1 December, 2020
Recent official revelations about the ‘special arrangements’ governing the diplomatic status of the US intelligence hub at the Croughton airbase in the English Midlands, which were provoked by the Sacoolas affair, raise important questions.
Article 12* of the Vienna Convention on Diplomatic Relations, 1961 (VCDR), reads as follows:
The sending State may not, without the prior express consent of the receiving State, establish offices forming part of the mission in localities other than those in which the mission itself is established.
The purpose of this article in the VCDR was to allow a sending state, provided the receiving state had no objection, to establish a ‘part’ of a mission at some distance from the capital city in which its seat was usually to be found. (It was expressed negatively because the drafters believed it was not a practice to be encouraged.) In discussion in the International Law Commission (ILC) in the late 1950s and then at the Vienna Conference itself in 1961, examples of ‘offices away from the seat of the mission’ that were mentioned included information and commercial offices, and offices established by naval attachés – the last two cases typically to be found in ports. The first draft of the article had in fact arisen from a complaint of The Netherlands that there was a tendency to transfer parts of diplomatic missions from The Hague to Amsterdam and Rotterdam (ILC Yearbook, 1958, vol. 1, pp. 113-124).
Contrary to Eileen Denza’s odd assertion (Diplomatic Law, 4th ed., p. 85), there is no suggestion in the commentary on what was to become Article 12 of the VCDR that ‘offices forming part of the mission’ – however remote – should not expect to have privileges and immunities identical to those enjoyed by what in this context might be called the ‘main part’ of the mission. Sometimes referred to as annexes, branches or subsidiary offices of an embassy, a member of the British delegation at the Vienna Conference – which actually proposed this language in an amendment to the ILC draft – said that they were ‘not intended to refer to anything but diplomatic offices, and should not otherwise be construed.’ A Turkish delegate added that ‘All offices should be part of, and enjoy the protection afforded to, diplomatic missions’ – and there was no demur from this by the other jurists.
It was against this legal background that agreements were made between the Foreign Office and the US Embassy in London about the status of the US intelligence relay hub at RAF Croughton in Northamptonshire. I describe these agreements below in light of the evidence supplied in two recently published sources. The first and most valuable is the judgment of the British High Court on 24 November 2020 (paras. 21-36) on the claim that Anne Sacoolas, wife of a US intelligence officer working at Croughton, did not enjoy diplomatic immunity when her car killed motorcyclist Harry Dunn in August 2019; this is instructive on the genesis of the August 1995 agreement. The second source is the description of the revised agreement of 20 July 2020 supplied by the British foreign secretary, Dominic Raab, to the House of Commons two days later.
In early July 1994, the US Embassy in London commenced a negotiation with the Foreign Office for recognition of the Croughton airbase as one of its offices pursuant to Article 12 of the VCDR and its buildings as ‘diplomatic premises’ pursuant to the 1987 Diplomatic Privileges Act (R (Dunn) -v- SOS for Foreign and Commonwealth Affairs, para. 32).** It also asked for its staff to be ‘included on the Diplomatic and Administrative and Technical [A&T] lists.’ It did this on the grounds that the military functions of the Croughton airbase were by then greatly diminished; instead, it had assumed responsibility for ‘worldwide diplomatic communications.’ The result, it said, was that Department of State officials had replaced those from Defense.
The Foreign Office was uneasy about granting full diplomatic immunity to the Croughton staff. The number of beneficiaries involved, among them especially the A&T staff, would be considerable (the precise numbers are redacted in the High Court judgment but the word ‘large’ appears three times in its text), the base was isolated, and the distance of 60 miles from the embassy in London was not small by British standards. (The new mission, which is south of the Thames, is now estimated by Google Maps to be 73.8 miles by the fastest route, the M40.) These factors together led a Foreign Office official to suggest – prophetically as it turned out – that there was ‘perhaps a greater risk of such staff becoming involved in incidents (eg. drunk driving, speeding, parking etc) … than there would be in London and this [sic] focussing public attention on the facility and its special status’ (R (Dunn) -v- SOS for Foreign and Commonwealth Affairs, para. 27). It might well be that Foreign Office anxiety was also influenced by the traditional view that A&T staff were ‘more likely to neglect their obligations or to commit offences in the receiving State, since they are less restrained by the professional traditions and discipline of a diplomatic service’ (Denza, Diplomatic Law, 4th ed., p. 328).
In the event, therefore, the Foreign Office accepted the US Embassy’s request on condition that A&T staff at Croughton would suffer some loss of immunities allowed this class of mission staff under the VCDR. Instead of having immunity from criminal jurisdiction whether in pursuit of official duties or not, and sacrificing immunity only from civil and administrative jurisdiction while engaged in private matters, they could no longer have criminal immunity outside their official duties either. This restriction, which was to be achieved by its ‘advance waiver’, was accepted by the Embassy and duly registered in the Exchange of Notes in which the negotiations culminated in 1995. (It was because this advance waiver omitted to include family members that, without enthusiasm and to the chagrin of Harry Dunn’s family and supporters, the High Court was obliged to judge that Anne Sacoolas possessed diplomatic immunity when her Volvo XC90 killed Harry Dunn when she was driving on the wrong side of the road.) The immunities of A&T staff at Croughton nevertheless remained significant, and the Exchange of Notes provided full immunities to the small number of diplomatic officers on the airbase.
The Dunn family and its supporters had stirred up widespread sympathy in their campaign for justice for Harry, and drawn precisely the kind of media attention to the ‘spy hub’ at Croughton that the Foreign Office had sought to avoid. It had also failed in its attempt to persuade the Trump administration to allow the extradition of Anne Sacoolas to the UK in order to face trial. As a result, and having concluded that it had been ‘anomalous’ that the Exchange of Notes of 1995 had omitted to provide also for advance waiver from immunity from criminal jurisdiction of family members of A&T staff at Croughton, the foreign secretary pressed for the agreement’s revision. In a new Exchange of Notes of 20 July 2020, the United States agreed to the following three major changes, as described by Dominic Raab for the benefit of the House of Commons on 22 July 2020 (text in italics is my emphasis):
‘First and foremost, the US waiver of immunity from criminal jurisdiction is now expressly extended to the family members of US staff at the Croughton annex, thus ending the anomaly in the previous arrangements and permitting the criminal prosecution of the family members of those staff, should these tragic circumstances ever arise again.
Secondly, the waiver from criminal jurisdiction now extends also to all embassy staff serving at the Croughton annex in respect of acts outside their official duties, not just administrative and technical staff.
Thirdly, the revised arrangements contain a further and new waiver in respect of inviolability. The Vienna convention on diplomatic relations not only provides for immunity from jurisdiction, but also provides for the separate privilege of inviolability, including complete protection from arrest and detention. The earlier Croughton arrangements contained no waiver of inviolability. This is addressed in the revised arrangements.’
This was quite a turnaround, and perhaps more so than has so far been recognized, not least by The New York Times. What is particularly striking about the new Exchange of Notes is the dramatic erosion not only of the immunities of A&T staff and their families but also of those of the highest class of embassy staff and their own families; namely, diplomatic officers – the Communications Attachés. (Whether the same is true of their personal inviolability is unclear from Raab’s vague third listed change.)
The Exchange of Notes of 20 July 2020 was no doubt shaped by the British foreign secretary’s desperation to get the Dunn family and media off his back by showing how much he could wring out of the Americans even if he could not get ‘justice for Harry’. It was probably eased, too, by the Trump administration’s notorious indifference to the morale of its own diplomatic machine and intelligence community. But in fashioning this agreement both governments were typically careless of wider consequences. Persons who are called diplomatic agents in agreements on embassy branch offices framed by the VCDR, specifically its Article 12, should enjoy all of the diplomatic privileges and immunities of other diplomats; otherwise the institution of diplomacy itself is weakened. To be sure, reducing their immunities by means of ‘advance waiver’ rather than by definitive legal erasure, leaves the entitlement of the diplomatic officers and families formally in place but in practice this is a distinction without a difference; it is a nicety lost on the public, as also – no doubt – on diplomats and A&T staff as well.
Will the revised Exchange of Notes of 20 July 2020 serve as a worrying benchmark for the unsympathetic treatment of diplomatic officers as well as A&T staff at other ‘offices away from the seat of the mission’? Even should it do so, because there are probably relatively few of them and because Croughton is so unusual, perhaps it will make little difference. An alternative view might be that the new agreement is a good thing because it will discourage the use by embassies of offices such as these. The drafters of Article 12, who tended to think that such offices were more difficult to protect and more likely to get away with abuses, would probably have agreed. The Venezuelan delegate at Vienna actually opposed Article 12 on the grounds that ‘It would enable States to camouflage consular or commercial activities as diplomatic missions in ports or towns away from the capital.’
Certainly, more needs to be known about these offices, of which a rough count by googling ’embassy branch office’ turns up about 25. (Some are clearly genuine, like the US embassy branch offices at Tel Aviv, Gaziantep (Turkey) and Banja Luka, although others are possibly consular posts by another name.) Until more is known, the jury is out on the many questions raised by the latest Exchange of Notes on the Croughton airbase.
*Before finally becoming Article 12, the article appeared in drafts first as Article 7 (paragraph 3), and then as Article 11.
**As far as I can see, there was no such act. Presumably the embassy meant the UK’s Diplomatic and Consular Premises Act, 1987.