FacebookTwitterGoogle+RedditEmail

One Rule for Foreign Consulates in the US, Another for US Consulates Abroad

President Obama, before he was a President or a Senator, was a constitutional law professor. He should know the law.

And yet in the increasingly dangerous show-down over Pakistan’s arrest and detention of Lahore consular contract “security official” Raymond Davis, who is charged with two counts of murder for theshooting deaths of two young Pakistanis on January 27, the president has grossly misstated what international law is with respect to the immunity from prosecution of diplomatic and consular officials.

As the president put it on a few days ago at a press conference,

“With respect to Davis, our diplomat in Pakistan, we’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future. If our diplomats are in another country, then they are not subject to that country’s local prosecution. We respect it with respect to diplomats who are here. We expect Pakistan, that’s a signatory should recognize Davis as a diplomat, to abide by the same convention.”

The first problem is that Davis isn’t a “diplomat.” At best he’s a consulate employee. Furthermore, whoever wrote the president his lines or gave him his background briefing sure didn’t read the Vienna Convention on Consular Relations of 1963! Nor did he or she read a document issued last August by the US State Department titled: Diplomatic and Consular Immunity; Guidance for Law Enforcement and Judicial Authorities (Dept. of State Pub. 10524)
US State Dept. has one rule on immunity for consular officials here, another for our guys overseas

The Vienna Convention on Diplomatic Relations of 1961 that the president mentions, and to which the State Department keeps referring when telling Pakistani and American journalists that Davis must be released from jail, is really not even the relevant document. Davis is not a diplomatic employee. He stated himself to police that he is”only a consultant at the Lahore Consulate”. Whether even that statement is true or not, the point is that his legal status would then be determined in accordance with the later treaty, the Vienna Convention on Consular Relations of 1963.

And as that document states, in Article 41:

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.

Murder would, of course, constitute such a “grave crime.”

Perhaps police and prosecutors in Lahore, when they arrested Davis and jailed him pending a court hearing on his legal status vis-a-vis possible immunity from prosecution for the crime of murder (and possibly also espionage, which is a charge reportedly also being considered), they were following some kind of protocol of Pakistan’s Department of Foreign Affairs–something similar to the US State Department’s legal advice to American police and judicial authorities.

Here’s what the US State Department says regarding the immunity claims of diplomatic and consular officials of foreign governments in the US:

International law, to which the United State is firmly committed, requires that law enforcement authorities of the United States extend certain privileges and immunities to members of Foreign diplomatic missions and consular posts. Most of the privileges and immunities are not absolute and law enforcement officers retain their fundamental responsibility to protect and police the orderly conduct of persons in the United States.

Ahem.

The document goes on to state:

Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions.

The State Department guidance document notes that the staff of embassies are afforded the highest level of privileges and immunities in the host country (ambassadors and their immediate subordinates, such as the charge d’affaires) have virtually total immunity from detention and prosecution. But it goes on to state that it is another thing altogether when it comes to consular officials. Here the document states:

There is a common misunderstanding that consular personnel have diplomatic status and are entitled to absolute immunity.

Hmmmm. Sounds like what Obama is suffering just such a misunderstanding.

But as the State Department tells American law enforcement personnel:

Consular officers..have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested and detained pending trial only if their offense is a felony and the arrest is made pursuant to a decision by a competent judicial authority.

The document also makes it clear that it is not up to the arrested consular official’s home country to determine whether the person is properly being held for trial:

No…diplomatic mission or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime.

Only (a) court, in the full light of all the relevant facts, determines whether the action complained of was an official act.

Clearly then, the President and the State Department are factually wrong to insist that Davis must be released from jail. Pakistani judicial authorities in Lahore are doing exactly what the police and courts in the US would do with State Department blessing if a similar incident occurred involving a foreign country’s consular employee here in America.

Raymond Davis may never face trial for the execution-style slaying of two Pakistanis, who appear not to have been robbers threatening him, as claimed by the US, but rather Pakistani intelligence agents who were tailing him, suspecting him of being a spy, but if he is released without facing a judicial hearing, or if that hearing is less than a thorough evidentiary proceeding, it will be not because of the Vienna Conventions, but because of the intense pressure, diplomatic, military and economic, being brought to bear on the Pakistani government by the US, which has dispatched Congressional representatives and senators and the Secretary of State, and now the President, to send the message: Let him go or else!

They might want to reconsider.

The president, the secretary of state and myriad government flaks and Congressional stooges like Rep. Daryl Issa and Sen. John Kerry aren’t just insulting Americans’ intelligence with this “absolute immunity” nonsense. They are insulting the Pakistani people.

At this point, if Davis is sprung because of US pressure, the anger that has led Pakistanis to take to the street by the thousands over this case, demanding that Davis face justice for his actions, could well explode in a revolution that will make Egypt’s People Power uprising a distant memory.

DAVE LINDORFF is a founding member of ThisCantBeHappening!, the new independent, collectively-owned, journalist-run, reader-backed online alternative newspaper.

 

 

 

More articles by:

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

Weekend Edition
September 21, 2018
Friday - Sunday
Paul Street
Laquan McDonald is Being Tried for His Own Racist Murder
Brad Evans
What Does It Mean to Celebrate International Peace Day?
Alexandra Isfahani-Hammond
Hurricane Florence and 9.7 Million Pigs
Nick Pemberton
With or Without Kavanaugh, The United States Is Anti-Choice
Andrew Levine
Israel’s Anti-Semitism Smear Campaign
Jim Kavanagh
“Taxpayer Money” Threatens Medicare-for-All (And Every Other Social Program)
Jonathan Cook
Palestine: The Testbed for Trump’s Plan to Tear up the Rules-Based International Order
Jeffrey St. Clair
Roaming Charges: the Chickenhawks Have Finally Come Back Home to Roost!
David Rosen
As the Capitalist World Turns: From Empire to Imperialism to Globalization?
Jonah Raskin
Green Capitalism Rears Its Head at Global Climate Action Summit
James Munson
On Climate, the Centrists are the Deplorables
Robert Hunziker
Is Paris 2015 Already Underwater?
Arshad Khan
Will Their Ever be Justice for Rohingya Muslims?
Jill Richardson
Why Women Don’t Report Sexual Assault
Dave Clennon
A Victory for Historical Accuracy and the Peace Movement: Not One Emmy for Ken Burns and “The Vietnam War”
W. T. Whitney
US Harasses Cuba Amid Mysterious Circumstances
Nathan Kalman-Lamb
Things That Make Sports Fans Uncomfortable
George Capaccio
Iran: “Snapping Back” Sanctions and the Threat of War
Kenneth Surin
Brexit is Coming, But Which Will It Be?
Louis Proyect
Moore’s “Fahrenheit 11/9”: Entertaining Film, Crappy Politics
Ramzy Baroud
Why Israel Demolishes: Khan Al-Ahmar as Representation of Greater Genocide
Ben Dangl
The Zapatistas’ Dignified Rage: Revolutionary Theories and Anticapitalist Dreams of Subcommandante Marcos
Ron Jacobs
Faith, Madness, or Death
Bill Glahn
Crime Comes Knocking
Terry Heaton
Pat Robertson’s Hurricane “Miracle”
Dave Lindorff
In Montgomery County PA, It’s Often a Jury of White People
Louis Yako
From Citizens to Customers: the Corporate Customer Service Culture in America 
William Boardman
The Shame of Dianne Feinstein, the Courage of Christine Blasey Ford 
Ernie Niemi
Logging and Climate Change: Oregon is Appalachia and Timber is Our Coal
Jessicah Pierre
Nike Says “Believe in Something,” But Can It Sacrifice Something, Too?
Paul Fitzgerald - Elizabeth Gould
Weaponized Dreams? The Curious Case of Robert Moss
Olivia Alperstein
An Environmental 9/11: the EPA’s Gutting of Methane Regulations
Ted Rall
Why Christine Ford vs. Brett Kavanaugh is a Train Wreck You Can’t Look Away From
Lauren Regan
The Day the Valves Turned: Defending the Pipeline Protesters
Ralph Nader
Questions, Questions Where are the Answers?
Binoy Kampmark
Deplatforming Germaine Greer
Raouf Halaby
It Should Not Be A He Said She Said Verdict
Robert Koehler
The Accusation That Wouldn’t Go Away
Jim Hightower
Amazon is Making Workers Tweet About How Great It is to Work There
Robby Sherwin
Rabbi, Rabbi, Where For Art Thou Rabbi?
Vern Loomis
Has Something Evil This Way Come?
Steve Baggarly
Disarm Trident Walk Ends in Georgia
Graham Peebles
Priorities of the Time: Peace
Michael Doliner
The Department of Demonization
David Yearsley
Bollocks to Brexit: the Plumber Sings
FacebookTwitterGoogle+RedditEmail