Diplomatic Immunity

Many are requesting that the courts decide the fate of Mr Raymond Davis. Others seem to be using the issue as a way to blacken the eye of the world power just to bring them down a notch or two. The second reaction is unconstructive and actually hurts our own image in the world more than the Americans. The first, however, missing the important point of diplomatic immunity.

The Interior Ministry has already determined that Raymond Davis was carrying a diplomatic passport and a visa that was issued following a security clearance. The US has invoked Article 38 of the Vienna Convention and requested that Raymond Davis be released to their custody. So regardless of what the police investigators or the LHC thinks, this is a case that hinges on the question of diplomatic immunity.

Ambassador Zafar Hilaly describes the question of diplomatic immunity as the responsibility of the Foreign Office, not the courts.

The fact of the matter is that Raymond Davis is, by the reckoning of most neutral observers, a ‘diplomat’ for the purposes of Article 38 of the Vienna Convention and hence entitled to diplomatic immunity. No court needs to decide that, only the Foreign Office does, because his status is a question, not of law, but of fact, and by refusing to do so the FO has landed the government in a far greater mess than it would have been in had it alluded to international law and said that, given the circumstances, it was helpless. Our politicos, too, would have had to lump it. Because what is likely to happen is that either the US shuts shop and stops dealing with Pakistan or, alternatively, informs Pakistan that the immunity of its diplomats in the US will be withdrawn. Of course, for good measure, it can stop issuing visas for the 1,800 or so diplomatic and official Pakistani passport holders who travel to the US annually.

At this time, it would be wise to revisit what exactly diplomatic immunity means. Let’s first dismiss misunderstandings by explaining what it is not. Diplomatic immunity is not a ‘blank check’ to commit crimes in another country. Rather it is an agreement between countries that they will not prosecute each others diplomatic officials for crimes, choosing instead to either overlook the act in minor cases such as traffic violations or expel the official in more serious cases.

Najam Sethi has been doing a great job of explaining the intricacies of diplomatic immunity on his new show Aapas Ki Baat. Blogger XYZ of Cafe Pyala covered the basic points a few days ago.

1) Irrespective of a non-diplomatic visa (which seems to have become the main issue for some channels), a diplomatic passport – as the US claims the killer has – may still grant the man known as Raymond Allen Davis* diplomatic immunity under the Vienna Convention. [*This is assumed to be a fake name.]

2) The Vienna Convention actually grants immunity to diplomats (and their technical staff) from ALL criminal prosecution. No diplomat or foreign mission operative may be arrested by a host country, no matter what their crime (except in cases of property). (You may verify this from Clause 29-31 of the Convention.)

3) Since the American government has claimed diplomatic immunity for Davis, the Pakistan government must either accept their claim or the Pakistan Foreign Office – as the constitutional authority to decide such matters – must dispute this status. The courts are not the arbiters of the Vienna Convention under Pakistan’s own constitution.

4) By claiming to leave the matter in the hands of the courts or the Punjab government, the Pakistan Foreign Office – and by extension the Federal government – is in violation of Pakistan’s own constitution which details how issues of diplomatic immunity are to be handled. The Punjab police and Punjab government were wrong only to the extent that they should have referred the matter immediately to the US Consulate or the Pakistan Foreign Office before arresting Davis.

5) There are some 50-60 such contractors working for the US Embassy in Pakistan, who are all Blackwater-type operatives and whose job involves spying and ferreting out leads to trace Al Qaeda and Taliban leadership. Under a secret treaty signed by the military government of General Pervez Musharraf, a Joint Special Operations Command (JSOC) allows such operatives to work in Pakistan as well as Afghanistan. The important thing to remember here is that the military and the intelligence agencies are fully on board about this and know full well the mandate of these operatives. (This claim by Sethi, if true, of course flies in the face of those who have recently been painting Pakistan ambassador to the US Husain Haqqani as the principal villain in granting visas to these operatives, as if such visas are not overseen and approved by the ISI. It also means that those who point out that the Vienna Convention applies only to the discharge of official duties by diplomats and that Davis could obviously not be on any official mission at Mozang Chowk in Lahore, could be countered by the simple assertion by the US Embassy that he was.)

6) In case the Pakistan Foreign Office does decide to dispute diplomatic immunity to Davis, it will probably have to bear the brunt of reciprocal action from the US for reneging on a bilateral / international treaty.

7) Even if diplomatic immunity is denied to Davis, he will most probably be acquitted by the courts since his plea of self-defence will be very strong. As evidence for this contention, Sethi cited his own information that the two men killed by Davis were indeed brandishing weapons, that they were actually shot in the chest or on the side (contrary to news reports of their being shot in the back) and the context of previous attacks on foreigners in Pakistan and the atmosphere of fear that they have created.

Another point which should be considered is that diplomatic immunity works because it covers both countries involved. That means that our officials in America will be given the same treatment as we give. And as Ambassador Zafar Hilaly admits, we are doing the exact same thing, as are all countries. This is the cat-and-mouse game of diplomatic relations.

Of course, it is lamentable that nations lie and dissemble, and want gunmen and sleuths to be treated on par with diplomats in order to enable them to claim immunity from prosecution. But then, welcome to the real world. Lest we think we are any better, we have several Raymond Davis types in our missions abroad, trying to collect the same kind of information that he was. And, now and then, they too get caught and end up being repatriated, albeit without anyone being any the wiser.

Do you really believe that we don’t have our own Raymond Davis’s roaming in Washington, London, and Berlin? If that was the case, we should be taking the intelligence agencies to task for a failure to protect the national interests.

And while I know that it is quite the fashion to pretend that only angels come from the land of the pure, let us face the fact that we have cashed in some diplomatic immunity ourselves from time to time.

Coming to Pakistani diplomats invoking diplomatic immunity, let us recall the case of our Ambassador to Spain, Mr. Haroon-ur-Rashid Abbasi, who Pakistan withdrew from his post in 1975 without allowing prosecution when heroin was discovered in his suitcase.

Let us also recall the case of our longtime permanent rep at the UN, Ambassador Munir Akram in 2003 who was accused of assault by his then girlfriend. The US also asked Pakistan to waive immunity in that case, which Pakistan did not oblige. (The case was eventually settled when Mr Akram persuaded his girlfriend to withdraw the charges against him).

The Americans requested Pakistan to waive diplomatic immunity in the case of Ambassador Munir Akram, and we did not oblige their request. This was the right thing to do. Today, we are requesting that the Americans waive diplomatic immunity. Why would they?

Should Raymond Davis, or anyone, be allowed to come to our country and shoot us? Absolutely not. The government would be right to expel him from the country and issue a stern warning to the American embassy to ensure that their officials, advisors, and contractors are obeying the law.

Diplomatic immunity always sounds outrageous when the other guy invokes it. But it is important nonetheless. The fact is that we don’t know what will come in the future for our officials serving overseas, and we want to ensure that they are protected in any event. What happened on the street in Lahore is a tragedy. But let’s not take this tragedy of individuals and amplify it into a tragedy of nations.