Beyond any doubt, it would have been Dominic Raab’s personal decision to grant a fake diplomatic immunity to Anne Sacoolas and permit her to leave the country. I have watched with sheer horror the Tory crocodile tears, the ministerial meetings with Harry Dunn’s brave but distraught family, and the PR pretence that the UK is seeking Anne Sacoolas’ return, now that she is safely back at CIA HQ. It is perhaps the most nauseating display of individual hypocrisy I have ever seen in politics. The callous abuse of Harry Dunn’s suffering family and the sheer cynicism of the patent charade that the government is supporting them, leave me deeply depressed – and very angry.
It may surprise you, but I have known and worked with some Tories who were at heart honorable men. The centre of this government is estranged from the very concept of personal honour.
The Permanent Secretary of the FCO, Simon McDonald, in appearing virtually before the House of Commons Foreign Affairs Committee this week, stated in evidence that the initial advice from FCO Legal Advisers was that Anne Sacoolas did not have diplomatic immunity, but that this legal advice changed after discussion with the US State Department. Crucially McDonald stated that the legal advice had gone to three FCO ministers including Raab, but he does not seem to have stated who made the actual decision to let Sacoolas go – largely because nobody on the Committee seems to have asked him the right question. With a CIA officer killing a young British lad, it is from my personal FCO experience inconceivable this was not Raab’s call.
I have explained, from long before there was any acknowledgement of the fact in the mainstream media, that Anne Sacoolas did not qualify for diplomatic immunity under the Vienna Convention. That specifically reserves immunity for families to diplomatic agents carrying diplomatic rank, which Sacoolas’ husband never had.
Please read my detailed explanation here, or the rest of this article will be hard going.
The British government claims that there is a secret bilateral treaty governing the status of American spies at RAF Croughton, under which Anne Sacoolas does have immunity.
Now I want you to follow this very closely. I apologise that, if you are unfamiliar with the concepts, it is difficult to get your head around.
You will recall that in the Julian Assange case, the British government is claiming that Article 4 of the UK/US Extradition Treaty of 2007, which bans “political” extradition, has no force in law. The British government argues that this is because an international treaty the UK has entered into only has legal force in the UK if it is specifically incorporated into law by UK legislation; and the 2007 UK/US Extradition Treaty never was so incorporated. The UK government argues that the 2007 Treaty depends on the 2003 Extradition Act, but as the 2003 Act is (they claim) incompatible with Article 4 of the 2007 Treaty, then Article 4 must fall. Political extradition would therefore become possible.
The UK government position in the Assange case is that the UK government’s treaty commitments are legally void unless specifically passed into UK legislation.
Well – very definitely no “secret treaty” over RAF Croughton has ever been incorporated into UK law. The only legal basis on which Dominic Raab could give Anne Sacoolas immunity is the Diplomatic Privileges Act of 1964, which incorporates the Vienna Convention on Diplomatic Relations into UK law. And Ms Sacoolas’ so-called immunity is incompatible with the Vienna Convention as her husband is not a diplomatic agent carrying diplomatic rank. He could only be technical and administrative staff of the US Embassy (itself a dubious claim). The families of Technical and Administrative staff do not have any immunity under the Vienna Convention. Therefore Dominic Raab had no legal power to grant Anne Sacoolas immunity. There is no UK law that confers that power upon him, whatever any secret treaty might say.
In short, the British government is arguing the opposite in the Sacoolas case to its argument in the Assange case. It claims a secret bilateral treaty with the US could alone give Dominic Raab the legal power to grant Ms Sacoolas immunity. While in the Assange case it argues that a bilateral treaty with the USA carries no legal force.
I should straighten one wrinkle. I understand that the current fig leaf which UK government lawyers are attempting to shrink behind is the provision in the 1964 Diplomatic Privileges Act authorising bilateral arrangements which confer immunities over and above those conferred by the Vienna Convention. There is indeed such a provision, at article 7 of the Act.
But note this: it only provides for special bilateral arrangements already in place “at the commencement of the Act”, ie before 1964. Furthermore those bilateral arrangements must, as specified in the legislation, be listed in the London Gazette. I searched the Gazette, which was as little fun as it sounds. Journalism is tough work if you do it properly, which is presumably why the media no longer even pretend to do it. Eventually I tracked down the list of bilateral arrangements under the Diplomatic Privileges Act on page 8,292 of Issue 4,351 of the London Gazette.
Special bilateral arrangements with the USA were indeed gazetted (and now you know where that term comes from).
But note that this special arrangement for US technical and administrative staff only applies to clause 7 (b) of the Act, not 7(A). That is it only confers exemption from taxation. In effect, the only right Mr Sacoolas was granted was the right to buy duty free booze – a right which may well have its part to play in the death of Harry Dunn. There was no diplomatic immunity for Sacoolas, let alone his family, irrespective of what the FCO might claim.
There is no secret treaty over RAF Croughton, or arrangement for diplomatic immunity there, ever posted in the London Gazette under the 1964 Act or ever embodied in any other primary or secondary UK legislation. The initial FCO legal advice, that Anne Sacoolas had no immunity, was very plainly correct.
The evidence given by Simon McDonald was that a secret treaty purported to give full immunity to spies like Sacoolas, but that this treaty had been recently amended to remove their immunity. However, McDonald continued, in removing the immunity for spies it had not stated that it also removed immunity for their families, so that remained. He called this “apparently illogical” and “a recondite piece of law”.
It is in fact utter nonsense. The only families who have Vienna Convention immunity are the families of diplomatic agents having diplomatic rank. They only have diplomatic immunity through the diplomatic agent. A family cannot have diplomatic immunity while the (alleged) Embassy staff member on whom that immunity depends does not. It is not just illogical, it is impossible in terms of the Vienna Convention, and diplomatic immunity can only be conferred through the incorporation of the Vienna Convention into UK law in the 1964 Diplomatic Privileges Act. All of which Simon McDonald knows very well.
My own interpretation is that McDonald was obviously calling into ridicule a case for which he has great personal distaste, by making bare its absurdity whilst appearing to defend it as a loyal civil servant. Which is as absurd as the rest of this disgusting quagmire of immorality.
I am very grateful to those of you who responded to my call to put in Freedom of Information requests on the UK government position re the applicability of Article 4 of the 2007 UK/US Extradition Treaty. The first results are starting to come through. As suspected the government are being as obstructive and unhelpful as possible.
The FCO has stated that it does hold material on the internal assessment of the official UK government view from 2003 to 2007 of the compatibility of Article 4 of the UK/US Extradition Treaty of 2007 with the Extradition Act of 2003. However it is refusing to retrieve and release the material on grounds of excessive cost, claiming it would take more than the mandated 3.5 man days to process the request.
As all the material in question from those dates will be electronically stored, I know they are lying about excessive time and cost. We are looking to break down the request into several smaller chunks to parcel out. It is however very instructive already that the FCO is admitting it does hold the information. This confirms what I explained, that internal FCO systems, to my certain and direct knowledge, make it impossible that the 2007 US/UK Extradition Treaty could have been ratified by the UK without a preceding very thorough Whitehall assessment of the enforceability of all of its provisions in UK law.
Unfortunately I now have my own quite severe legal difficulties to which I need to attend. I was very keen to get this material to help the Harry Dunn campaign finished and published, which is why I am completing this article at 5.30am after writing it all night. I regret that the haste required has made my explanation of a technically complex subject not as straightforward nor as elegant as I would usually try to achieve. It also means that you need to follow the links and read some of the past material I had written, rather than my setting it out all afresh in a self-sufficient article as I would have wished. I do apologise for this, but will explain the difficult circumstances shortly.
With grateful thanks to those who donated or subscribed to make this reporting possible.
This article is entirely free to reproduce and publish, including in translation, and I very much hope people will do so actively. Truth shall set us free.
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