Contrary to the Establishment line, Prince Andrew does not automatically have diplomatic immunity for statutory rape charges in the USA: and if he does, the UK Government can waive it.
Any British diplomat facing investigation for under-age sex in the USA would, beyond doubt, instantly have their immunity waived by the UK government. There is no reason why Prince Andrew should be different.
That is even if he has diplomatic immunity in the first place. The children of a Head of State do not have immunity under the Vienna Convention on Diplomatic Relations. It is generally accepted that they do often enjoy such immunity, but this is not contained in any international treaty and most experts in public international law do not even think it reaches the bar of customary international law, rather reaching the lower standard of comity – what states usually do in friendly co-operation. Comity can be argued in an international court, but it is the weakest form of international law below treaty law and customary law. Comity in this case boils down to no more than the notion that Donald Trump would not want Andrew in the dock in Florida, because he would want Ivanka to be protected from ending up in the dock in London.
A UN Commission considered this subject:
128. The doctrine reflects the various viewpoints. It is noted in Oppenheim’s International Law that a comparison of the status of members of the family of a Head of State with the position of the family of a diplomatic agent indicates that members of the family of a Head of State forming part of his household enjoy immunity from the jurisdiction of the host State. The fact that members of the family of a Head of State and Head of Government are protected by immunity is also acknowledged by P. Gully-Hart. In the view of A. Watts, the immediate family of a Head of State may enjoy immunity, but on the basis of comity and not of international law. This view is endorsed by S. Sucharitkul. The view that, if the members of the family of a Head of State are also granted immunity, it is on the basis only of international comity and not of international law was supported in the resolution of the Institute of International Law.
Even then, it is universally agreed that children of a Head of State would only be covered by immunity if they were part of the head of state’s household. Now it is important to note that the word “household” here, in international law, does not necessarily have the same precise application as it does in UK domestic political parlance. In the UK, Prince Andrew is part of the “Royal Household”, which is why he troughs a massive £280,000 a year for doing very little. But in international law the provision is much more likely to be interpreted in the common meaning, as in dependent family living together in a single home. Dependent children might include adult students but does not stretch to 60 year old millionaires.
The USA of course has a habit of ignoring international law when it so wishes under the doctrine of “exceptionalism”. However it would need British agreement not to claim diplomatic immunity for extradition proceedings in the UK to go ahead. It is sickening that Julian Assange is in a maximum security prison awaiting extradition for publishing the truth, while Prince Andrew is in some mansion having his feet massaged.
There is a further argument that Prince Andrew had immunity while on his visits to Epstein because of his status as “International Trade Ambassador” for the UK. That is a possible argument, although just like immunity for children of the Head of State, the situation on temporary visiting envoys is not firmly established by treaty. There is a UN Convention on Special Missions, but only about 30 countries ever ratified it, and neither the UK nor USA has ever done so. If Andrew was in the USA in that capacity, and if the State Department had received a formal Diplomatic Note indicating he was visiting on official business, customary international law would tend to support the view he had a claim to immunity. This quote from the German Federal Supreme Court is given in a very interesting paper on the subject in the European Journal of International Law:
irrespective of the [UN Special Missions Convention], there is a customary rule of international law based on State practice and opinio juris which makes it possible for an ad hoc envoy, who has been charged with a special political mission by the sending State, to be granted immunity by individual agreement with the host State for that mission and its associated status, and therefore for such envoys to be placed on a par with the members of the permanent missions of State protected by international treaty law.
However, it is not plain that on all occasions when he partied with Epstein, Andrew was in the States on an official basis, and even if he was, the UK government can still waive his immunity. The media are attempting to fix in our minds the idea that his immunity is immutable and nothing can be done. Far from it. It is conferred by the sending government and agreed by the receiving government. The sending government can simply waive or revoke it at will. This is frequently done.
All of this might be entirely academic because of the extraordinary inaction of the FBI on the case. It beggars belief that Ghislaine Maxwell has not yet been arrested or interviewed about the overwhelming evidence of her role as a procuress or pimp. It further beggars belief there has been no interview under caution of Prince Andrew in either the United States or the UK. The problem is, of course, that any number of very powerful people are going to be implicated in any serious investigation. In particular, the Clintons still have an astonishing amount of influence over senior staff of the FBI.
Only the power of public outrage is ever going to force any action, and this will be difficult to mobilise and focus; doubtless the mainstream media will shortly seek to close the matter down. But we can do a little to push things forward by insisting on a declaration from Boris Johnson that Prince Andrew’s bogus claim to diplomatic immunity will be denied or waived.
