Pakistan is a signatory to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The substance of both Conventions are part of Pakistani law through the Diplomatic & Consular Privileges Act 1972.
Under the Vienna Convention on Diplomatic Relations, a diplomatic agent cannot be arrested or detained. Period. No exceptions. The same for members of the technical and administrative staff of a diplomatic mission.
Many other countries in the world have adopted this convention and usually hold to the same. Whether an ethical consideration or no, such a convention is also to protect the lives and property of each nation’s own diplomats.
Thus, if Pakistan was to prosecute a U.S. diplomat rightly accused of murder in Islamabad – what would stop the U.S. from bringing trumped-up terrorism charges against a Pakistani diplomat in Washington? The whole diplomatic system would be jeopardized.
Perhaps, the closest a country has been to ignoring the Convention was when someone fired a machine-gun from the Libyan embassy in London upon a crowd of protesters outside and killed an unarmed British police-woman as a result. The UK police laid siege to the embassy for more than a week (in itself a violation of the Convention). The British police were not allowed to enter the embassy and/or to waive diplomatic immunity for the Libyan embassy staff. The Libyan police were ordered to besiege the British Embassy in Tripoli. Eventually, the UK broke off diplomatic relations with Libya but the embassy staff was nevertheless allowed to return to Libya unhindered.
Pakistan could thus become an international pariah with such willfully violating of this Convention as to confer immunity upon such diplomats. A first step might be that all NATO countries (and other countries under US influence) would then withdraw their diplomatic missions from Pakistan citing ‘risks to personnel’.
However, consular staff (as opposed to diplomatic staff) enjoy only a limited immunity under the second Vienna Convention. The second Convention does not protect them against ‘grave crimes’.
The US originally termed the man known as “Raymond Davis” as a staff member of the Lahore consulate. That was insufficient to save him from a murder charge – given the limited immunity conferred by the second Convention. Therefore, “Raymond Davis” was subsequently termed a staff member of the US Embassy in Islamabad assigned to the Lahore consulate. This would bring him under the protection of the first Convention.
Who will decide what was his actual/official US capacity? The courts?
If Davis raises a plea of diplomatic immunity, the court should ask the Federal Government to verify his status. Section 4 of the Diplomatic & Consular Privileges Act 1972 states that ‘if any question arises whether or not any person is entitled to any privilege or immunity under this Act… a Certificate of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact’.
In other words, the courts have to accept the government’s finding. The reason for maintaining the government’s primacy in the matter is that the delicate matter of maintaining diplomatic and foreign relations is not considered to be within the competency of the courts alone.
Under Article 10 read with Article 39 of the first Convention, the Ministry of Foreign Affairs has to be notified of the appointment of persons to a diplomatic or consular post and about their entry into the host country. Such immunity and privileges are expected to start from entry for eligible persons by the host country for the purpose of taking up their post. (Or – if such officials were/are already in the host country at the time of their appointment – this immunity was/is to begin from the time such an appointment is notified to the Foreign Ministry of the host.
The holding of a diplomatic passport alone means nothing.
There is therefore only one question that is to be answered. On the date when Raymond Davis killed the two men in Lahore, was his status as a diplomat duly notified to the Ministry of Foreign Affairs? If not, the Pakistani government would be completely within its rights under the Conventions to deny him immunity.
The fact that the Foreign Ministry has refused to comment tends to indicate that his appointment was not notified. Otherwise, the government could have easily used the dictates of law as an excuse to hand him over. It is clear that the only compulsions currently operating upon the government are political (both American and perhaps other parties) and not legal.
However, the government cannot bury its head in the sand for much longer nor can it pass the buck on to the courts (who are obliged to accept the government’s certificate in the matter).
The other issue that bears greater scrutiny (than appears to have been given thus far) is the profile of the 3rd man who was killed by the SUV coming, evidently, to save Davis. Was it driven by a consul official?
As pointed out above, consul officials are not immune from arrest for grave crimes. Manslaughter is a grave crime. In any event, the consul is not immune from civil suits in relation to road traffic accidents. Why are there so few reports about the background of the third man? What are possible options under consideration in his case?
Last, since the question of ‘green cards and dollars’ came up, shouldn’t the wishes of the deceased closest family members be considered? While they may indeed want to see Davis punished … they may instead be of the view that nothing will bring back the dead so they might as well accept a solatium.
Should that decision not be theirs without influencee by other perceptions of ‘honour’ and ‘national pride’? The families will be facing the consequences of their decisions long after the media and the civil society groups have moved on to more topical issues.
The writer, Salahuddin Ahmed is a lawyer practicing in Karachi and is a partner in the law firm Malik, Chaudhry, Ahmed & Siddiqui
Comments
13 responses to “Raymond Davis immunity issue explained in simpler terms”
Raymond Davis is just a symptom of a deep seated disease. The truth is that there are hunderds of Raymond Davises in Pakistan. Dealing only with the symptoms and leaving the disease untreated would be the height of folly.
Most people posting here must be well aware that it is traitors like Zardari, his Interior Minister Malik and their henchmen, who freely issue visas on demand to the Americans. Patriotic journalists and lawyers need to put up a united front and commence legal proceedings for treason against Zardari & Co.
It is essential not to release Davis and to punish him for the murders. The publicity that this will generate will humiliate the USA and it could force it to re-consider its insane, inhuman policies vis a vis Pakistan.
Here is an excellent article by Saleem Safi – a "must read":
http://www.jang.com.pk/jang/feb2011-daily/08-02-2…
"if Pakistan was to prosecute a U.S. diplomat rightly accused of murder in Islamabad – what would stop the U.S. from bringing trumped-up terrorism charges against a Pakistani diplomat in Washington? "
what lame argument
If Pakistan does not prosecute the US 'diplomat' than does that stop US from doing *anything*? NO
if they want to fck the Pakistani diplomat than they can do it anyway
Lets call a spade a spade. The government dithered from the moment the murder was committed. It could have then and there argued that Mr. Davis had diplomatic immunity or not. The fact that this is dragging on, and the federal government is using the courts as an excuse not to clarify its position is compromising Pakistan's diplomatic standing at a global level.
The US knows that the Pakistani state will blink. The military and the civilian government are running on foreign aid, and since the people of Pakistan are not going to pay their bills and taxes the state will end up bending over backwards to serve US interests.
The US knows it has lost the battle in the court of public opinion, whatever its does, whatever Mr. Davis says is not going to be viewed as justice served by the people of Pakistan. The Pakistani state has little leverage and the US can go on to threaten cutting off aid or curtailing diplomatic contacts.
People who demand justice should also appreciate that the courts could also rule in his favor. If a Pakistani court hears the case and declares him innocent, are the people of Pakistan going to accept that verdict? Or are we all so emotionally charged that its revenge we seek not justice.
Glad to finally read a sane rational article on the issue and also the mention of the third innocent person killed! First two guys were 99% petty street thieves but what about the third innocent person!
Judging by the comments on Salahuddin Ahmed's excellent article, it seems Raymond Davis is far from the only one who can be accused of shooting from the hip! Almost everyone seems to have an emotional irrational take on the subject, pre-determining innocence or guilt without a shred of evidence, and being carried away into tirades against Pakistani impotence against American imperialism, etc. etc!
Before any "prosecution" there needs to be an investigation by the Police whether the shooting was in self defence, or due to a genuinely peceived threat to his own life, and whether his use of a firearm was reasonable in the circumstances. This investigation will largely determine the charge (as opposed to the relatively smaller misdemeanor of carrying an unlicenced weopan as a foreigner) and the Court's verdict…Mr. Davis' own evidence is crucial to this investigation; if the man is innocent it seems exceedingly foolish of the US Government to press for his release even before this investigation is complete. Threats of cutting off US aid, or an all out diplomatic war undermines the man's own case.
Those that are jumping up and down about "national pride and honour" also need a polite reminder that this is a nation where two innocent boys were recently mercilessly beaten to death by a mob in Sialkot with the police watching, and how their bodies were subsequently dragged around in an open truck, by their own countrymen. Or how two teenagers suspected of shoplifting were burnt to death by a mob in Karachi. Murders committed by our own countrymen are no less gruesome than those carried out by an American; politicising the issue may be fun but helps neither the victims nor the accused.
Knowing Pakistan, the US might sucessfully persuade the Federal Government to falsely back date Raymond Davis' notification as diplomatic staff; which is a pity because the man could well be acquitted if the normal course of law is followed. I can already hear wails of disagreement about the police or the sessions court will deliver a politically driven investigation or verdict, but for heaven's sake we have to stop shooting from the hip at some point!
With regards to the third victim, the motorcyclist accidentally hit by the embassy vehicle, the lack of reports or excited chatter should not really surprise the author; he knows very well that over 400 people are killed every day in Pakistan in road traffic accidents. Our poor motorcyclist was just one of those statistcs. While one sincerely hopes his family would be justly compensated,and reckless drivers brought to book, is this also to be hyped as a matter of national pride? In which case should we also not be a little bit interested in following up the story of the man run over by the Punjab Chief Secretary's official car last year, or countless pedestrians mowed down by recklessly driven vehicles every day?
The most interesting thing about this story, I am sure, is that at least one American wishes he were a Pakistani; If Davis was, he would probably be given a police commendation (unless they wanted to claim the kills themselves in a "police muqabla" as the Punjab Police are awfully keen to do) there would be no investigation, and the story would have hardly made a column on page 8 of any newspaper.
It's true that you can't keep him in prison or punish him but this situation provides us the perfect opportunity for bargain for return of Dr.Afia Siddiqi….however the big question is that who will bargain? slaves do not bargain with their masters
Usman Malik
Who informed you the first 2 guys were thieves? Have some sense before writing baseless comments.
Secondly, the rationality in the above article is limited. US alone has violated the rights of consular staff of diff countries for much lesser alleged crimes then murder. Now, the issue is beyond the loss of the grieving families it is definitely about national “pride” and “honour”.
Can’t we as a nation defy the arrogance of an aggressor and oppressor like US? Are we fine with the fact that US sponsored mercenaries roam our streets freely? Defiance has not harmed Cuba, why can’t we say No? If the politicians who have stakes in US and Europe act like puppets it’s understandable, but why the citizens of Pakistan have gone numb?
Seriously we are still comparing this case with Aafia!!
@Abdullah – I am not living in Pakistan for quite some years now, but tell me boys on bikes are not stealing from people coming out of ATMs any more? Streets crimes are a history in today's Pakistan?
If this guys is indeed a spook why would he risk his deep cover just to kill two "innocent" Pakistanis enjoying a bike ride?
Finally once again, I fail to find anyone talking about the third guy!
@ Abdullah wrote "Who informed you the first 2 guys were thieves? Have some sense before writing baseless comments."
Practice what you preach Mr. Abdullah. It is all over the media that the two bikers had pistols on them. Most of us are getting our news from different sources and this has been reported by all of them. How many young men on a motorbike with guns could be upright citizens? Please don’t let your hatred for America and for white people in general cloud your basic sense of reasoning.
Let me ask you one more question, have you ever been robed by two men on a bike, this is exactly how it goes down. I would not wish that on an enemy. I have been robed in front of my house with neighbors guard sitting on the bench not too far. The first sight of a gun pointing at you, no matter how rusty, paralysis you and what happens in the next few seconds scars you for life.
@Honor Living.
Firstly, what made you infer that hatred about white folks is involved in this affair. Are you still supporting a colonial mind set where gora sahib is always right. Wake up we gained our first independence in 1947 and the second one will be coming soon InshaAllah.
Secondly, it’s not just Pakistan or the Muslim world only, even the Europeans dislike the US policies due the brutal and barbaric operations both open and covert carried out by US around the globe.
Thirdly, a lot of people in Pakistan carry licensed weapons for protection. Your analogy is feeble, for example in Karachi two guys were caught driving a white corolla and looting people and dishonoring women so from now on anybody who drives a white corolla is a fair game for vigilantes.
Finally, even if he fired in self defense as propagated by pro US elements, what was a special-op guy doing in Lahore taking pics of sensitive installations, carrying sophisticated communication equipment and carrying weapon with prohibited bore bullets? Why are such mercenaries roaming freely on the streets of Islamabad?
Have some honor, honor living. Freedom only comes to those who break free from the shackles both mental and physical.
To all those blaming Pakistani nation for "jumping up and down" about national pride and honor, please do not loose sight of Dr. Aafia's case wherein a biased jury pronounced her guilty "against all odds" and the judge openly threatened to make her life miserable. There Americans feel pride in their "flawless system." But when it comes to extracting interests abroad, the same Americans have no respect for others' systems, no matter how good or bad they are. In the case of Raymond Davis, it is very much evident that Americans want to avoid judicial proceedings for obvious reasons and some local "intellectuals" stand by them in the "nobel cause" of saving an "immune person" no matter how much truth is to be twisted or facts to be distorted.
I think Mr. Salahuddin's article is a truly unbiased legal commentary on the issue, while taking into account the involved political and societal nuiances. The problem here is a debate between two extreme mentalities. Let us not discuss issues like that of Raymond Davis with either "foreign funded/influenced mentality" or "chauvinist/patriotic mindset." Leave the emotional discussions for the bereaved families and try to help the real victims/innocents, regardless of who they are. At the same time, let's also try to find out accountability for people whose support is an impetus for foreigners' dubious status and illegal actions on our land with all sorts of impunities and immunities. Why not they have a clearcut say in the matter as to whether or not Raymond Davis is entitled to any immunity? Shouldn't they be held accountable for putting country, both internally and internationally, in an embarrassing situation?
Raymond is agent of USA and USA is having double standards. For their own citizens they feel that they have all rights and for others they feel that there are no rights.
Shame on our nation shame on our people.
loss weight in 3 days
The general accusation of US double standards is entirely appropriate, but in this case the mighty US backed down from its original stance of claiming diplomatic immunity, and had the Diyat money paid, completely in accordance with Pakistani Law – Are we now howling about our own Islamic laws or what? Reportedly, in addition to the huge amount of money, the families also gratefully accepted US green cards and have gladly emigrated to the land of the infidels, as I suspect most Pakistani families in their situation would have done, so what is the problem?