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February 16, 2011

Raymond Davis and the Vienna Conventions

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February 16, 2011

Shah Mahmood Qureshi’s recent statement that Raymond Davis does not enjoy diplomatic immunity may have surprised some of those ‘experts’ who have been quoting the Vienna Convention to tell us that there was simply option for Pakistan but to ‘hand over’ Davis to the United States.
His statement also suggests that these so-called experts might have got it wrong after all, particularly because there are in fact two separate Vienna Conventions that deal with the issue. While these conventions provide certain privileges and immunities, at the same time, they also place certain responsibilities on the way diplomatic and consular staff are expected to conduct themselves in their host countries. For some reason, the focus of the entire debate on this issue has been only on the immunities and privileges and we seem to have been overlooking the other side of the coin.
As a student of international law I am aware that the spirit in which the Vienna Conventions were framed and adopted was to promote friendly relations between member states in addition to providing a code of conduct for the members of consular and diplomatic staff to act in a responsible manner.
It would be ludicrous to suggest that the Vienna Convention was aimed only at granting some sort of a license to diplomats or consular staff to commit crimes in their host countries.
This spirit has been quite explicitly articulated in the preamble of the Vienna Convention 1961, and I quote: “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.”
It also states that the Convention is aimed at contributing towards “development of friendly relations among nations.” This view is further substantiated through Article 41, which states that “it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving

So, my question would be that if a diplomat or consular officer is found carrying weapons (in violation of the host country’s law) would it not bring him or her in breach of Article 41 of the Vienna Convention 1961? This article clearly requires diplomats to respect the laws and regulations of the receiving state, and it would be contrary to the spirit of the Vienna Conventions to seek immunity for a consular officer who not only carries lethal weapons but will also use them to kill citizens of the host state.
Article 42 places certain additional conditions on the diplomats when it states that “a diplomatic agent shall not engage in any professional or commercial activity.” In other words a diplomat or consular officer is mandated only to carry out his “official duties as a diplomat.” These duties are defined in Article 3 of the same Convention as being aimed at “promoting friendly relations”. No reasonable diplomat or consular officer can argue that he needs to carry weapons or kill citizens of the host state to carry out his diplomatic or consular duties. Therefore, any such activity that requires him to do this, would certainly go beyond his agreed mandate and consequently bring him breach of Article 42 as well.
We must also recognize the distinction between a “Diplomat” and a “Consular Officer” as there are two separate Vienna Conventions that deal with each category. (a) The Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. In simple terms, the staff associated with an Embassy of a state situated in a capital of the host country would be referred to as a “Diplomat” under the 1961 Convention, whereas those associated with the Consulate Generals in different cities of the same state would be “Consular Officers”, covered under the 1963 Convention.
This brings us to the main and perhaps the most relevant question in this issue. Does a “consular officer” associated with a Consulate General of a state situated a city like Lahore (or Karachi) enjoy “Diplomatic” immunity? The answer would have to be ‘No’, because such officers would fall under the scope of the Vienna Convention on Consular Relations 1963. Article 41 of this Convention does not offer immunity on “grave offences”.
It states clearly that: “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.” I don’t think anyone can dispute that a double murder is perhaps the most gravest of all crimes.
However, despite all that, some observers argue that the matter may have already reached a point, which is beyond mere legal technicalities, as there is considerable public outrage surrounding the Lahore incident and any unpopular decision by the government may spell trouble for its own survival. Ordinary Pakistanis see Davis as someone who has not only breached local laws but has committed the gravest of all crimes by shooting two Pakistanis in broad daylight. It now remains to be seen whether Davis will end up facing trial in Pakistan, or would the government ultimately succumb to mounting US pressure.
All of this has happened at a volatile time when the Middle East is already facing a wave of popular uprisings that have forced US-backed governments to collapse. At this juncture foreign minister’s decision to relinquish his ministerial position is quite interesting. Apparently he seems to have chosen to side with public sentiment on the issue but the question is why has he chosen to make such statements only after it became clear to him that he is not being offered the Foreign Ministry in the cabinet re-shuffle? The response by the new Minister for Information, Dr Firdous Ashiq, has already suggested that there might be more than what meets the eye, but I think it might not be a good idea to play politics on such a sensitive issue which seems to be putting a lot of strain on Pakistan-US relations already.
The writer is noted media personality, Executive Director of the World Forum, and a former Ambassador. He can be contacted on [email protected]

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