Diplomatic immunity for criminal offences

The case can become a major foreign policy issue that can mar the relationship between Pakistan and the US.

Raymond Davis, a United States national, killed two Pakistanis in Lahore on January 27, 2011, allegedly in self-defence. According to the BBC: “An American official in the Pakistani city of Lahore has shot and killed a Pakistani motorcycle rider and his pillion passenger, police say. They say that the consular employee fired his pistol in self-defence. US embassy officials confirmed that an American was involved. The men were pursuing the American in his car when the incident happened. A pedestrian was also killed by a speeding car from the US consulate which came to help, police say.” Davis has been charged with murder by the Pakistani police and has been incarcerated in a local jail. He is presently facing trial in a criminal court in Pakistan. The incident has sparked anti-American sentiments in Pakistan and become an issue of public interest that is constantly being discussed and debated in political circles and in the media.

The resolution of the issue has been compounded by recent media reports that Raymond Davis is a CIA agent who was on assignment at the time of the double murder. However, this would not matter if he has diplomatic status, since spying by a diplomatic agent is one of the criminal offences covered by diplomatic immunity. According to established practice, the diplomat may, when apprehended, be transferred by the sending state, or if not, he is likely to be declared persona non grata by the receiving state.

The Raymond Davis case has the potential of becoming a major foreign policy issue that can mar the budding relationship between Pakistan and the US. The US has actively sought the release of Raymond Davis on the pretext that he has diplomatic immunity. While keeping tight-lipped about its position on the question of immunity, Pakistan appears to be exploring an alternative dispute settlement mechanism to resolve this diplomatically sensitive and politically explosive matter. For example, Prime Minister Gilani has suggested that the whole thing could be resolved under Shariah law if compensation is offered to the families of the victims killed in the shooting by Davis.

However, there is no guarantee that the compensatory scheme to resolve this matter privately will produce the intended result, given the public interest that has been generated in this matter. Any such outcome would not be accepted by the Pakistani public unless a host of issues — both factual and legal — about Raymond Davis’ official status and immunity are determined properly and made known publicly.

The legal principles regarding diplomatic and consular immunities and privileges are legally well established. Under the Vienna Convention on Consular Relations 1963, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction and are immune from local jurisdiction only in cases directly relating to consular functions. They may be tried for certain local crimes upon action by a local court.

The Vienna Convention on Diplomatic Relations 1961 provides the terms under which a diplomat may be subject to criminal penalty. Article 31 of the Convention exempts diplomatic agents from the criminal jurisdictions of host states. This article clearly states that while diplomatic immunity privileges may exist in a host state, these privileges do not exempt the diplomatic agent from the jurisdiction of local laws and courts. These privileges are not absolute either. For example, Article 32 provides that the sending state may waive all diplomatic immunity privileges enjoyed by the diplomatic agent.

While giving effect to the applicable treaties on diplomatic and consular immunities, the Pakistani law in respect thereof — the Diplomatic and Consular Privileges Act, 1972 — clearly lays down the principle of reciprocal treatment of diplomatic and consular officers and employees in Pakistan.  Pakistan would consequently be well within its rights to rely on US policy and legal practice and procedure regarding the treatment of Pakistani diplomats and consular officers and employees in the US in case of criminal offences committed by them. The US has elaborate policies and procedures in place regarding the grant of diplomatic or consular immunity for criminal offences. These policies and procedures establish a formal legal and judicial process that can be emulated and applied by Pakistan on the basis of the principle of reciprocity laid down in its domestic law.

If nothing else, Pakistan can at least prevail on the US on the basis of its established legal practice and procedure to show the requisite patience and respect for Pakistan’s legal and judicial process in determining Raymond Davis’ diplomatic or consular status and granting immunity accordingly. Contrary to the assertion made by the US that this is not a matter that should be resolved by courts in Pakistan, the courts in Pakistan, like the courts in the US, have a constitutional mandate to interpret and apply the law. The filing of the Raymond Davis case in court by the Pakistani authorities is, therefore, not only valid but also in line with the policy of the US government in dealing with diplomatic immunity cases involving criminal offences.

Even though the law is quite clear on the subject of diplomatic and consular immunity, the publically known facts regarding Raymond Davis’ alleged diplomatic status remain ambiguous. Mere assertion by the US government without verification by the Pakistani government would not be enough for the Pakistani courts to accept the plea of diplomatic immunity, particularly in view of the initial conduct of the US spokesperson regarding Raymond Davis’ identity and status.

Left on its own — in the absence of a diplomatic certificate issued by the foreign ministry — the court may be inclined to look sceptically at the contention of US authorities that Raymond Davis has diplomatic status mindful of the ambiguity raised about his identity and status by the initial statement of a US State Department spokesman in his daily press briefing in Washington, DC on the day of the incident. The spokesman’s continued evasiveness about answering questions regarding the nature of Raymond Davis’ job at the US embassy, and failure to clarify whether he was a contractor or consular employee, would give the court further cause to undertake the factual determination of his status before accepting the US government’s plea regarding diplomatic immunity.

The offer by the US to investigate this matter in line with its own practice should be welcomed by the Pakistan government. Even if the US recognises the diplomatic status of Raymond Davis and submits a certificate to this effect in court and the court grants him diplomatic immunity, Raymond Davis would still not be absolved of the offence of double murder. The proper course for Pakistan would be to approach the US embassy in Islamabad as well as the US State Department and ask them to waive this privilege in view of the gravity of the alleged offence committed by him.

Published in The Express Tribune, March 7^th, 2011.