The shooting to death of two Pakistani youths, namely Faizan Haider and Muhammad Faheem, by a U.S. Consulate official, Raymond Allen Davis, and the death of a third Pakistani, namely Obaid-ur-Rahman, by a vehicle operated by the U.S. Consulate, in Lahore on 27 January 2011 has, once again, raised concerns relating to the conduct of American officials working for the U.S. Embassy and Consulates in Pakistan.
Raymond Davis was arrested by the Punjab Police on the same day and, on 28 January 2011, was presented before a magistrate in Lahore, who remanded him into police custody for six days. On 29 January 2011, three days after the incident, the U.S. Embassy in Islamabad, without even naming Raymond Davis, called for his release whilst claiming that he was a diplomat and was being detained illegally in violation of the Vienna Convention on Diplomatic Relations, 1961 (the “Vienna Diplomatic Convention”). On 1 February 2011, the Lahore High Court, in response to a public interest petition, restrained Pakistani authorities from handing Raymond Davis over to the U.S. authorities and has ordered his name to be placed on the Exit Control List to prevent him from leaving Pakistan.
It may be pertinent to note that the U.S. Embassy’s press release of 29 January 2011 makes the following, rather surprising, claim:
“On January 27, the diplomat acted in self-defense when confronted by two armed men on motorcycles. The diplomat had every reason to believe that the armed men meant him bodily harm. Minutes earlier, the two men, who had criminal backgrounds, had robbed money and valuables at gunpoint from a Pakistani citizen in the same area.”
One wonders the basis on which the U.S. Embassy is claiming that two of the deceased had criminal backgrounds or had committed any crime. The deceased have not been found guilty of the offence alleged by the U.S. Embassy, either by the investigating police authorities or by any court of law. In making such an unwarranted claim, which is against diplomatic norms and also amounts to unlawful interference in a legal process of a host state in violation of Article 41(1) of the Vienna Diplomatic Convention, the U.S. Embassy has clearly overstepped its bounds.
The press release goes on to say:
“When detained, the U.S. diplomat identified himself to police as a diplomat and repeatedly requested immunity under the Vienna Convention on Diplomatic Relations. Local police and senior authorities failed to observe their legal obligation to verify his status with either the U.S. Consulate General in Lahore or the U.S. Embassy in Islamabad. Furthermore, the diplomat was formally arrested and remanded into custody, which is a violation of international norms and the Vienna [Diplomatic] Convention, to which Pakistan is a signatory.”
It seems that the U.S. Embassy is unaware that when a foreigner is arrested and claims diplomatic immunity, it is not the legal responsibility of the arresting authority, in this case the Punjab Police, to ascertain his diplomatic status; it is the responsibility of the arrested person and his embassy or consulate to establish his diplomatic credentials and the same cannot achieved by orally boasting of diplomatic immunity without any documentary proof. The Vienna Diplomatic Convention does not require states to assume that every foreigner is a diplomat. It is the responsibility of all diplomats to carry on their persons, at all times, their diplomatic identity cards, which are issued by the Foreign Ministry of the host state and to produce the same on demand when required by any government authority, including law enforcement agencies such as the police. The U.S. Embassy has overlooked the fact that Mr. Raymond Davis was arrested from a non-diplomatic vehicle (with non-diplomatic registration plates) and he failed to produce any diplomatic identity card to establish his diplomatic credentials.
Also, the mere holding of a diplomatic passport does not confer diplomatic status on someone. Diplomatic status must be expressly recognized by the host state. For example, a foreign diplomat in India will not be a diplomat in Pakistan. He may visit Pakistan using a diplomatic passport, however, he will have no diplomatic immunity in Pakistan by virtue of his diplomatic passport because he is not a member of any diplomatic mission in Pakistan and has not been recognized as such by Pakistan. Recognition of diplomatic status is expressed through the issuance of a diplomatic identity card to a person by the host state, which, in the case of Raymond Davis, seems to be absent.
Earlier, the U.S. Embassy issued the following press release on 28 January 2011, a day after the arrest and detention of Raymond Davis:
“A staff member of the U.S. Consulate General in Lahore was involved in an incident yesterday that regrettably resulted in the loss of life. The U.S. Embassy is working with Pakistani authorities to determine the facts and work toward a resolution.”
Clearly, there is an inconsistency in the U.S. Embassy’s presses releases of 28 January and 29 January. The U.S. Embassy did not raise the issue of diplomatic immunity a day after the arrest and, in fact, referred to Raymond Davis as being a “staff member of the U.S. Consulate, General in Lahore”. In other words: a consular officer. The U.S. Embassy’s press release of 28 January only reinforced the belief of the Punjab Police and the Punjab Government, and justifiably so, that Mr. Raymond Davis was not a diplomat but a “consular officer” and, as such, not immune from detention and prosecution.
Under the Vienna Convention on Consular Relations, 1963 (the “Vienna Consular Convention”), consular officers do not enjoy unfettered diplomatic immunity. Article 41 of the Vienna Consular Convention states:
“Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.”
It is evident that shooting to death of two human beings constitutes “a grave crime” pursuant to the Vienna Consular Convention and Raymond David’s detention is pursuant to a judicial process, having been authorized by a competent judicial authority as per the Vienna Consular Convention.
What needs to be appreciated by the U.S. Embassy is that if a Pakistani national, shoots dead two Americans on the streets of New York using an unlicensed weapon whilst driving a non-diplomatic vehicle and is, subsequently, arrested by the New York police and claims diplomatic immunity without producing any diplomatic ID, will the New York police be bound to release him or keep him detention till such time that he or the Pakistani Consulate in New York establishes his diplomatic credentials? Clearly, the New York police will have the right to detain him till such time.
Therefore, in light of the aforesaid, the arrest of Raymond Davis by the Punjab Police was legal and not in violation of the Vienna Consular Convention or, for that matter, the Vienna Diplomatic Convention (both ratified by Pakistan in its Diplomatic and Consular Privileges Act, 1972). Furthermore, the continued detention of Raymond Davis is not a violation of the Vienna Diplomatic Convention till such time that it is proved that he is a diplomat.
The U.S. Embassy, until now, has failed to establish the diplomatic status of Raymond Davis. Indeed, the evidence so far is to the contrary. A local news channel has shown a letter written by the U.S. Embassy dated 20 January 2010 wherein it is informing Pakistan’s Foreign Ministry that Raymond Davis is a member of the Embassy’s “administrative and technical staff” and requesting for him the issuance of a “non-diplomatic ID” card. This letter clearly shows that the U.S. Embassy itself did not recognize Raymond Davis as a diplomat. It, therefore, seems that the U.S. Embassy’s 29 January 2011 press statement claiming that Raymond Davis is a diplomat is an afterthought intended to shield him from criminal prosecution.
No one should dispute the fact that diplomats are immune from criminal prosecution under the Vienna Diplomatic Convention (Article 31(1)). Even if we were to hypothetically assume, without admitting, that Raymond Davis is a diplomat, there are still options that can be exercised. The Vienna Diplomatic Convention clearly reveals its spirit when it states, in its preamble, that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” The Vienna Diplomatic Convention allows foreign states to (i) punish their own diplomats for committing crimes in host countries (Article 31(4)) or (ii) waive the diplomatic immunity of its diplomats so that they can be prosecuted by the host state (Article 32). Therefore, the host state may itself request the foreign state to waive the immunity of a diplomat so that it can prosecute such diplomat.
The Vienna Diplomatic Convention also contains a mechanism under which a diplomat can be stripped of his diplomatic status and immunity by the host state. The host state has the authority under Article 9 of the Vienna Diplomatic Convention to declare a diplomat as a persona non grata and, thereafter, under Article 43(b), to issue a notice to the foreign state’s embassy informing it that it refuses to recognize such person as a member of the foreign country’s diplomatic mission. Upon receipt of the notice under Article 43(b) by the foreign state’s embassy, the diplomat in question forthwith ceases to remain a diplomat and is automatically stripped of his diplomatic immunity. Therefore, even if it is established that Raymond Davis is a diplomat, the Government of Pakistan can strip him of his diplomatic status and immunity by, firstly, declaring him a persona non grata under Article 9 of the Vienna Diplomatic Convention and, thereafter, by issuing a notice under Article 43(b) of the Vienna Diplomatic Convention to the U.S. Embassy, Islamabad informing it therein that Pakistan refuses to recognize Raymond Davis as a member of the U.S. diplomatic mission.
Even if Pakistan does not take the above action, the U.S. can take the moral high ground and itself waive diplomatic immunity for Raymond Davis. There are precedents in this regard and one need not look beyond the manner in which the United States itself views diplomatic immunity. Though, in the case of Raymond Davis, who is a junior functionary, the U.S. Embassy is claiming diplomatic immunity for a person who shot dead two Pakistani youth using an unlicensed weapon, the U.S. itself demanded the lifting of immunity of a senior diplomat who accidently killed a U.S. citizen in a car accident on its soil.
In 1997, Gueorgui Makharadze, the Georgian Deputy Ambassador to the United States, accidently killed an American teenager in a road accident in Washington, D.C. The U.S. exerted extreme pressure on the Georgian government to lift his diplomatic immunity even though it was not a deliberate shoot-to-death killing, as in the case of Raymond Davis, but a car accident. The Georgian government finally relented “in the interests of U.S.-Georgian relations and on moral and ethical grounds.” Makharadze was tried in a U.S. court, found guilty of manslaughter and sentenced to 21 years in prison. While lifting Makharadze’s diplomatic immunity, then Georgian President Eduard Shevardnadze observed, “I cannot imagine diplomacy and politics devoid of moral principle.”
Even if Raymond Davis is a diplomat, wouldn’t it be prudent for the U.S. to follow little Georgia’s example and lift his diplomatic immunity in the interests of U.S.-Pakistan relations and on moral and ethical grounds. Or, perhaps, unlike Georgia, the United States of America sees diplomacy as being devoid of moral principles.