Why American soldiers in Britain are above the law and may do as they please

It is commonly said in Britain that nobody is above the law. Like all such broad generalisations though, there are exceptions to the rule; the most obvious being in the case of what is known as ‘diplomatic immunity’. Since antiquity, heralds and ambassadors have enjoyed special protection and, even if belonging to an enemy nation, may not be molested or harmed. This ancient convention began on the battlefield, when emissaries sent to negotiate a truce or arrange a surrender needed assurance that they would not simply be killed out of hand by the opposing army. As time passed, it became convenient to extend this pledge of safe conduct to permanent representatives of other countries.

In 1709, Britain guaranteed the immunity of foreign diplomatic staff in the country from both civil and criminal legal action. By the twentieth century, most countries abided by similar rules and foreign embassies had come to be recognised as sovereign territory of the country whose government they acted for. It was accepted in all civilised parts of the world that ambassadors and their staff were not answerable to the local law. This was to prevent trumped-up charges being levelled against diplomatic staff as a means of applying pressure on the country which they represented. Exemption from the law of the country where the embassy is situated is absolute. It applies not only to relatively trifling matters such as parking tickets but even armed attacks by embassy staff leading to injury or death. Ambassadors and those working for them in most capacities can quite literally get away with murder. This was neatly demonstrated in Britain in 1984.

On 17 April 1984 a demonstration was held outside the Libyan embassy in London. Two members of the embassy staff opened fire with sub-machine guns, wounding 11 of the demonstrators and killing a young policewoman called Yvonne Fletcher. Eventually, after an armed siege, all 30 of the people in the embassy were allowed to leave, taking with them crates which were marked as diplomatic baggage, which presumably contained the gun used to murder the police officer. Although the police questioned and photographed them all, there was nothing to be done and all were allowed to fly back to Libya.

Of course, diplomatic immunity can be abused and misused. A recent case of this involved the United States and caused something of a scandal in Britain. On 27 August 2019 a 19 year-old man called Harry Dunn was killed in England by a car driving on the wrong side of the road. The death took place near an RAF base which also housed an American listening post. Driving the car was Anne Sacoolas; a former member of the CIA and husband of a man working at the listening station, based at RAF Croughton in the English county of Northamptonshire. After the road accident, she was interviewed by the police and claimed diplomatic immunity, through her husband’s own status.

When the police in Northamptonshire applied to have Ms Sacollas’ diplomatic immunity revoked, the British Foreign Office informed them that she was not entitled to claim it in the first place. However, it was a moot point, because the Americans had by this time flown her out of the country. This disinclination to allow their citizens to be subject to the law of any other nation has been something of an idea fixe with the United States for many years.

The United States has always had a determination, which some say borders on the obsessive, to avoid being trapped by treaties and agreements with other nations. For instance, America refused to join the League of Nations after the First World War had ended. More recently, we note that 196 countries, almost every country in the world in fact, has signed up to the United Nations Convention on the Rights of the Child; a legally binding international agreement. The exception is of course the United States. This does not mean that Americans are less concerned about children and their rights than those other countries, it is merely part of their historic horror of binding themselves to treaties drawn up by people in other countries. In recent years, this has also led to America’s withdrawal from the United Nations Educational, Scientific and Cultural Organization (UNESCO) and United Nations Human Rights Council (UNHRC) as well. It is even suggested from time to time that the United States might one day leave the United Nations entirely.

A recent instance of this tendency was seen on 6 July 2020, when the United States notified the Secretary General of the United Nations that they would be withdrawing from the World Health Organisation in 2021. Every single country belonging to the United Nations, with the exception of Lichtenstein, belongs to the World Health Organisation, which was founded in 1948. It is the oldest arm of the United Nations and for America to withdraw from the body was seen by many observers as incomprehensibly reckless. It is only by understanding the background to the American view of foreign policy that it makes any sense.

The United States did not join Britain and France in any formal alliance against Germany in 1941, when they joined the war, because of precisely this distaste at becoming confined and constricted by treaties and obligations. This created a slight problem when American troops were due to arrive in the United Kingdom in 1942. The 1940 Allied Forces Act had been passed to allow the governments of Belgium, Czechoslovakia, the Netherlands, Norway and Poland to raise armies and station them on British soil. It was tacitly agreed that they would be allowed to run their own affairs in their military bases and that the British police would not concern themselves unduly about what went on. It was also understood, although not explicitly stated, that this would only apply to their own people and that it would be a different matter if British civilians were to be the victims of crimes committed by foreign troops.

It might have been thought that the United States would have been content to send their troops to Britain under similarly lax conditions, allowing them to do pretty much as they pleased within the confines of their own bases, but President Roosevelt demanded, and ultimately got, far more than this. He wanted an assurance that whatever any American soldier did, that man would be completely beyond the reach of British law. This immunity from prosecution was to be absolute and unconditional, for any kind of offence, up and including murder. Every single member of the United States armed forces in Britain would be free of any risk of arrest by the police for anything at all that he did. Such criminals would be answerable only to American law and American justice, administered by Americans.

Set out as plainly as this, it is hard to imagine any country agreeing to invite an army onto its soil over which it would have no control and whose soldiers were completely free from any of the laws which applied to everybody else. Certainly, had a Polish or French soldier murdered or raped a civilian, then the machinery of justice would have been brought into play without reference to anybody. Only the peculiar circumstances of those desperate times can explain why the British agreed to such demands from the United States government. The truth is that without American military assistance, there was not the remotest chance of Britain being able to beat Germany. The best that could be hoped for was for Britain to remain an independent nation, on the fringe of a continent ruled by the Nazis; a prospect which was unthinkable. It was for this reason that the British government, albeit with considerable misgivings, accepted the American proposals in their entirety. On 27 July 1942 Anthony Eden, who was then at the Foreign Office and who later of course became Prime Minister, wrote to the American Ambassador and outlined the proposals which had been discussed. After sketching out what had been said so far, he said;

In view of the very considerable departure which the above arrangements will

involve from the traditional system and practice of the United Kingdom there

are certain points upon which His Majesty’s Government considers it

indispensable first to reach an understanding with the United States

Government.

After reminding the ambassador that he had agreed that any American soldier who committed a crime in Britain would be dealt with by court martial, Anthony Eden continued;

His Majesty’s Government will be glad if Your Excellency will confirm their

understanding that the trial of any member of the United States Forces for an

offence against the civilian population would be in open court (except where

security considerations forbade this) and would be arranged to take place

promptly in the United Kingdom and within a reasonable distance from the spot

where the offence was alleged to have been committed, so that witnesses

should not be required to travel great distances to attend the hearing.

The American Ambassador was a little vague about some of the assurances which the British requested and when the United States of America (Visiting Forces) Act 1942 was passed by Parliament that August, none of what Anthony Eden had been so anxious about found its way into the legislation, which simply stated that, ‘no criminal proceedings shall be prosecuted in the United Kingdom before any court against a member of the military or naval forces of the United States’. The British government simply had to trust the Americans to follow the spirit, and not merely the letter, of the law.

The wording of the United States of America (Visiting Forces) Act differed sharply from the provisions of the Allied Forces Act, which had been passed two years earlier and applied to the armies of the various European countries which were based in the United Kingdom. That earlier act was very clear that;

Nothing…shall affect the jurisdiction of any civil court in the United Kingdom,

or of any colony or territory to which that section is extended, to try a member

of any of the naval, military or air forces mentioned in that section for any act

or omission constituting an offence against the law of the United Kingdom, or

of that colony or territory, as the case may be.

There was nothing here about immunity from prosecution; quite the opposite in fact. Although the authorities might have turned a blind eye to activities within the various armies, this was by way of a favour. Legally, every Polish, French, Dutch and Norwegian soldier in Britain was as strictly bound by the law as any British citizen.

The law which granted immunity to American servicemen in the United Kingdom lingered on until seven years after the end of the Second World War. It was eventually replaced with a broader law covering men and women serving with Commonwealth forces stationed in or visiting Britain, together with the forces of any other nation that might be added to the provisions of this act. This was the 1952 Visiting Forces Act. Those chiefly affected by this act were United States airmen stationed in Britain. From the end of the Second World War until the early 1990s, America had a number of air bases in Britain. Foreign soldiers who fell under the Visiting Forces Act were, in general, answerable to British courts for offences committed on British soil, although there were one or two loopholes which the Americans were not slow to exploit. One of these was that soldiers who fell within the scope of the act could not be held accountable to the British courts for anything at all they did in the course of their military duty; not unless their country agreed. This really was an extraordinary concession for the British to make and it has been the subject of some controversy. Who decided if the people accused of offences were acting in the course of their duty? That would be the senior officers of the country concerned.

To see how the Visiting Forces Act worked to the advantage of America, we need only look at one or two specific cases. The reason that this act really only affected American airmen is not hard to see. Although it theoretically applied equally to soldiers from Cyprus or Zambia, such troops have never been commonly seen in the United Kingdom. The chances of a Zimbabwean soldier killing anybody while on military duty in the United Kingdom have always been vanishingly slender, but given the large number of American servicemen in the country over the years, the occasional accidental death or murder was bound to be seen from time to time. When it did happen, the United States was very quick off the mark to make sure that it was they who dealt with the matter, rather than the British judicial system. Take, for instance, a case in 1979 which has eerie similarities to that of Harry Dunn, which was to cause a great deal of fuss 40 years later.

In August 1979 a United States marine who was working as a guard at a nuclear weapons store in the RAF base at St Mawgan, in Cornwall, was driving at great speed along the wrong side of the road. He killed a 17 year-old youth and was facing prosecution. The American authorities though declared that he was driving in pursuit of his military duties and that the incident thus fell under their jurisdiction, rather than that of the British courts. They had a perfect right to do this, although it caused some raised eyebrows in Britain. Incredibly, at his court martial, the man was fined just $1 for causing the death.

All of which brings us to the situation in the present day. What happens now if an American serviceman, or woman, commits a crime on British soil? Where does the jurisdiction now lie? The answer is complicated and the truth is that we simply do not know. The law itself is plain enough, but the governments of Britain and the United States have entered into a number of secret agreements which confer varying degrees of immunity on Americans working for their country in the United Kingdom.

After the death of Harry Dunn, the British Foreign Office advised the police that the driver of the car which killed him did not enjoy diplomatic immunity. By that time though, she had already been spirited out of the country. The fuss did not die down, as both the British and Americans hope it would. Instead, more and more questions were asked, until a secret agreement came to light which shed light on the subject of American immunity from prosecution in Britain.

The RAF base in Northamptonshire is home to an American listening station. Twenty five years ago, the Americans were very keen to expand this and bring in more staff. Most of these would be civilians and it was important to the United States that they should be protected from any inconvenience, such as being obliged to appear in British courts or anything of that sort. The letters between the Foreign Office and US Ambassador William J. Crowe, Jr cover the old idea that only staff actually on duty should be immune from the consequences of their actions and also explore the idea that immunity might be accorded to their families as well. The so-called ‘Croughton Agreement’, named after the RAF base, is open to various interpretations, especially as it has been amended since 1995. After the death of Harry Dunn, for instance, it was claimed that although immunity from prosecution had been withdrawn from staff working at RAF Croughton, it had, bizarrely, been retained for their families. This exact nature of the arrangements made with the Americans about this matter have yet to be released.