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