To do so would undermine the international legal order, no matter how unfair the case is.
This article was originally published by The Times on Thursday 4 June 2020.
Harry Dunn’s family have been sold false hope. Anne Sacoolas will never be extradited.
An Interpol red notice requesting the extradition of the American spy for allegedly killing the teenager with her car is a red herring. His mother, Charlotte Charles, recently implored in The Washington Post for Ms Sacoolas to come back to Britain and “face up to what she has done and receive justice according to law”.
If the American were suddenly overcome with a sense of justice she might do this of her own volition, but the red notice will not force her.
The Dunn family have done everything possible to keep the story in the public eye and they have clearly won over public opinion. However, the legal arguments behind them will crumble.
Ms Sacoolas’s defence of diplomatic immunity hinges on her husband’s role as a US civil servant stationed at RAF Croughton in Northamptonshire. As a result of an old agreement between Britain and the US, all personnel on the base have diplomatic immunity and so do their families.
That is standard procedure and is also enshrined in the Vienna Convention, for good reason. Leverage over diplomats can easily be obtained through pressure on their families. Diplomatic immunity protects diplomats from this kind of political interference.
The confusion at the highest levels of the government surrounding the issue of diplomatic immunity is concerning and it is presumably why the Dunn family are also attempting to bring a private prosecution against Dominic Raab, the foreign secretary, for misconduct in a public office, a legal challenge that is unlikely to succeed.
Although Ms Sacoolas no longer has diplomatic immunity as she is back on American soil, the question in a court would be whether she had the immunity at the time of the accident. US officials say that she did. Diplomatic immunity is something that can only be lifted by agreement or through a judge. The US has made it clear it will not agree.
There have been many calls for the US to make an exception. Yet the reality is that they will not and, for all the unfairness of the situation, in order to uphold international law they should not bow to that pressure.
To do so undermines the international legal order and makes it far easier for other countries to ask for the same special treatment. There are situations where immunity is waived — for murder, robbery and other pre-meditated serious crimes — but it won’t be waived in this case.
As awful as it is, this is not an abuse of the diplomatic process. This case is a sad byproduct of a fundamental tenet of international law and diplomacy, which means that the only way Ms Sacoolas will face justice will be if she voluntarily returns. And that is extremely unlikely.
Ben Keith is a barrister at 5SAH, specialising in Extradition and International Crime. As well as dealing with Immigration, Serious Fraud, and Public law. He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Criminal and Civil Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations.
