Headlines regarding a US Diplomat's wife striking (Killing) a motor cycle rider in the UK have sparked discussion regarding immunity. What is the governing law in this case? Are there any bright lines that provide insight and clarification regarding diplomatic immunity?
The governing law would be the Vienna Convention on Diplomatic Relations (1961).
The relevant part is Article 29. Diplomats must not be liable to any form of arrest or detention. Diplomats are also immune from civil and criminal prosecution. Technically, it wasn't a US diplomat but a family member, but by Article 37 they have the same protection.
The linked article suggests that her diplomatic immunity ended, but that's a bit of a non-issue. The host nation (the UK in this case) can declare anyone, diplomats or family to be persona non grata which indeed ends diplomatic immunity, but only after the person is allowed to leave the host nation. And when the act happened, the immunity was in place. Immunity cannot retroactively be withdrawn by the host nation.
The claim in the article Jonathan Sacoolas Is Not, and Has Never Been, a Diplomat - Craig Murray is probably correct (from 2019-10-08):
There is no Jonathan Sacoolas on the official Diplomatic list. Neither Sacoolas nor his wife has any right to claim diplomatic immunity under the Vienna Convention.
Sacoolas works as an NSA technical officer at the communications interceptions post at “RAF Croughton”.
Based on a NSA statement published by the Washington Examiner, 2019-10-11 Jonathan Sacoolas doesn't work for the NSA.
In such cases, such peaple have a Official passport not a Diplomatic passport.
A Diplomatic passport alone does not grant Diplomatic immunity.
The 2017 Dutch–Turkish diplomatic incident where the Turkish Minister of Foreign Affairs was not allowed to enter the Netherlands and the Turkish Minister of Family and Social Policies was deported from the country. Both, as Ministers, had a right to use a Diplomatic passport. But neither had permission to enter the country.
A stand-off ensued for several hours in which the Turkish minister refused to leave the car. Just after midnight, a special heavy tow truck, a lift flatbed, was driven into the yard and prepared to vertically hoist the 3.5 tonne car onto the flatbed, with the minister still in it, to transport her back to Germany.The minister now left the car and demanded entrance to the consulate invoking the Vienna Convention on Diplomatic Relations. The Dutch police had orders to arrest the minister if necessary. Ultimately, she gave in to the police demands to leave the country. At the time, many news sources assumed that she had been declared persona non grata. She was, loudly protesting, taken to another car, a black armoured Mercedes, by masked Dutch police officers who accompanied her to a police station at Nijmegen near the Dutch–German border. Her passport was seized. She was not allowed to leave the station for one and a half hours, while being reunited with the ten bodyguards. She returned to Germany under German escort.
Both Ministers were not on a diplomatic mission agreed to by the Netherlands
- which is one precondition for diplomatic immunity
In the case of Jonathan Sacoolas (probably a holder of a Official passport), who was not a diplomatic agent (not listed in the Diplomatic list)
- diplomatic agent being another precondition for diplomatic immunity
his wife, therfore, also had no diplomatic immunity accourding to the Vienna Convention on Diplomatic Relations.
What does apparently exist between the UK and US is a secret, bilateral agreement to treat GCHQ and NSA staff as if they had diplomatic immunity. That is not at all the same thing as Vienna Convention protection under international law.
(also called service passport) – Issued to government employees for work-related travel, and their accompanying dependants.
Issued to diplomats of a country and their accompanying dependents for official international travel and residence. Accredited diplomats of certain grades may be granted diplomatic immunity by a host country, but this is not automatically conferred by holding a diplomatic passport. Any diplomatic privileges apply in the country to which the diplomat is accredited; elsewhere diplomatic passport holders must adhere to the same regulations and travel procedures as are required of other nationals of their country. Holding a diplomatic passport in itself does not accord any specific privileges. At some airports, there are separate passport checkpoints for diplomatic passport holders.
(e) A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;
- A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
- contains similar regulations for members of Consulates