DIPLOMATIC IMMUNITY

DIPLOMATIC IMMUNITY

and its implementation in Pakistan 
(included case of Raymond Davis)

By : Firman Arifandi & Fahad Abid

Introduction
        The case of Raymond Davis that arises newly, resulted condemnation from many of people in Pakistan. Moreover, those who are idolizing socialism. Practically, in fact that if some one is having a background as a diplomat in other country he is then, powered by diplomatic immunity that save them from any suit and not subject to the jurisdiction of local courts and other authorities.

        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 27^th 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.