However, those treaties that appointed
in 1961 at the Vienna
convention inflicted controversy among people in the world as there are so many
case that happened later, resulting such injustice in the sight of common
people mostly. One of the case is that about Raymond Davis who identified himself as a diplomat, shot and killed
two Pakistani civilians on a busy road in Lahore while the third person got killed when a separate car rushed to
rescue Davis. That car couldn’t be intercepted, however, after the shooting
people held Davis when he tried to escape. Initially,
the media reports dubbed Raymond Davis as a diplomat, than he was called a
consular employee and later some of the reports claimed he was a plain civilian
visiting on a business visa. The US Department of State didn’t divulge much
either. When on the day of incident the Assistant Secretary of State, Philip J.
Crowley, was asked about
the incident, he refused to share much information about the
identity except that he called him an employee at the U.S. Consulate in Lahore.
After
initial investigation by the Lahore police, Davis was remanded for six
days in police custody. This development triggered the debate that whether Davis had the diplomatic
immunity as expounded in the Vienna Convention on Diplomatic Relations. It is a
multilateral treaty that governs the principles of diplomatic relations between
the independent countries. According to various news reports it is confirmed
that Davis
doesn’t fall in the category of a diplomat. Generally, diplomats and their families
enjoy blanket immunity from the criminal and civil jurisdiction of the host
country under the Vienna Convention on Diplomatic Relations.
Davis was said to be a
member of the consular staff, if so, than there is a separate multilateral
treaty called the Vienna Convention on the Consular Relations which deals with
the consular relations between the countries. Unlike Vienna Convention on
Diplomatic Relations the Convention on Consular Relations doesn’t provide
complete immunity to consular. The consular immunity under the Convention is
limited to the course of his duty only. Many claimed that at the time of
shooting Davis
wasn’t exercising any consular function. Several courts in the US have interpreted the
scope of ‘consular function’ quite broadly as it is a very fact based term.
In one of the well known
cases, Commonwealth v. Jerez, the US court held that a consular
officer charged with assault and battery of a police officer was immune under
the Consular Convention because at the time of the act the consular officer was
going from mission to attend a cultural function hence he was performing a
‘consular function’.
It is true that diplomats are exempt from the criminal,
civil and administrative jurisdiction of the host country. However, this exemption
may be waived by their home country. Moreover, the immunity of a diplomat from
the jurisdiction of the host country does not exempt him/her from the
jurisdiction of his/her home country.
It is also within the discretion of the
host country to declare any member of the diplomatic staff of a mission persona
non grata (or unwanted person). This may be done at any time and there is no
obligation to explain such a decision. In these situations, the home country,
as a rule, would recall the person or terminate his/her function with the
mission.
The Vienna Convention provides for
specific measures that can be taken by both the home and host countries in
cases of misuse or abuse of diplomatic privileges and immunities. On the whole,
diplomatic privileges and immunities have served as efficient tools
facilitating relations between States. No UN Member State has so far proposed
rescinding the Convention or re-writing its provisions. Diplomatic privileges
and immunities guarantee that diplomatic agents or members of their immediate
family:
·
May not be arrested or detained
·
May not have their residences entered and searched
·
May not be subpoenaed as witnesses
·
May not be prosecuted
And for more
detail we will discuss it in the next chapter.
A. Diplomatic Immunity defined and history
Diplomatic immunity is
a principle of international law by which certain foreign government officials
are not subject to the jurisdiction of local courts and other authorities. The
concept of immunity began with ancient tribes. In order to exchange
information, messengers were allowed to travel from tribe to tribe without fear
of harm. They were protected even when they brought bad news. Today, immunity
protects the channels of diplomatic communication by exempting diplomats from
local jurisdiction so that they can perform their duties with freedom,
independence, and security. Diplomatic immunity is not meant to benefit
individuals personally; it is meant to ensure that foreign officials can do
their jobs. Under the concept of reciprocity, diplomats assigned to any country
in the world benefit equally from diplomatic immunity.
It is a form
of legal immunity and a policy held between governments that ensures that diplomats are
given safe passage and are considered not susceptible to lawsuit or prosecution under
the host country's laws (although they can be expelled).
It was agreed as international law in the Vienna Convention on Diplomatic
Relations (1961), though the concept and custom have a much
longer history. Many principles of diplomatic immunity are now considered to
be customary law. Diplomatic immunity as an institution developed
to allow for the maintenance of government relations, including during periods
of difficulties and even armed
conflict. When receiving diplomats, who formally represent the
sovereign, the receiving head of state grants certain privileges and immunities
to ensure they may effectively carry out their duties, on the understanding
that these are provided on a reciprocal basis.
Originally, these privileges and
immunities were granted on a bilateral, ad hoc basis,
which led to misunderstandings and conflict, pressure on weaker states, and an
inability for other states to judge which party was at fault. Various
international agreements known as the Vienna Conventions codified
the rules and agreements, providing standards and privileges to all states.
It is possible for the official's home
country to waive immunity, this tends to happen only when the individual has
committed a serious crime,
unconnected with their diplomatic role (as opposed to, say, allegations
of spying),
or has witnessed such a crime. Alternatively, the home country may prosecute
the individual. Many countries refuse to waive immunity as a matter of course;
individuals have no authority to waive their own immunity (except perhaps in
cases of defection).
The Vienna Convention
on Diplomatic Relations of 1961 and theVienna Convention
on Consular Relations of 1963 codified most modern diplomatic
and consular practices, including diplomatic immunity. More than 160 nations
are parties to these treaties. The conventions provide immunity to persons
according to their rank in a diplomatic mission or consular post and according
to the need for immunity in performing their duties. For example, diplomatic
agents and members of their immediate families are immune from all criminal
prosecution and most civil law suits. Administrative and technical staff
members of embassies have a lower level of immunity. Consular officers serving
in consulates throughout the country have an even lower level of immunity.
Members of an embassy's service staff and consular employees are immune only
for acts performed as part of their official duties.
ORIGIN
The principle of diplomatic immunity is
one of the oldest elements of foreign relations. Ancient Greek and Roman
governments, for example, accorded special status to envoys, and the basic
concept has evolved and endured until the present. As a matter of international
law, diplomatic immunity was primarily based on custom and international
practice until quite recently. In the period since World War II, a number of
international conventions (most noteworthy, the Vienna Convention on Diplomatic
Relations and the Vienna Convention on Consular Relations) have been concluded.
These conventions have formalized the customary rules and made their
application more uniform.
In ancient
times, accordingly to Islam in history. a messenger should not be harmed, even
if coming from an arch-enemy and bearing a highly provocative or offensive
message. A hadith attributes this sunnah to the time when Musaylimah sent to
the Prophet Muhammad messengers who proclaimed Musaylimah be a Prophet of Allah
and the co-equal of Muhammad himself.
As diplomats by definition enter the
country under safe-conduct, violating them is normally viewed as a great breach
of honor, although there have been a number of cases where diplomats have been
killed. Genghis Khan and the Mongols were well-known for strongly insisting on
the rights of diplomats, and they would often take terrifying vengeance against
any state that violated these rights. The Mongols would often raze entire
cities to the ground in retaliation for the execution of their ambassadors,
and invaded and destroyed the Khwarezmid Empire after
their ambassadors had been mistreated.
Furthermore, in the seventeenth century European diplomats realized that protection from
prosecution was essential to doing their jobs and a set of rules evolved
guaranteeing the rights of diplomats. These were still confined to Western Europe, and were closely tied to the
prerogatives of nobility. Thus an emissary to the Ottoman Empire could expect to be arrested and
imprisoned upon the outbreak of hostilities between their state and the empire.
The French Revolution also disrupted this system as the revolutionary state and
Napoleon imprisoned a number of diplomats accused of working against France. More recently, the Iran hostage crisis is universally
considered a violation of diplomatic immunity (although the hostage takers did
not officially represent the state, host countries have an obligation to
protect diplomatic property and personnel). On the other hand, in the Second World War,
diplomatic immunity was upheld and the embassies of the belligerents evacuated
through neutral countries.
In the nineteenth century, the
Congress of Vienna system reasserted the rights of diplomats, and they have
been largely respected since then as the European model has spread throughout
the world. Currently, diplomatic immunity, as well as diplomatic relations as a
whole, are governed internationally by the Vienna Convention on Diplomatic
Relations, which has been ratified by almost every country in the world.
In modern times, diplomatic immunity
continues to provide a means, albeit imperfect, to safeguard diplomatic
personnel from any animosity that might arise between nations. As one article
put it: "So why do we agree to a system in which we're dependent on a
foreign country's whim before we can prosecute a criminal inside our own
borders? The practical answer is: because we depend on other countries to honor
our own diplomats' immunity just as scrupulously as we honor theirs.
B. Categories of Persons Entitled to Privileges and
Immunities
Members of Diplomatic Missions
Diplomatic missions are traditionally
the principal communication link between the country that sends them and the
host country. Accordingly, the staffs of diplomatic missions (embassies) are
afforded the highest level of privileges and immunities in the host country in
order that they may effectively perform their important duties. Under modern
international law (reflected in the Vienna Convention on Diplomatic Relations),
however, there are different categories of persons within each diplomatic
mission, some of whom enjoy greater immunities than others. The categories of
diplomatic mission personnel are defined primarily with reference to the
functions performed. Diplomatic agent is the term for ambassadors and the other
diplomatic officers who generally have the function of dealing directly with
host country officials. This category enjoys the highest degree of immunity.
The next category is “members of the administrative and technical staff ” of
the mission, which includes those persons who support the activities of
diplomatic agents. This category includes secretaries, certain clerical
personnel, office managers, and certain professional security personnel.
Members of the administrative and technical staff enjoy privileges and immunities
which in some respects are less than diplomatic agents. Finally, there are the
“members of the service staff ” of the diplomatic mission who perform tasks
such as driving, cleaning, and/or grounds maintenance. These persons are
afforded significantly less in the way of privileges and immunities. The
privileges and immunities of each of these groups is explained in more detail
below, and a table is provided to summarize the privileges and immunities of
greatest interest to law enforcement personnel. Also provided is an explanation
of important exceptions to the general rules. (A discussion of tax and customs
duty exemptions and other privileges not of immediate concern to law
enforcement and judicial authorities is not included in this booklet.)
Diplomatic Agents.
Diplomatic agents enjoy the highest degree of privileges and immunities. They
enjoy complete personal inviolability, which means that they may not be
handcuffed (except in extraordinary circumstances), arrested, or detained; and
neither their property (including vehicles) nor residences may be entered or
searched. Diplomatic agents also enjoy complete immunity from the criminal
jurisdiction of the host country’s courts and thus cannot be prosecuted no
matter how serious the offense unless their immunity is waived by the sending
state (see discussion below). While it is not ordinarily of concern to police
authorities, they also have immunity from civil suit except in four very
limited circumstances: (a) in connection with real property transactions not
conducted on behalf of the mission; (b) in connection with any role they may
play as executor for or heir to an estate being distributed in the host
country; (c) in connection with the performance of professional or commercial
activities outside the scope of their official duties; or (d) in respect of
counterclaims on the same subject matter when they have been the initiating
party in a suit. Finally, they enjoy complete immunity from the obligation to
provide evidence as witnesses and cannot be required to testify even, for
example, if they have been the victim of a crime. Family members forming part
of the household of diplomatic agents enjoy precisely the same privileges and immunities
as do the sponsoring diplomatic agents.
Members of
Administrative and Technical Staff. Members of the
administrative and technical staff of a diplomatic mission perform tasks critical
to the inner workings of the embassy. Accordingly, they enjoy privileges and
immunities identical to those of diplomatic agents in respect of personal
inviolability, immunity from criminal jurisdiction, and immunity from the
obligation to provide evidence as witnesses. Their immunity from civil
jurisdiction, however,
is quite different.
Members of the administrative and technical staff enjoy immunity from civil
jurisdiction only in connection with the performance of their official duties.
This is commonly known as official acts or functional immunity and is explained
in more detail in the section below addressing consular privileges and
immunities. Like those of diplomatic agents, the recognized family members of
administrative and technical staff enjoy the same privileges and immunities
from the host country’s criminal jurisdiction as their sponsors. Since these
family members have no official duties to perform, they enjoy no immunity from
civil jurisdiction.
Members of Service
Staff. Members of the service staff of diplomatic
missions perform less critical support tasks for the missions and are accorded
much less in the way of privileges and immunities than are those in the other categories.
Service staff members have official acts immunity only (see further explanation
below) and they enjoy no personal inviolability, no inviolability of property,
and no immunity from the obligation to provide evidence as witnesses. The
families of service staff members enjoy no privileges or immunities.
Nationals or Permanent
Residents of the United States.
The general rules set forth above assume that the staff members of the
diplomatic mission are nationals of the sending country or some third country.
The United States, as a matter of policy, does not normally accept as
diplomatic agents its own nationals, legal permanent residents of the United
States, or others who are “permanently resident in” the United States.4 The
family members of diplomatic agents enjoy no privileges or immunities if they
are nationals of the United States. Members of the administrative and technical
staff (including their families) and members of the service staff enjoy no
privileges and immunities if they are U.S. nationals,
legal permanent residents, or foreign nationals “permanently resident in” the United States.
Police officers should not have to deal with this distinction since the U.S.
Department of State issues identification cards (see further discussion below)
with the nationality principle in mind. However, it is important for law enforcement
officials to understand these principles generally, because they could confront
a situation wherein a U.S. citizen spouse
of a foreign national diplomatic agent (who lacks the correct identity
documents) attempts to establish his or her immunity solely on the basis of
proving a relationship with the diplomatic agent.
Special Bilateral
Agreements. There are some countries with which the United States
has concluded bilateral agreements which grant to all members of the staff of
their respective embassies (provided that they are nationals of the sending
country) the privileges and immunities to which only diplomatic agents are
normally entitled. Identification cards will reflect this status but police
officers should be aware of this distinction because they may have to confront
situations where a chauffeur or mechanic from the embassy of one of these
countries asserts a right to full diplomatic privileges and immunities.
Temporary Duty.
Persons sent to the United States
on short-term official duty with diplomatic missions ordinarily do not enjoy
any privileges and immunities (law enforcement authorities should nonetheless
always seek prompt verification from the U.S. Department of State in particular
cases involving such individuals).
Waiver.
Always keep in mind that privileges and immunities are extended from one
country to another in order to permit their respective representatives to
perform their duties effectively; in a sense, it may be said the sending countries
“own” these privileges and immunities. Therefore, while the individual enjoying
such immunities may not waive them, the sending states can, and do. Police
authorities should never address the alleged commission of a crime by a person
enjoying full criminal immunity with the belief that there is no possibility
that a prosecution could result. The U.S. Department of State requests waivers
of immunity in every case where the prosecutor advises that, but for the
immunity, charges would be pursued. In serious cases, if a waiver is refused,
the offender will be expelled from the United States
and the U.S. Department of State will request that a warrant be issued and
appropriate entries to the National Crime Information Center (NCIC) database be
made by the responsible jurisdiction. The seeking of waiver of immunity is
handled entirely via diplomatic channels, but effective and informed police
work becomes the basis of the prosecutor’s decision and the foundation for the
U.S. Department of State’s waiver requests and any subsequent prosecutions or
expulsions.
C. The Case of Raymond Davis: The International
Law Perspective
On
January 27th an American national Raymond Davis, who identified
himself as a diplomat, shot and killed two
Pakistani civilians on a busy road in Lahore while the third
person got killed when a separate car rushed to rescue Davis. That car couldn’t
be intercepted, however, after the shooting people held Davis when he tried to escape.
Initially,
the media reports dubbed Raymond Davis as a diplomat, than he was called a
consular employee and later some of the reports claimed he was a plain civilian
visiting on a business visa. The US Department of State didn’t divulge much
either. When on the day of incident the Assistant Secretary of State, Philip J.
Crowley, was asked about
the incident, he refused to share much information about the
identity except that he called him an employee at the U.S. Consulate in Lahore.
After
initial investigation by the Lahore police, Davis was remanded for six days in police
custody. This development triggered the debate that whether Davis had the diplomatic immunity as expounded
in the Vienna Convention on Diplomatic Relations. It is a multilateral treaty
that governs the principles of diplomatic relations between the independent
countries. According to various news reports it is confirmed that Davis doesn’t fall in the category of a
diplomat. Generally, diplomats and their families enjoy blanket immunity from
the criminal and civil jurisdiction of the host country under the Vienna
Convention on Diplomatic Relations.
Davis was said to be a member of the consular
staff, if so, than there is a separate multilateral treaty called the Vienna
Convention on the Consular Relations which deals with the consular relations
between the countries. Unlike Vienna Convention on Diplomatic Relations the
Convention on Consular Relations doesn’t provide complete immunity to consular.
The consular immunity under the Convention is limited to the course of his duty
only. Many claimed that at the time of shooting Davis wasn’t exercising any consular function.
Several courts in the US have interpreted the scope of ‘consular
function’ quite broadly as it is a very fact based term.
In
one of the well known cases, Commonwealth v. Jerez, the US
court held that a consular officer charged with assault and battery of a police
officer was immune under the Consular Convention because at the time of the act
the consular officer was going from mission to attend a cultural function hence
he was performing a ‘consular function’. It is yet to be determined that
whether Davis was actually performing the ‘consular function’ at the time of the
crime or was on a private business.
About
consular immunity from criminal jurisdiction Article 41 Section 1 of the Vienna Convention on the Consular Relations
states that: ‘Consular officer shall not be liable to arrest or detention
pending trial, except in the case of a grave crime…’ ‘Grave crime’ again is an
expansive term. Although any
reasonable person can conclude that there is nothing graver than taking
someone’s life but there are certain exceptions such as self defense which Davis claimed. The Pakistan Penal Code sections
96-106 deals with the issue of self defense. Section 100 mentions cases in
which the right of self defense resulting in death can be exercised:
‘The
right of private defense of the body extends, to the voluntary causing of death
or of any other harm to the assailant, if the offence which occasions the
exercise of the right be of any of the descriptions hereinafter enumerated,
namely:-
First:
|
Such an assault as may reasonably cause the
apprehension that death will otherwise be the consequence of such assault;
|
Secondly:
|
Such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of such
assault…’
|
Under
Section 100 Davis can have a plausible claim that he acted in sheer self
defense because the armed men tried to rob him. However, there are still
certain factual questions that remained unanswered as to why a consular officer
was carrying a gun. Diplomat is allowed to carry a gun only when the host
country exclusively allow. The other question raising issue is that why Davis’ identity or his job status wasn’t
released earlier. According to the latest press release the U.S. claimed that Davis had the diplomatic status hence he was
immune from the local jurisdiction.
The
local media, on the other hand, is throwing its own conspiracy theories from
time to time since the facts about Davis’ real status are quite murky. It is,
however, apt to note that the concept of ‘diplomatic crime’ isn’t new. Several
diplomatic officials in the US have committed serious crimes (including
killings) but they get away under the cover of diplomatic immunity. If the US claims a diplomatic status for Raymond
Davis, bound by the rules of Vienna Convention on Diplomatic Relations, Pakistan will have to release him. In such a case,
the most Pakistan can do is to declare Raymond Davis persona
non grata under Article 9 of the Convention. This means that
as a ‘diplomat’ Davis would no longer be welcome in Pakistan, and the US government would be expected to recall
him and cancel his mission.
Conclusion:
Diplomatic
immunity is a form of legal immunity and a policy held
between governments that ensures that diplomats
are given safe passage and are considered not susceptible to lawsuit or prosecution
under the host country's laws (although they can be expelled).
It was agreed as international
law in the Vienna
Convention on Diplomatic Relations (1961), though the concept and
custom have a much longer history. Many principles of diplomatic immunity are
now considered to be customary law. Diplomatic immunity as an
institution developed to allow for the maintenance of government relations,
including during periods of difficulties and even armed conflict. When
receiving diplomats—who formally represent the sovereign—the receiving head of
state grants certain privileges and immunities to ensure they may effectively
carry out their duties, on the understanding that these are provided on a reciprocal
basis.
Originally, these privileges and
immunities were granted on a bilateral, ad hoc basis, which led to
misunderstandings and conflict, pressure on weaker states, and an inability for
other states to judge which party was at fault. Various international
agreements known as the Vienna Conventions
codified the rules and agreements, providing standards and privileges to all
states.
It
is possible for the official's home country to waive immunity; this tends to
happen only when the individual has committed a serious crime, unconnected with
their diplomatic role (as opposed to, say, allegations of spying),
or has witnessed such a crime. Alternatively, the home country may prosecute
the individual. Many countries refuse to waive immunity as a matter of course;
individuals have no authority to waive their own immunity (except perhaps in
cases of defection).
Critically,
from the discussion above there come certain questions in mind that
· whether diplomatic immunity gives a diplomat
freedom to commit a crime or there are certain conditions that allow them to
break the law?
· If not so, then what are the scope of diplomatic
immunity it self?
· What is the
diplomatic immunity defined in practice?
· To whom its extend?
· And why it is made?
The answers to these raised questions are;
The immunity given to the diplomats is to perform their
assigned duties and not to give freedom to commit crimes but in fact it is for
the better performance of their assigned tasks freely in the host countries.
Also it doesn’t mean that they have given
permission to break laws in certain conditions but in fact it has stated in the
Vienna Convention 1961 that although they are immune from the laws of host
country but they should respect the local laws and don’t violate them.