Pakistan

Only embassy staff enjoy absolute immunity: Experts

They, however, agree if Davis was consulate staff, he can still be prosecuted.

Kamran Yousaf February 04, 2011

ISLAMABAD: The Gilani administration is learnt to have sought the opinion of leading international law experts just as one of the top government ministers informed the Senate on Wednesday that the American national behind the killing of two Pakistanis last week in Lahore was holding a diplomatic passport.

But is the man identified as Raymond Davis, under investigation on double murder charges, indeed a diplomat? And does that mean the government is succumbing to intense US pressure for the man’s release?

There are two conventions governing diplomatic and consular relations among the states: the Vienna Convention of 1961 deals with diplomatic relations while the 1963 caters to consular ties.

The difference between the two international laws is that one provides full immunity for diplomats while the other has restricted privileges.

When the Lahore shooting incident took place last Thursday, the US initially said Raymond Davis was a member of its consulate’s ‘technical and administrative staff’ in the provincial capital.

In that case, the US national has no diplomatic immunity under the Vienna Convention of 1963, said Ikram Chaudhry, who filed a petition in the Supreme Court, asking the court to rule that the detained American national “does not enjoy any immunity”.

“The Vienna Convention of 1963 clearly states that consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime,” Chaudhry argued.

He said the Lahore incident constituted a ‘grave crime’ and Raymond was liable to be arrested and tried in the court.

However, the US Embassy has now changed its stance.

“We have checked his record which indicates he is a member of the technical and administrative staff assigned to the US embassy in Islamabad,” said a US Embassy spokesperson.

“Being assigned to the US embassy, he enjoys full criminal immunity under the Vienna Convention of 1961,” said Courtney Beale.

She maintained that the US government had ‘absolutely no doubt about his diplomatic status.’

“He should not have been detained or tried in the court...this situation worries us,” she added.

Barrister Zafarullah, who also moved the Supreme Court against the possible extradition of Raymond Davis, said there was no concept of “absolute diplomatic immunity as such”.

“What if a diplomat enters the White House and kills the American President and later claims immunity. Do you think immunity is available in such a case…absolutely not,” he contended.

“The immunity is only applicable when a diplomat performing official functions and it is not meant for benefiting individuals,” Zafarullah maintained.

However, the government, which is under intense US pressure, has not yet made up its mind on how to deal with the matter.

One of the experts, who are advising the government on the legal implications of the incident, spoke to The Express Tribune on condition of anonymity.

He said the Vienna Convention of 1961 did “provide full criminal immunity”, but the incident of Lahore was “too blatant to be ignored”. However, he argued the Pakistani courts did not have the jurisdiction to give rulings on immunity.

Published in The Express Tribune, February 4^th, 2011.

COMMENTS (10)

LTC William Roth | 13 years ago | Reply @gmail.com The boys that were shot were armed and assalted Davis with intent to do harm. A trained military man as ex-special forces are, know well the rules of engagement. The police stated that the gun pointed at Davis did not have a round in the chamber. Was Davis to know that? Maybe the boy forgot to lock and load. The result in any case is the same. Self defense!. A Punjab policeman would have done the same if a gun were pointed at them. Even witnesses said,the boys were armed. Anti American propaganda has made a field day over this case,without reviewing or caring where it will go. I say,bounce the check to Pakistan. They are the same as the Taliban. Let Obama know this is real,and not in the interests of our country.

Sobriquet | 13 years ago | Reply @Kamran: Your comment: "if the boys killed by Mr Davis were sons of our President and the Prime Minister, what would have been the govt’s response?" Shows that your are using exaggeration to strengthen your argument against Davies. But to turn your logic around, if Davies was the US President would he have been arrested by Pakistan? The fact is the boys were NOT the sons of Pakistan's President and Prime Minister. In any case, the shooting has to be seen in the light that the two were pointing guns at a car. So the shooting has an element of self defence. This would also be applicable if the boys were the sons of Pakistan's President and Prime Minister. Diplomatic immunity is secondary; The first thing that needs to be cleared is why they were pointing/flashing guns at a passing car.

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Ramiz | 13 years ago | Reply And where are people like Qadri now?

Ramiz | 13 years ago | Reply Why is US pressurizing Pakistan government to release Davis? I thought they were fighting for world's peace. I think they want to stop any kind of bloodshed, starting from Davis.

SYED ADEEB | 13 years ago | Reply Raymond Allen Davis, an official of the US Islamabad Embassy or the US Lahore Consulate, is either an official/staff agent of the US Central Intelligence Agency (CIA) or a special operations contractor of the US CIA, according to American press-media reports. America's Denver Post daily newspaper reported on 2 February 2011 at 10:20 PM (MST) that: "The American [Raymond Allen Davis] accused of killing two Pakistani civilians [on 27-1-2011 in Lahore, Pakistan] has a home in Highlands Ranch [Douglas County, (near Denver), Colorado, USA], 9News has confirmed. Wednesday afternoon, multiple sources confirmed that Raymond Allen Davis has a home in Highlands Ranch. Davis' security firm has filed paperwork to do business in Colorado." "Davis is currently renting a home with his wife in Highlands Ranch and Davis' wife gave 9News a name and number she says she was instructed to give to reporters. The name is that of a [US] CIA spokesperson and the number is in Washington, DC. Calls to that number were not returned Wednesday." "Public records checked by The Denver Post indicate Davis, 36, and his wife have lived in the 9700 block of Wedgewood Drive since August, and he has previously lived in Las Vegas, [Nevada]; Lexington, Kentucky; Vail, Arizona; Fort Bragg, North Carolina; and other previous locations [in the United States of America (USA)]." "He is listed as the managing director of Hyperion Security Services LLC since April 2008, and the business address was the same as Davis' home in Arizona." "Its online business profile says Hyperion is engaged in "detective, guard and armored car services" and employs two people." "A spokesperson for the U.S. State Department refused to confirm the man's identity, but said the U.S. government is currently trying to bring the man [Raymond Allen Davis] home."

rehan | 13 years ago | Reply @Kamran.Your last sentence sums it up all!!

Kamran | 13 years ago | Reply Where is our national pride, if there was any left? A foreigner comes and kills our nationals and simply walks away. It has been mentioned several times that this american was not issued with a diplomatic card / visa, it simply qualifies him to be tried for the crime. Even if he did possess one, he should still face the toughest possible consequences as no one has the right to take human lives. We have shed enough blood in the troubled areas of KP to appease the americans. It is time we gather some courage and have some self respect, honor, and dignity and tell the americans that we dont need your favors and instead you come and thank us for the favors that we have done for you during the last fifty years and thank us that its because of our nation's sacrifices that today they exist in the world's map. The american arrogance in stating that the mentioned american killer of "innocent or guilty" Pakistanis need to be settled bilaterally is in no circumstances justifiable. The courts are very much independent here in our country, and we should let them decide on who is right and who is wrong in this particular case. Mr Davis, if found guilty, should be hanged to death and incase he is innocent then he should be allowed to go with full honor. But the question is, if the boys killed by Mr Davis were sons of our President and the Prime Minister, what would have been the govt's response?

IamConcerned | 13 years ago | Reply Even media is playing its part to confuse people on behest of US embassy.What seemed a straight forward case is "made to look" a complex one, to create doubts and put law in culprits favor... I wonder how will this help US win "hearts & minds" of Pakistani people.

Afridi | 13 years ago | Reply World legal systems and laws are the products of human efforts and they have been enforced and evaded by the powerful...though its a legal question, but we Pakistani need not to be in day dreams, it is a real world with a real face and facts, and that revolve around the Power of America (especially in Pakistan case), there may not be any perception of absolute immunity but there is a concept of absolute impunity, and here it is for the American. Gradual changes and improvement is the strategy of the elites to deceive the credulous poor Pakistanis. Only an abrupt change more abrupt then the Egyptian is the sole solution of this country, or otherwise we would be going down in the abyss of this merciless and pathetic inhuman conditions.

rehan | 13 years ago | Reply Another "KHICCHRI" in the making!

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