Diplomatic Immunity
John Perry
After Harry Dunn was killed by a car that emerged from a US base in Northamptonshire on 27 August 2019, the driver, Anne Sacoolas, claimed diplomatic immunity and within three weeks was whisked out of the country on a US military aircraft, with the British police only being informed after she’d left. Sacoolas eventually appeared by video at the Old Bailey last month, but is unlikely to serve the suspended sentence she received. The US government refused an extradition request to return her to the UK to face trial, even though her diplomatic immunity arose from a legal ‘anomaly’ that has now been closed.
The State Department said that extraditing Sacoolas ‘would render the invocation of diplomatic immunity a practical nullity and would set an extraordinarily troubling precedent’. Yet last month the US denied immunity to the Venezuelan diplomat Alex Saab, charged with conspiring to launder $350 million via a bank in Florida. In another contrast with the Sacoolas case, Saab was only in the US, where the alleged crime was committed, because he had been extradited by force.
Saab was arrested in Cape Verde on 12 June 2020, during a refuelling stop on a flight from Venezuela to Iran. Both countries are subject to US sanctions, and Saab’s mission, his third to Iran, was to arrange the supply of food and medical supplies, paid for in gold. His plane was obliged to land in Cape Verde having been denied refuelling in Morocco and Senegal, possibly at Washington’s request. Police forcibly removed him from the plane, knocking out two of his teeth; an arrest warrant was issued the following day. He was extradited in October 2021, even though Cape Verde has no extradition treaty with the US, and ignored rulings by the West African regional court and the United Nations Human Rights Committee that Saab should be released.
In Florida, awaiting trial, Saab pushed his argument that he held diplomatic immunity and was carrying letters in diplomatic pouches from Venezuela’s president, Nicolás Maduro, to his Iranian counterpart. According to the National Lawyers Guild International Committee, Saab’s diplomatic status was clear. On 23 December 2022, however, a judge in Miami ruled that he didn’t have diplomatic immunity because the US has not recognised ‘the Maduro regime’ as the official government of Venezuela since January 2019, and ‘only the president may determine which governments are legitimate in the eyes of the United States and which are not.’
Dan Kovalik, an international lawyer who has advised on the case and was present at December’s hearing in Miami, told me that Saab’s diplomatic status derives from 2018, when Maduro’s presidency was still recognised by Washington. Saab’s diplomatic passport was issued by the same Foreign Ministry that issued the one held by Juan Guaidó, the man claimed by Washington to be the country’s real president, even though he has never won an election. (At the end of December, the Venezuelan opposition groups that had previously supported Guaidó announced the dissolution of his ‘interim government’.)
Diplomatic immunity has a very long history but in its modern form was codified by the 1961 Vienna Convention on Diplomatic Relations. Unlike the International Criminal Court and countless other international treaties, the US formally adheres to the 1961 Vienna Convention, but the Sacoolas and Saab cases show Washington will make up its own mind how the convention applies, regardless of the consequences for its relations with other governments. As Mike Pompeo puts it in his new book, Never Give an Inch: ‘No other nation has the global reach to interrupt an Iranian-Venezuelan plot in real time and convince a small island nation to hold a wanted man.’
Comments
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27 January 2023
at
12:44pm
David Lobina
says:
Hardly comparable cases, surely - one was a car accident, the other an actual criminal undertaking.
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27 January 2023
at
3:06pm
Thomas Jones (blog editor)
says:
@
David Lobina
Causing death by careless driving is a criminal offence.
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27 January 2023
at
8:37pm
John Perry
says:
@
David Lobina
The point was to contrast US treatment of 'diplomatic immunity' in the two cases: applied generously when it suited Washington, disregarded when it didn't.
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29 January 2023
at
3:28pm
David Lobina
says:
@
Thomas Jones (blog editor)
Yes, yes, but it is still a car accident, and my point was, obviously, that the latter was a criminal undertaking (i.e., it was meant) in a way that a car accident isn't.
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29 January 2023
at
3:34pm
David Lobina
says:
@
John Perry
I know what the point was, but there is a question regarding what terms to use to draw the relevant comparison. What you describe has happened multiple times in history, as I'm sure you are aware, but a better comparison could easily have been found. The Sacoolas case is significant here in the UK because of how charged it became in the media, but other than that it has little to say about diplomatic immunity per se in reality - Sacoolas didn't actually leave the country because of diplomatic immunity, as she hadn't yet been charged at the time and, therefore, she was perfectly free to leave, and in the event she was charged AND tried.
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30 January 2023
at
5:14pm
John Perry
says:
@
David Lobina
Well it was a topical coincidence of court decisions in the UK and US, both involving the US government's stance on diplomatic immunity, with contrasting interpretations and outcomes. After all, the US bent over backwards to protect Sacoolas from imprisonment, while Saab has spent many months in prison, much of that time in harsh conditions. If you have a better comparison that assists the Saab case, do please let me know it.
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31 January 2023
at
1:24am
Michael Hofmann
says:
@
David Lobina
They're both islands, isn't that it?
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31 January 2023
at
11:08am
David Lobina
says:
@
John Perry
Well, for a start the right counterpart to the Saab case would have included an element of international politics or similar. All you can say about the Sacoolas case is that it is just another example of the US simply refusing to waive immunity for its employees, but this is unremarkable, it has happened many times before and seems to be a default position for them (the Wikipedia entry on Diplomatic Immunity offers many cases of abuses of this status by the US, many in fact involving deadly car accidents, and in all cases the US has refused to waive immunity). And of course it is worth adding that it is not a given that Sacoolas would have gone to prison had she stayed here, the offence she was convicted for doesn't always result in a custodial sentence (and the US hardly bent over backward, really; she was told to leave and since then the US has refused to extradite her, but that's it). Will think of a better counterpart, but there really is very little to learn from from this comparison at present.
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1 February 2023
at
7:46pm
John Perry
says:
@
David Lobina
Thanks for an interesting response, but as Harriet says below, the real point is that the US will use its power and violence to get what it wants, regardless of whether this shows it to be behaving hypocritically. Pompeo illustrated this neatly, and apparently with pride rather than shame, in the short quote I used from his new book.
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2 February 2023
at
10:48am
David Lobina
says:
@
John Perry
Exactly, but what is the point of the comparison with the Sacoolas case, which really is immaterial to anything here?
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27 January 2023
at
9:02pm
Roger Harris
says:
Some people are behind bars because of wrong doing. Others are incarcerated because that did the right thing. Mr. Saab, far from being criminal, falls into the latter category. He helped to bring humanitarian supplies to the people of Venezuela in legal international trade but in circumvention of the US blockade of Venezuela, which is illegal under international law. That is not a crime.
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27 January 2023
at
11:05pm
Rick Sterling
says:
This is a good example of US disdain for international law. The woman involved is not a diplomat; she is the wife of a diplomat. In contrast, Alex Saab is a diplomat appointed many years ago. USA was a co-founder of the Vienna Convention that they now ignore. The more one learns about this case, the more outrageous it is.
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28 January 2023
at
9:56am
steve kay
says:
@
Rick Sterling
If the man is a “diplomat” why is he stationed at the very large American military base at RAF Croughton? By the exit from the base there are now road signs reminding drivers to keep to the left.
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29 January 2023
at
12:42pm
Delaide
says:
@
Rick Sterling
International law notwithstanding, the US disdain for morality in this case is stomach churning.
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30 January 2023
at
9:43pm
XopherO
says:
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Delaide
What a surprise.
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1 February 2023
at
7:35am
Harriet
says:
For reason of state. The United States behaves as any power would do if given the opportunity; it often uses power and violence to achieve ends. If it suits the United States to overthrow foreign governments or capture citizens on foreign soil it deems as a enemy, it will do so. And, it will be cloaked in legal mumbo jumbo. Nothing new here.
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1 February 2023
at
3:29pm
David Lobina
says:
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Harriet
Exactly.
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1 February 2023
at
7:40pm
sutton
says:
The American Imperium can do what it likes.
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2 February 2023
at
1:27am
Todd Archer
says:
Hmm. Somebody said something about interpretations of the world not being the point but change instead . . . .
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2 February 2023
at
1:55pm
Patrick Cotter
says:
'knocked out his two front teeth'. The American police who murder peaceable civilians inside the United States are not an anomaly. The United States as a polity has brutality woven into its DNA.
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3 February 2023
at
11:49am
James Kane
says:
It's not at all clear Saab did have diplomatic immunity. Immunity doesn't derive from possession of a diplomatic passport but from membership of a diplomatic mission. Saab definitely wasn't assigned to the Venezuelan mission in Cape Verde (there isn't one) and it doesn't seem he was assigned to the Venezuelan embassy in Iran either. If he were it would have been a simple matter for his lawyers to get a copy of the Iranian diplomatic list and point to his name on it. So even if he had a diplomatic passport - which he may not have done at the relevant time - he probably didn't have grounds in a position to assert immunity against the Cape Verde authorities and his detention was probably licit. Anne Sacoulas, on the other hand, was a member of the US mission to the UK so did have immunity (albeit that this seems to have been an administrative error).
Read moreNot only that, but they cited the 'troubling precedent' that would be created had immunity been disregarded in the first case, but were untroubled by the precedent they set in their treatment of Saab. The latter puts at risk any diplomat from any government which the US (or any other administration) chooses not to recognise, and makes a nonsense of the Vienna Convention.