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The Davis incident and diplomatic immunity
S Iftikhar Murshed
Monday, February 07, 2011
From Print Edition
The writer is the publisher of
There has seldom been a drama-free moment during Pakistan’s short history. The themes have predominantly been of recurrent violence ranging from wars, civil upheavals, military coups, terrorist attacks, political assassinations, and natural disasters. Against this backdrop, the Raymond Davis affair may seem like a storm in a teacup but, if inappropriately handled, it could rapidly transform into a diplomatic tsunami.
To avert this possibility, emotions have to be set aside and replaced by a dispassionate appraisal of the incident in which a US national, Raymond Davis (or whatever his real name), shot dead two Pakistani men in central Lahore on January 27. A third citizen was crushed to death by an American Consulate vehicle that came speeding from the wrong end of a one-way street to aid Davis.
Davis has claimed that he acted in self-defense. He felt that the two men were armed and were about to attack him. If this is established, then he has not violated the law because self-defense is permissible under articles 96, 97 and 100 of the Pakistan Penal Code. The three men who were killed had not committed any crime either. The individual run over by a car was entirely innocent which the driver of the vehicle was not.
However, the eye of the potential storm is the US embassy demand that Davis be released forthwith on the ground that he has diplomatic immunity under article 29 of the Vienna Convention on Diplomatic Relations, 1961, which stipulates that: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” This immunity is also applicable under article 37 (2) of the Convention to “members of the administrative and technical staff” of a diplomatic mission.
As per article 32 of the Vienna Convention, immunity can be waived by the sending state and this “waiver must always be express.” Had this been done, the brewing crisis could have been defused. However, far from waiving his immunity, Washington has insisted that Davis is under illegal detention and has sought his immediate release.
The incident is now sub judice and further comments on legal aspects cannot be made. But this does not preclude an analysis of the concept of diplomatic immunity in terms of its origin as well as some of the instances when it has been invoked by Pakistan and other South Asian countries.
It was recognised even in ancient Greece that emissaries between city states would not be able to function unless they were accorded safe passage and protection. Centuries later, in 1709, the British Parliament enacted legislation granting diplomatic immunity to resident ambassadors but its application was confined to England. However, it was not till the Congress of Vienna in 1815 that a serious attempt was made to codify diplomatic immunities and this was further fine-tuned and broadened in its application with the adoption of the Havana Convention regarding Diplomatic Officers in 1928. Several years after the establishment of the United Nations, the draft prepared by the International Law Commission was adopted as the Vienna Convention on Diplomatic Relations on April 18, 1961 and has been ratified by 186 countries.
The privileges and immunities incorporated in the Convention are integral to modern diplomatic practice and have been availed of by all countries. Thus, last month, the Indian Embassy in Washington is reported to have made a demarche to the State Department requesting diplomatic immunity for Kamal Nath, a cabinet minister responsible for urban development. The minister had been summoned by a US Court regarding a law suit that alleged his involvement in the 1984 anti-Sikh riots. However, Kamal Nath’s lawyers have denied that he has been served any summons though he is quoted by the media as saying: “As far as I know, the US has not rejected it (the Indian Embassy demarche), at least not to my knowledge.”
In mid-January 2011, the British government requested a waiver of diplomatic immunity for Anil Verma, a senior Indian Administrative Service officer who had been appointed as Economic Minister at the Indian High Commission in London. Verma had earlier been questioned by the Scotland Yard regarding allegations that he had assaulted and inflicted corporal injuries on his wife after a heated argument on Dec 11, 2010. The British request was turned down by the Indian government which has, instead, recalled Verma to New Delhi.
Similarly, in 2004, as widely reported in the media, Pakistan also stood by its Permanent Representative in New York invoking diplomatic immunity after he had been accused of violence against a woman friend following an altercation. This was a relatively minor incident compared to the discovery of heroin in 1975 in the possession of Pakistan’s Ambassador in Spain or the recovery of 16 kilograms of high intensity explosives from Mohammad Arshad Cheema, First Secretary at the Pakistan Embassy in Kathmandu. On both occasions, diplomatic immunity was sought and granted.
An even more sensational recourse to diplomatic immunity took place in 1979 when the Burmese ambassador to Sri Lanka killed his wife as she got out of her car after visiting a member of a music band with whom she was allegedly having an affair. The next morning neighbours informed the authorities that the envoy had built a funeral pyre in his back lawn on which he had placed his wife’s body. When the police arrived, the ambassador stopped them at the gate because he said that his residence was Burmese territory. In effect, he had invoked article 22 of the Vienna Convention on Diplomatic Relations under which the premises of a diplomatic mission are inviolate. Despite the seriousness of the crime, the Sri Lankan Government was unable to proceed against the envoy who was eventually, but not immediately, recalled to his country.
The legal fiction of ex-territoriality of diplomatic premises that is conceded by the Vienna Convention on Diplomatic Relations has at times been misused, albeit on few occasions, to undermine the security of states. Under such circumstances, the receiving state would be perfectly justified in entering the residences and offices of a diplomatic mission. Thus on Feb 10, 1973, Pakistani security personnel forcibly entered the Iraqi Embassy in Islamabad where, according to reports at the time, 300 Soviet-made submachine guns and 50,000 rounds of ammunition along with a substantial amount of cash had been stockpiled for distribution amongst Baloch separatist groups.
If law is reason, free from passion, as the ancient Greeks believed, there is need to temper the inflamed emotions that the Raymond Davis incident has understandably aroused. The death of three Pakistanis is undoubtedly tragic. But a dispassionate assessment has to be made on the question of diplomatic immunity that has been claimed on Davis’ behalf by the US government. The essence of law is not in the shapeless vapours of mere abstractions. It stands on the solid ground of its letter and spirit.
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