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International Law is Clear That Diplomatic Immunity is Not Absolute

Lahore, Pakistan.

You cannot open the TV, or read a paper here without more and more news about Raymond Davis and his murderous act. His killing on Jan. 27 of two young Pakistanis has created international waves, too, plunging the Pakistan-America relationship into stormy waters.

A great deal has been written about the case: Raymond Davis’s employment status, whether he is a diplomat or not, who his victims were and what led to their demise at his hands, and finally whether or not Davis can be detained and ultimately tried under the Pakistani Law.

Interestingly though, nobody in the media has made a study of the Vienna Diplomatic Coventions that discuss diplomatic immunity. The convention of 1961 gets cited routinely by the American government, which claims it grants all diplomatic workers immunity from prosecution.

But that claim overstates the case. The actual document — never actually quoted — is more nuanced.

A friend notes, “The issue is not who the two Pakistanis were. The real issue is: The US media has confirmed what the US government is denying: Davis runs a private security firm. He is a military contractor. He is registered in Colorado as the owner of a security firm.” He says the questions that should be asked are: What was his real job in Lahore/Islamabad/Peshawar? And can a diplomats carry an unlicensed gun?”

This same friend also suggests that the indentity of the two Pakistani shooting victims — according to a number of Pakistani reports, and to several in the US, including ABC News, they were working for Pakistani intelligence and were tailing Davis — is a distraction. He says the real issues are what Davis was doing here and secondly, can a so-called “technical advisor”–the term the US State Department finally settled on to describe his job — claim diplomatic immunity?

I would argue, though, that the real issue is a general ignorance concerning what diplomatic immunity is, and whether such immunity extends to all acts of any nature committed by an individual, even if that individual does qualify as a diplomat. All other questions are a distraction.

The concept of diplomatic rights was established in the mid-17th century in Europe and since then came gradually to be accepted throughout the world. These rights were formalized by the 1961 Vienna Convention on Diplomatic Relations, which protects diplomats from being persecuted or prosecuted while on a diplomatic mission.

However, if we examine the specific articles of that Vienna Convention of 1961, some interesting facts emerge.

First, Article 29 states that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving or host state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. But those, like the US State Department and Davis’s Pakistani attorney, who demand the release of Raymond Davis on this ground, have obviously neglected to read, or don’t want others to read, the related articles within the Convention which strip away any absolute blanket coverage under the guise of “diplomatic immunity” for visiting or appointed diplomats.

Article 38 of the Vienna Convention 1961 states that except where additional privileges and immunities have been specifically granted by the host State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

The above article clearly differentiates between an act carried out as part of his official duties and those done as a personal act. Any actions done personally and outside the ambit of official consular duties shall not be covered by “diplomatic immunity.”

Article 37 of the 1961 convention goes on to reinforce the above limitation on immunity by stating:

…Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.

The question then becomes not whether or not those murdered were Inter-Service Intelligence (ISI) agents, robbers or fruit sellers, but whether Davis did or did not have diplomatic immunity, but whether his fatal shooting of the two men was conducted while he was involved in performing his official duties.

If the answer to that question is no, Raymond Davis cannot claim diplomatic immunity.

The US State Department is also carefully avoiding mentioning a later treaty, the Vienna Convention on Consular Relations of 1963. That treaty, which extends and further clarifies, and where there may be a conflict, would supersede the earlier treaty, states in Section II, Article 41 in its first paragraph regarding the “Personal inviolability of consular officers”:

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

The law here would seem to be quite clear. If Davis was in Lahore on anything other than official consular business, and if he killed two people “in cold blood” as the Lahore prosecutor has stated, then legal authorities in Pakistan are absolutely within their rights under the Vienna Conventions to be holding him for trial.

If he is released before a judicial determination regarding his claim of immunity, or if he is found to be properly detained but is released anyhow before standing trial for the killings, it would be not because he has diplomatic immunity, but because of political pressure from the US. But that would be something that is outside of the realm of the law.

YASMEEN ALI is a Pakistani attorney who lives in Lahore. She offered this article, which ran originally in the Pakistan Observer and in her own blog, PakPotpourri2, exclusively to ThisCantBeHappening! for publication in the US. Check out other stories you can’t find anywhere else at www.thiscantbehappening.net

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