of a service member no less. Plus, he is under an impeachment investigation for impropriety in his dealings with foreign governments, and he may not wish to be seen doing favors for people who he was recently seeking favours from. Lastly, Johnson’s increasingly desperate position amid the ongoing saga of Brexit gives him little leverage with the current occupant of the White House. At least for the time being, it seems that Mrs Sacoolas will not have to face any consequences for her actions.

You will no doubt be unsurprised to hear that this is not how things used to be. In the seventeenth-century, diplomatic immunity (what it covered and to whom it applied) was far from settled. Linda and Marsha Frey’s 1990 discussion of the famous Sá incident demonstrates just how unsettled the matter was. In late November of 1653, the brother of the Portuguese ambassador in London became embroiled in a fight in the fashionable New Exchange in the Strand.

What follows is the account given of the affair by Lorenzo Paulucci, the Venetian Secretary in London:

“Last Monday at the new Exchange, a public place at present much frequented by ladies and gentlemen of condition during the tedious hours of the night an accident occurred of sufficient importance to warrant a detailed account. That evening the brother of the Portuguese ambassador was accidentally jostled there by an English gentleman. For this or, some say, because of insulting language, the Portuguese in a great rage, drew his sword and mortally wounded the Englishman, who even in that state used his adversary roughly. The Don’s attendants intervened at once and the affray was stopped for the moment. But it left so much irritation that on the following morning early the Portuguese returned to the spot, some 50 in number, armed with every sort of weapon, with the determination to avenge themselves on the first Englishman who might appear, and barred the way. Two English gentlemen, each with a lady at his side, then appeared on the scene and attempted to pass, utterly unconscious of all that had taken place and only desiring to purchase fashionable articles for their approaching marriage. Without more ado the Portuguese drew upon them. The English gentleman was killed by a pistol shot, his betrothed swooning away, thus experiencing the extremes of joy and grief. Another Englishman was also killed and several wounded, whereas the aggressors, being armed for defense and offence received no injury whatever. The affrighted tradesmen all took refuge in their shops and the Portuguese remained masters of the whole of Britain’s Bourse, until the news reached the horse guards, always on duty near the palace. These restored order by capturing five of the Portuguese and putting the rest to flight. Unless the prisoners inform against the murderer all five of them, according to a fundamental law of the land, are liable to death, and above all the ambassador’s brother himself, if it is proved that he committed the homicide. A number of other troops surrounded the ambassador’s dwelling and demanded his brother who was handed over to them accordingly. The ambassador’s earnest entreaties to General Cromwell for his brother’s release availed nothing for yesterday he was removed to the Tower. It is firmly believed that the government will inflict the extreme penalty on him and his five accomplices as the crime was premeditated and treacherous. By infringing the prerogative of the state and the liberty of the subject it may be said to affect the whole nation at one and the same time. It was further aggravated by very foul suspicions by the discovery in the Portuguese coaches of a quantity of gunpowder and some grenades and other explosives. This incident is calculated to upset entirely the adjustment between the two countries, as no peace has yet been proclaimed.”

As Paulucci indicates, the incident could hardly have come at a worse time. Cromwell was in the midst of negotiating a peace treaty with Portugal. A treaty that King John IV desperately needed in light of the ongoing struggle against Spain, which claimed sovereignty over the country. And, having initially backed the Royalists in the English Civil War, the Portuguese were not starting the talks on a firm footing. But few other allies were available. France did not wish to bring Spain to their doorstep, and the Dutch were certainly going to take the opportunity to prey on the Portuguese’s overseas empire in its weakened state. John needed Cromwell. And Cromwell – in turn – needed international recognition for his regime, founded as it was upon the execution of Charles I.

Against these odds, the Portuguese ambassador tried to save the life his brother, arguing that such a trial could not take place because it would violate the law of nations. The legal matters were referred to a number of experts, but all that they could agree on was that murder violated the laws of nature – as opposed to local, “municipal” laws of individual states – and the law of God. But who had the right to try an ambassador? Did an ambassador give up his privileges if he broke the law of nations? Eventually it was concluded that an ambassador could be tried for a crime such as murder. But did this answer apply to Sá?

Sá’s defense, as he outlined in a pamphlet about the affair, called A Narration of the late Accident in the New Exchange, was not well calculated to inspire sympathy. He complained that the prison was awful, English justice bad, and that he – far from home – was hated unfairly by all. And that this “unhappy accident” was not his fault. He’d had no idea that his servants would follow him back to the New Exchange, and that blood was shed on both sides in the rumble. Moreover, Sá asserted that that he was immune from any such proceedings as both the brother of the ambassador, and because he was credentialed to act in his brother’s stead when he was absent.

And even though the letters he presented confirmed that John IV intended to make him ambassador after his brother departed, the judges appointed to the court set to hear the case ruled that he had no actual appointment now. Nor was his relationship such that the ambassador’s immunity extended to him, being but a brother and not a spouse or child. And therefore, he had no claim to immunity. Moreover it was argued by the judges that the extension of diplomatic immunity to any and all in an ambassador’s employ or entourage was not to the public’s benefit. At his trial – during which he had no counsel as that was not standard in English jurisprudence at the time – Sá plead not guilty. Nevertheless he was convicted. Only Oliver Cromwell could save him. But Cromwell remained unmoved, and following a few desperate escape attempts, Sá was beheaded, at the age of 19, on July 10.

Paulucci once again wrote to the Doge and Senate with the details:

“he was beheaded in public, his fate exciting universal compassion. An English servant was hanged as an accomplice acquainted with the law of the land and two other Portuguese have had their punishment commuted to imprisonment, as subject to their master’s orders. He displayed exemplary firmness in his last moments with every mark of devotion and resignation to the will of God, without the least tremor, and to the confusion of the heretics, holding the rosary in one hand and a crucifix in the other, his intrepidity drawing tears from many and the compassion of all. Had Cromwell pleased he might have granted him a pardon or at least a reprieve until the meeting of parliament. Instead the Portuguese and the other ambassadors were deceived in their expectations and he let the law take its course, possibly thinking that the unpopularity of commuting sentence on a murderer might injure him, and so he agreed to the execution from self interest. On the eve of it the ambassador, without waiting to hear from Portugal signed and fully ratified the treaty of peace, in the belief that he might thus promote his brother’s safety.”

General opinion at the time seems to indicate that the execution was politically motivated, and while ‘just’ by the standards of the day, was not carried out entirely in the interests of justice. Politics played a part as well. The case was later cited by legal theorists of the seventeenth century while they struggled with the questions surrounding diplomatic immunity – who did it apply to, and could it always be drawn upon? But while the law is somewhat more settled now and enshrined in documents such as the Vienna Conventions, the politics are not. And the potential denial of justice to the Dunn family seems every bit as inhumane as the events that took place nearly four hundred years ago.

References:

Frey, Linda and Marsha Frey. “The bounds of immunity: the Sá case. Politics, law, and diplomacy in Commonwealth England.” In The Canadian Journal of History 25, no. 1 (1990): 41-60.

Israel, Simon. “Boris John plea to Trump to waive diplomatic immunity after teenager’s death. Channel 4. 7.10.2019. https://www.channel4.com.

Manji, Fatima. “Mother of crash victim urges American diplomat’s wife to return to UK.” Channel 4, 6.10.2019.  http://channel4.com.

McClanahan, Grant V. Diplomatic immunity. Principles, Practices, Problems. London: Hurst & Company,  1989.

Paulucci, Lorenzo to Giovanni Sagredo, 5.12.1653. In Calendar of State Papers, Venetian.

Paulucci, Lorenzo to Giovanni Sagredo, 25.7.1654. In Calendar of State Papers, Venetian.