The following post by Feroz Khan was originally published at PakTeaHouse.net and provides an interesting perspective on the issue of diplomatic immunity and intelligence agents. Many people are saying that if Raymond Davis is not wearing a suit, or carries a gun, or has CIA ties then he cannot be a diplomat. But is this really the case? Could he be an intelligence agent and still have diplomatic immunity?
If Raymond Davis is an intelligence officer, he still will have diplomatic immunity. The intelligence community is a very small world and when a diplomat is accredited to a foreign country, the host country is notified about the posting and the person who who will be posted.
In this case Pakistan would have been duly informed by the United States that Raymond Davis will posted to Pakistan and in this case, Pakistan had the option to allow him into the country or not but the fact that Pakistan accepted his posting and issued an official visa to that affect means, legally under international law, that Pakistan accepted his credentials and that automatically conferred the status of a diplomat upon him.
Even if he is an intelligence officer, the protocol in this case would have suggested that Raymond Davis be considered as a “persona non grata” and asked to leave the country. When a diplomat is arrested for anything in a country in which they are posted, the local law enforcement authorities immediately notify their superiors up the chain of command.
In this case, once Raymond Davis was arrested, the police after ascertaining his identity should have notified the Interior Ministry and then the Foreign Office. Foreign Office is responsible for issuing visas to diplomats and once a diplomat is posted to Pakistan, they first go to the Foreign office and present their credentials as a sign of officially taking charge of their assignment and then, they are asked by the Foreign Office to formally present their credentials to the President of Pakistan as a sign of formally being accredited to the host country.
Thereafter, the Foreign Office informs the Interior Ministry that a diplomat, accredited to Pakistan, has assumed their duties. The Interior Ministry is responsible for all law and order issues in Pakistan and is the nominal head of all intelligence services working in Pakistan.
In the case of Raymond Davis, chances are that he would have not meet Asif Ali Zardari as he was more of a consular worker seconded to the United States Embassy than a principal diplomat, but it does mean that once his posting to Pakistan was suggested and his credentials provided to the Foreign Office; the Foreign Office would have consulted with the Interior Ministry on his posting and his personality and the Interior Ministry would have sought informational input from the various intelligence services and researched his background.
Once the Interior Ministry would have confirmed the bona fides of Raymond Davis, the Foreign Office would have issued him the visa, which is only a document that gives a foreign national permission to enter a country. In this case, the visa would have been an official one and once that issue was issued in conjunction with his work as “aide” to United States’ diplomatic staff in Pakistan, Raymond Davis would have meet the most basic conditionalities of Vienna Convention’s classification of a diplomat.
A diplomatic immunity is conferred by the host country and it can be rescinded at any time, when a diplomat accredited to a country breaks or violates his/her terms of diplomatic status. In the case of Pakistan and Raymond Davis, the most preferred course of action would have been for the Foreign Office to rescind his diplomatic immunity and declare him as “persona non-grata” and ask him to leave the country.
Furthermore, the police can only arrest a person accredited as a diplomat if and only when his/her credentials are rescinded and that too only after consultations between the host and the guest country agreeing to the fact that a diplomatic immunity is to be denied.
It cannot be unilaterally removed by the host country and this is due to the principle of “sovereign immunity” in international law (basically this caveat means that a foreign nation cannot be sued without its permission and this idea historically comes from the divine rights of the kings, where the European monarchs sought protection from acts of parliament – specially after Charles I of England was executed by Oliver Cromwell; a parliamentarian) under which a guest country’s diplomat cannot be arrested or charged with a crime WITHOUT the permission of the guest country itself!
Parentically speaking, all heads of state are entitled to sovereign immunity and it is intended to prevent them from being legally charged in the due process of their official duties and in the case of Pakistan, it implies, technically and theoretically, that General Zia-ul-Haq could not have charged Z. A. Bhutto with murder without Bhutto’s permission! It is the same idea that prevents George Bush, Jr. and his administration from being charged with any crime they might have committed, under international law, while in office.
As I said elsewhere, international law is observed more in the breech than in the observation of its intent.
In this case, when Raymond Davis was arrested, his diplomatic immunity was valid and even after the arrest, the Foreign Office did not cancel his official status in the country and when, under such stipulations, consular access to Raymond Davis was denied; Pakistan stood in violation of the Vienna Conventions.
Raymond Davis is alleged to be quilty of killing two people directly and a third person indirectly; and therefore he is alleged to be quilty of a double murder and man-slaughter. There is no denying this fact, but this fact is obscured by the formal procedural requirements of international law, based on its conventions and treaties, and the fact that these formalities were not observed and this event, which could and should have been handled on a diplomatic-official level was allowed to be victimized by political considerations fanned to the extreme by an overly agitated and hyper-nationalistic press-media of Pakistan.
As to the jurisdiction of the courts in this matter, Pakistani courts have no jurisdiction in this matter because to the best of information available, Pakistani Foreign Office has still not officially invalidated Raymond Davis’ official status, but seems to have confirmed it.
As long as Raymond Davis remains officially credited as a diplomat by the Pakistani Foreign Office, he cannot be detained and his detention in the present circumstances can be easily classified as ‘unlawful arrest” and this issue in a legal, and more importantly in a procedural sense, still falls under the purview of the Pakistani Foreign Office and it is for the Foreign Office; not the courts to decide whether Raymond Davis can be tried in a Pakistani court.
If and when the Foreign Office withdraws Raymond Davis’ official status in Pakistan, after discussing the matter with the United States and the United States agrees to the condition, only then Raymond Davis can be charged and tried in a Pakistani court for the crimes in he committed in Pakistan while on official status.
Pakistan cannot refer this case to the International Court of Justice because in order for the International Court of Justice to hear this case, it needs the concurrence of both parties to the dispute, Pakistan and the United States, that the case shall be referred to the International Court of Justice.
The correct procedure in this case would be, and this also strongly confirms and reinforces the purpose of John Kerry’s visit to Pakistan, that Pakistan declares Raymond Davis as a persona non-grata and expels him from Pakistan without charging him. The next step would be for the Foreign Office to instruct its embassy in Washington D.C. to file a case against Raymond Davis in the Supreme Court of the United States, which has the constitutional jurisdiction to hear cases involving the United States’ government and foreign governments. Pakistan has a solid case in this regard and if it follows the due process of the law and the right procedural mechanisms, there is a very good possibility that “justice for all” can be achieved without underming Pakistan-United States bi-lateral relations.
On a point of addendum, it should be noted and clarified that this case has no similarities with the case of Dr. Affia Siddique and should not be compared with that case, as the legal circumstances are entirely different.
Dr. Affia Siddique was arrested at the United States’ military base at Bagram, Afghanistan. According to international law and its intentions on the matter, a country’s military base on a foreign soil is to be considered in much the same sense as a country’s embassy on a foreign soil.
In other words, Bagram base was technically speaking “United States’ sovereign soil” and Dr. Affia Siddique was arrested for crimes committed on “United States’ soil” and therefore could be arrested, tried and charged in a United States Court and sentenced to jail term in a United States prison.
The United States’ embassy in Islamabad is considered as “United States’ soil” and Pakistan’s embassy in Washington D.C is considered as “Pakistani soil”. In a similar sense, the Indian High Commission in Islamabad is considered as “Indian soil” and Pakistani High Commission is considered as “Pakistani soil”, where the laws of the guest country apply and not those of the host nation!
To further illustrate this point, there was an incident in the 198os, when Germany was still divided into East and West Germany and the Cold War was still raging, when an East German airliner was hijacked and forced to land at the United States military base in West Berlin.
An airliner, under international law, is considered as the “soil” of the country, where it is registered and in this case, it was an East German airliner. Therefore, the act and the crime of hijacking was committed on the “soil” of East Germany, but the aircraft landed in a West Berlin military base belonging to the United States and therefore, on American “soil”.
Once aircraft had landed, the persons who had hijacked the aircraft, to seek asylum in the west, were arrested by the officials of the American military police and housed under arrest on a United States’ military base. East Germany asked for their return claiming that the act took place on its soil and they should be judged by its laws and the United States’ State Department agreed with this view and decided to charge the persons with violating the international law of hijacking and once found guilty, to send them back and the trial to this effect was to be held on the premise of the United States’ military base in West Berlin. The defense lawyers argued that international law did not apply in this case, as the arrest was affected on American soil and therefore, the laws of the United States would take precedence over international laws in this matter because though the crime was committed in East Germany, the persons were arrested in United States and thus, they had right to the full due process of the law as guaranteed under the United States’ constitution.
In the end, they were judged according to American laws, because the presiding judge in his verdict noted that though the crime was committed in East Germany, they were arrested by members of the United States’ military police, which operated under the United States’ legal jurisdiction and were performing their duties on a United States’ military base, which was considered as an American “soil” under international law and therefore, the laws of the United States, and not East Germany or international laws, were applicable to this case. According to the judge, the laws of East Germany or international legal jurisdiction could be considered over United States’ legal jurisdiction in the matter only if the United States’ government had given its sovereign consent to this idea and since it had not; the United States laws would be considered as supreme in this matter!
I remember perfectly well, when my late father was posted as a diplomat to Ottawa, Canada in the early 1980s, there was a fire in the Pakistani embassy there in the middle of the night. The Ottawa Fire Department first contacted the Pakistani embassy and once it officially got the permission, it entered the premises to put out the fire because technically speaking; had it entered the Pakistani embassy without permission and gone in as the Canadian law gave it every right, the Ottawa Fire Department would be invading “Pakistani soil!” (lol)
Therefore, in this case international law prevailed over domestic law and in the case of Pakistan and Raymond Davis, international law will prevail over Pakistani laws until and unless, there is an agreement between United States and Pakistan over this issue and international conventions are put aside in the favor of Pakistani laws.