By Bola A. Akinterinwa
The fatal accident in which the 19-year old Harry Dunn was killed in an unfortunate collision with the spouse of a US diplomat in Northamptonshire, in Britain, raises three critical issues for further examination of global governance in the quest for international peace and security, on the one hand, and protection of fundamental human rights, fairness and justice, on the other.
The first is the extent to which the rule of diplomatic immunity should continue to be holistic in its scope of application or should be allowed without limitation. As it is now, diplomatic immunity has an all-encompassing character. The second is the challenge of possible scenarios in which a diplomat kills someone in his or her receiving State and he or she is entitled to diplomatic immunity, and in another scenario, a citizen in the same receiving State decides to avenge such a killing by seriously violating the diplomat-killer. What will happen to the violator, especially if the general public also gives such a violator support through public protests?
The third is how to justify and provide explanations as to why diplomatic immunity should be consciously covering up and, by so doing, also encouraging crimes by diplomatic agents. The more developed Member States of the international community are preaching, on the one hand, the gospel of peace, fairness, justice and the need to protect fundamental human rights, but, on the other hand, are keeping silent over apparent criminal acts of injustice under the pretext of principles of diplomatic immunity and inviolability.
Without doubt, diplomatic immunity is an instrument for protecting national interests and balancing of power in international relations. It is both a dynamic of entente and mésentente, self-protection and fast-tracking court prosecutions and sanctions. As provided in paragraph 3 of the Preamble of the Vienna Convention on Diplomatic Relations of 1961, the signatories to the Convention believed that ‘an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems.’
In practice, can it be rightly argued that, in the very case of the killing of Harry Dunn in the United Kingdom, the bilateral ties between the United Kingdom and the United States will not be tainted, especially in terms of the international animosity likely to be generated? How will the United States be perceived when its diplomat, by marriage, drove in violation of the traffic rule, and by so doing, took the life of Harry Dunn? The story of the incident speaks volumes.
The Harry Dunn Crash Saga
Harry Dunn, 19 years old, was the son of Charlotte Charles and Tim Dunn, killed on August 27, 2019 when his Kawasaki motorcycle, which he was riding, collided with the Volvo car of Mrs. Anne Sacoosa, who was driving on a wrong lane consciously or unconsciously. The collision was fatal as Harry Dunn died in the hospital thereafter. The accident occurred on the B4031 road near the Royal Air Force (RAF) Croughton, Northamptonshire, which serves as the United States Air Force Communications Station. This means that the station is an exterritorial space that is protected by the 1961 Vienna Convention on Diplomatic Relations. It is considered a diplomatic premise.
Following the fatal accident, police investigation quickly began. The 42-year old Anne Sacoosa made it clear that she did not have the intention to return to the United States and that she was prepared to collaborate with the police. Contrary to her promise, she was probably discreetly returned to the United States in an American aircraft. It is her departure from the United Kingdom, meaning that she can no longer face the wrath of the law, that has prompted the controversy over waiver of diplomatic immunity.
In the eyes of the mother of Harry Dunn, Charlotte Charles, leaving the United Kingdom was a very ‘dishonourable thing to do.’ As she further put it, ‘we are not cut to get her put behind bars, if that’s what the justice system ends up doing, then we can’t stop that, but we’re not out to do that, we’re out to try and get some peace for ourselves.
On October 7, 2019 Nick Adderley of the Northamptonshire Police Station requested the Embassy of the United States to waive the diplomatic immunity of Mrs. Anne Sacoosa, ‘in order to allow the justice process to take place.’ On Thursday, October 10, President Donald Trump made it clear that Anne Sacoosa ‘will not return to the United Kingdom.’ On Saturday, October 12, the US Department of State reaffirmed the no-return policy of the United States by declaring that ‘any questions regarding a waiver of immunity with regard to our diplomats and their family members overseas in a case like this receive intense attention at senior levels and are considered carefully, given the global impact such decisions carry; immunity is rarely waived.’
This US policy stand compelled the parents of Harry Dunn to plead with the US president to pave the way for justice, but the US government responded on October 14 that Anne Sacoosa’s return to the United Kingdom was ‘non-negotiable.’ This factor of non-negotiability of the accused Sacoosa led to the shifting of the quest for justice to the American soil, to the White House, on October 15, when the parents of Harry Dunn met with Donald Trump, on the request of the British Prime Minister. President Donald Trump took advantage of the opportunity of the visit for his electoral campaigns.
He brought Mrs. Sacoosa to the White House to sit at the anti-chamber of the venue of the meeting, with the intention of a possible tête-à-tête between the two but the parents of Harry Dunn refused to come into contact with Anne Sacoosa, who, apparently, really wanted to show further remorse to the aggrieved parents. The policy and attitudinal disposition of Donald Trump made that impossible.
The aggrieved parents are currently appealing to the conscience of all the good people of America to compel President Donald Trump ‘to do the right thing.’ Can the right thing ever be done in light of Donald Trump’s ‘America First’ policy? Since the accused is the spouse of an intelligence officer, is she not, by force of necessity, also an intelligence agent for the United States? Perhaps more interestingly, does the principle of diplomatic immunity apply to Mrs. Anne Sacoosa? We strongly submit here that the answer is both yes and no as the diplomatic regulation, no matter how it is interpreted, is crystal clear on this.
In other words, the parties to the 1961 Diplomatic Convention believe that providing privileges and immunities has the great potential to enhance warm relations. This is why the grant of privileges and immunities is not meant for individual purposes, but, stricto sensu, for official considerations. Paragraph 4 of the Preamble of the Convention has it that ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States. In determining whether the principle of diplomatic immunity applies to Mrs Anne Sacoosa, an overview of the relevant provisions of the Convention is necessary at this juncture.
Diplomatic Immunity and its Purpose
Without jot of doubt, every diplomatic mission has what is called a ‘Mission Charter.’ It is synonymous with the mandate or set target that a diplomatic missions is required to pursue and achieve. This Mission Charter should not be confused with the general functions of an embassy: representational duties, protection and negotiation functions, monitoring developments in the receiving state and promotion of better understanding between the sending and receiving States.
The grant of privileges and immunities is meant to facilitate the achievement of Mission Charter, in particular, and the general functions of diplomatic missions, in general. Diplomatic Charters have an aspirational character, while the general functions deal more or less with the status quo. Consequently, privileges and immunities are not meant to encourage any form of engagement in illegal activities or crime against the receiving states of diplomatic agents.
What is particularly noteworthy about the question of immunity is the recognition of the sovereignty of every nation-state entering into international relations. It is agreed that no sovereign state shall be superior to another, hence the rule of sovereign equality. It is in light of this that diplomatic agents are exempted from the various prosecuting processes of their host or receiving States. It is also for the same considerations that the principle of inviolability of the person and premises of a diplomat is provided for.
As contained in Article 22 of the 1961 Vienna Convention, ‘the premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the Head of the Mission.’ More important, paragraph 2 of the article stipulates that ‘the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.’ And most importantly, ‘the premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’
Additionally, Article 30 has it that ‘the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. His papers, correspondence and except as provided in paragraph 3 of Article 31, his property, shall likewise enjoy inviolability.’ In this regard, Article 31 says that ‘ 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 a) ‘a real action relating to private immovable property situated in the territory of the receiving State…; b) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State.’ These provisions govern the responsibilities of any receiving state in terms of the obligatory protection of the diplomatic agent.
At the level of the sending State, there is nothing like grant of immunity but a possible waiver of immunity. The issue of waiver is necessarily raised when an accredited diplomatic agent is accused of having engaged in activities perceived to be incompatible with the status of a diplomatic agent, or in the event a diplomatic agent of a sending State committing other offences in his or her receiving State, and the sending State has to decide whether or not to waive the immunity provided for all accredited diplomatic agents by the 1961 Convention on Diplomatic Relations, to enable the receiving State to prosecute him or her.
What should be noted from the foregoing is the legal context of application of the principle. First, waiver of diplomatic immunity is simply about removal of legal protection of a diplomatic agent by a sending State. Second, the principle does not apply to any diplomatic agent who has the nationality of the receiving State. No sending State, on the basis of the rule equality can control another. The exercise of sovereign power is over the nationals of the sending State only. Third, The diplomatic agent must have been duly accredited and his or her name duly registered on the diplomatic list or record of the receiving State, especially in terms of support staff. Fourth, immunity does not apply to any engagement that has a non-official character. A diplomatic agent must have acted offensively or otherwise in official capacity to qualify for the privilege of diplomatic immunity. Thus, diplomatic agents are required to always respect the laws of their host countries even though they are still specially protected people by virtue of being agents of sovereign states.
In this regard, when diplomatic agents commit offences, the challenge is to determine whether the offences are committed on behalf of the sending State or on private person’s behalf. The challenge also includes whether the offence is in line with the objectives of the mission charter of the United States. More significantly, in determining this, can any other country determine on behalf of the United States when its objective is attained or not? Let us espy the other side of the coin.
Non-tenability of Immunity
The Washingtonian authorities have the exclusive right to waive or not to waive the immunity of any of the US Foreign Service Officers. In the context of the killing of Harry Dunn by Anne Sacoosa, the US government has refused to waive her immunity. We argue here that the refusal to waive her immunity is wrong, not consistent with the US tradition, and therefore, not tenable on the basis of objectivity of purpose.
First, did Mrs. Sacoosa kill her victim deliberately or not? Did she kill her victim in her official capacity and on behalf of the Government of the United States? Only Mrs. Sacoosa can provide the correct answer to the two questions, as the US government only has the responsibility of either corroborating or denying them.
Again, how do we explain the decision of Mrs. Sacoosa to drive against the spirit of traffic regulations? She has been living with her husband in the Royal Air Force station for a long time. Can she claim not to know the area very well or not to know she was driving against traffic? Were there no road signs? Has Mrs. Sacoosa a valid driving license and valid for the United Kingdom? It is very possible for Mrs. Sacoosa to have easily forgotten, on leaving the Royal Air Force base, which is American territory, that she was no longer o American soil, but on British roads where driving gives priority to the left and not to the right as it is in the United States.
Whatever is the case, the carelessness of Mrs. Sacoosa, her conscious driving against traffic, and by so doing, killing an innocent person, points clearly to wrongness of action on her part. From available reports, Mrs. Sacoosa has not contested her apparent mistake and fault. What is ideal, therefore, is not for the US government to give any impression that it is not accepting to waive her immunity because she is considered not to have committed any crime.
The ideal thing is to beg, plead with Harry Dunn’s parents, at the level of government-to-government and people-to-people, to take the collision as an act of God. For Donald Trump to be talking about ‘non-negotiability’ of his decision not to waive Mrs. Sacoosa’s immunity is reckless arrogance that has the potential to endanger the lives of Americans in other climes. It is a reflection of myopia and also a strategic and diplomatic miscalculation to believe that the matter can be quickly thrown into the garbage of history with the refusal to waive immunity. The mere fact that the CCTV of the collision has shown Mrs. Sacoosa’s Volvo travelling on the wrong side of the road,
In this regard, for instance, will the British people take side with parents of Harry Dunn or with the Sacoosas? The enmity may not be for today. It may be for tomorrow when the story will be told and when new matters arise, and not only recall history but also attract hostility vis-a-vis Mrs. Sacoosa, and by extension hostility against the good people of America. The damage is done today but should not be allowed to damage the future. Not waiving immunity is necessarily condoning and abetting crimes. Impression must never be given that that the United States is a promoter of crimes in the conduct and management of global affairs. This is why the US government policy stand cannot be tenable.
Second, the US government has argued that waiver of diplomatic immunity is rarely given, but has asked for it when injustice and national interest is at stake. For instance, during the Second World War, precisely in 1940, Mr. Tyler Kent, a Clerk at the Embassy of the United States, shared communications between Winston Churchill and the United States President Franklin Delano Roosevelt with Nazi Germany. In this regard, the United Kingdom requested the United States to waive his immunity. The request was granted. National interest was at stake in this case and Kent was eventually given a five-year imprisonment.
Third, the United States is on record to have requested for diplomatic immunity waivers for even foreign officials working in America. There was the case of Mr. Gueorgui Makharadze, a Georgian diplomat, who killed a teenage girl in Washington DC in 1997. Mr. Makharadze was simultaneously drinking and driving. This case is not much different from the case of Mrs. Sacoosa. the main point of difference is the causal factor: taking wrong lane when driving for Mrs. Sacoosa and drinking and driving for Mr. Makharadze who served three years in prison for the offence.
From the foregoing, what is clear about the non-waiver of immunity in the case of Mrs. Sacoosa seems to be the need to defend US interest first, that is, upholding the policy of ‘America First.’ But, if this is the case, what really is the American interest in killing Harry Dunn? Was he an impediment to intelligence gathering? Why should Mrs. Sacoosa drive on a wrong lane? ‘America First’ policy can imply in this case, no trial of Mrs. Saccosa in the United Kingdom. Now that she is in the United States and the principle of immunity does not apply anymore, will Mrs. Sacoosa be prosecuted in the United States? Global eyes are on the watch.
Meanwhile, Nigerians who take the habit of following diplomatic vehicles driving at times speedily and recklessly on their way to the airport, should learn a lesson from the case of Harry Dunn and Mrs. Saccosa. There is nothing like moralism in international politics. A government can easily sacrifice the life of a most loyal patriot, under any, but difficult, circumstance. What has happened to Harry is evidently a reflection of both Donald Trump’s and Boris Johnson’s ‘magouilles,’ on the one hand, and Donald Trump’s ‘America First’ policy.’ But, all in all, it is politics of ‘magouilles’, a French word for political intrigues, ‘419’ or ‘jibiti’ according to the Yorubas in Nigeria.