The murder of two Pakistanis by the American man identified as Raymond Davis has riled many Pakistanis. Besides fanning the anti-American sentiment, it has also perplexed Pakistanis because of the rather mysterious manner in which the whole incident played out. From a legal standpoint, solving the mystery of the American’s identity is the most critical part of the ongoing investigation, since it would determine whether or not he has diplomatic immunity from criminal prosecution in Pakistan.
There are some indications that Raymond Davis is not a diplomat. However, irrespective of his identity or legal status, the relevant question is whether Raymond Davis should be allowed to get away with murder? This question ties in with the larger issue of how the principle of diplomatic immunity could be abused under certain circumstances.
By way of background, the foundation for this principle was laid down in the Vienna Convention on Diplomatic Relations, 1961, which is considered the most important international agreement on diplomatic immunity. The relevant part of Article 31 of this Convention sets out the immunity of a diplomatic agent from the criminal jurisdiction of the country in which the diplomatic agent is working. A diplomatic agent has been defined in Article 1 of the convention as the head of the mission or a member of the diplomatic staff of the mission which includes administrative, technical and service staff of the mission. Therefore, strictly in accordance with the Vienna Convention, if Raymond Davis’s identity as a diplomatic agent is established, he should be let off the hook.
While this law may seem discriminatory and abhorrent, especially in this particular case, at the state level, it is quite fair and uniform in its application to diplomats. In fact, in the area of diplomatic relations, it has its roots in the principles of goodwill and reciprocity. The US itself is no exception in generously granting diplomatic immunity even in some cases involving serious offences. In one case, the son of a military attaché from Ghana who was suspected of committing 15 rapes was allowed to leave the US without being prosecuted on the grounds of diplomatic immunity.
So why is the principle of diplomatic immunity so widely recognised and enforced? One of the rationales for granting diplomats this privilege is their lack of understanding of the local customs. If this is the case, what is the basis for granting immunity from criminal prosecution? It should be easy to understand that regardless of what state the diplomat is working in, rape and murder are not part of its local customs.
Under the Vienna Convention, the only way a diplomat could be prosecuted for a crime is if his own state expressly waives the immunity. Yet, it could be charactericed as an irrelevant provision that would hardly be enforced regardless of how heinous the offence is. In the case of Raymond Davis, the US government has already raised the issue of diplomatic immunity. Assuming Raymond Davis is a diplomat, the demand is legal. Moreover, I cannot think of many states that would waive this immunity to enable prosecution of its diplomats in a foreign country.
Clearly, the principle of sweeping diplomatic immunity needs to be revisited. Like any law, the benefits of the law should be balanced against the costs. Under prevailing principles of international law, the benefits of sweeping diplomatic immunity seem to outweigh the costs, including the costs of not prosecuting diplomats and their family members for rape and murder.
Published in The Express Tribune, January 30th, 2011.