It is every family's worst nightmare: a traffic accident that takes the life of a loved one, often through no fault of their own. Such incidents are usually an agonizing, private tragedy for those involved. The allegations in the case of 19-year-old Harry Dunn, however, are a matter of transatlantic diplomacy and threaten to become an embarrassment to the British prime minister Boris Johnson.
They are also a reminder that diplomatic immunity is often used as a shield in ways that were never intended. Johnson, who once criticized the absurdity of the protections offered, can't let his voice be muffled this time by his need to keep the Americans onside after Brexit.
On Aug. 27, Dunn's motorcycle collided head-on with a Volvo outside a U.S. intelligence base about 70 miles northwest of London; he suffered multiple injuries and was later pronounced dead. Dunn's devastated family say they were told by police that they believe the Volvo driver was traveling on the wrong side of the road.
The driver of the vehicle, named as 42-year-old Anne Sacoolas, is the wife of a U.S. diplomat who may have only been in the country for a short period. Police reported that she was cooperative initially and had no plans to leave the country. But after Dunn's death, Sacoolas claimed immunity and returned to the U.S. with her family.
The case has sparked outrage in the U.K. Harry Dunn and his family have suffered the ultimate irreversible harm, but they seem to have no recourse at all. Under the 1961 Vienna Convention, diplomats and their families are protected from prosecution in their host country, though the principle dates back thousands of years.
It has survived so long for good reason. Not all judicial systems were independent or trustworthy. During the Cold War, there was always the danger that a honeytrap might ensnare a diplomat. But a road in Northamptonshire in 2019 is a long way from such dangers. In recent decades, immunity seems to be abused by diplomats more often than correctly invoked.
Waivers of diplomatic immunity are, in practice, rare. Some years ago the Daily Telegraph revealed that the Metropolitan Police made 19 applications for such waivers in the five years to 2007 and most were rejected. A French diplomat accused of assault was sent home. Saudi officials escaped having to account for allegations of indecent assault and drug-dealing.
Yet this isn't just a problem of serious crimes and misdemeanors. If you included parking violations and other smaller offences, diplomatic law-breaking would count for a significant waste of time and resources for the London police.
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As London mayor, Johnson regularly criticized the U.S. ambassador Robert Tuttle for failing to pay the city's daily 8 pound ($9.90) congestion charge over three years. "I think it's the Geneva Convention which prevents me from slapping an 'asbo' on every single diplomat who fails to pay, I think it's an unbelievable scandal," Johnson said at the time, referring to the Anti-Social Behavior Order penalty that was often used back then against London's young hooligans.
On Monday Johnson broke his silence on Dunn, calling on the U.S. embassy to waive immunity and saying he'd raise the issue with the White House personally. He treads a fine line. His predecessor Tony Blair never lived down accusations that he was George W. Bush's "poodle"; Johnson is struggling to appease Trump's sensitivities on Iran and Huawei, both areas where the U.K. disagrees with the president.
Brexit complicates things. Trump's promise of a U.S./U.K. trade deal has become a cornerstone of Johnson's promise that Brexit will be a success. But the Trump impeachment proceedings have been noted in Westminster. Johnson is often compared to the American president; their chumminess will look less advantageous the more trouble Trump finds himself in.
Were immunity to be lifted and Sacoolas found to have caused death by dangerous driving, she might not be sent to prison. Sentences of up to 14 years can be handed down if the offender is under the influence of drink or drugs. But the maximum custodial term for death by "careless or inconsiderate driving" is five years and that is reserved "for rare cases when the blame is exceptionally high." We're not likely to find out anway.
Could there be a better system? The renowned trial lawyer Geoffrey Robertson has argued that countries should either waive immunity or submit to an international court in criminal cases, with judges from the involved nations. "Any country that chooses to protect an embassy official against prosecution must be treated with the contempt it deserves: Its ambassador should be carpeted, any aid budget reviewed and full details of charges and evidence released to the media," Robertson wrote nearly a decade ago. It's hard to live up to such ideals when your entire post-Brexit strategy is about keeping one country happy.
ABOUT THE WRITER
Therese Raphael writes editorials on European politics and economics for Bloomberg Opinion. She was editorial page editor of the Wall Street Journal Europe.
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