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Immunity or impunity?


April 11, 2018

Edmund Burke quite rightly noted: “the greater the power, the more dangerous the abuse”. The concept of diplomatic immunity is the most widely accepted rule of international law. That is not to say that its application is uncontroversial. In fact, abuses of diplomatic privileges have culminated in inter-state tensions as well as attacks on the very concept of absolute immunity itself.

Such tensions and critique surfaced just recently in the aftermath of the death of a 22-year-old boy, Ateeq Baig, at the hands of Colonel Joseph Hall, defence and air attaché at the US Embassy in Islamabad, who had been recklessly driving. The offence itself is a crime in all jurisdictions across the globe, including the jurisdiction of the US to which Hall belongs. It sounds almost barbaric to have to accept that we live in a world where such brazen disrespect of host state laws by diplomats is allowed to go unchecked without any consequences even when a young boy is killed.

In principle, under the Vienna Convention on Diplomatic Relations 1961 (VCDR), diplomats are not permitted to flout local laws. In addition to the convention, there is jurisprudence to this effect, namely the case of Dickinson v Del Solar in which it was clearly stated that diplomatic privilege does not import immunity from liability but merely exemption from local jurisdiction. The question that then arises is: will there be liability for this violation of Pakistani law?

There are a few points to be highlighted here. First, the incident calls for some serious reflection on our part as a society on how we allow our laws and regulations to be perceived internally and externally. Islamabad is no stranger to deaths resulting from such reckless driving: people are killed, property is damaged and the perpetrators of these crimes are let off with a light tap on the wrist. When we ourselves have no respect for our laws, do we sincerely believe that foreigners will come to our country and respect the very laws we so proudly flout?

Second, there is also a level of introspection required on the part of our Foreign Office and government in general. Following the incident, Dr Mohammad Faisal, spokesperson for the Ministry of Foreign Affairs (MOFA) tweeted: “Foreign Ministry closely following investigation into the road accident involving a US diplomat which led to the tragic death of a Pakistani citizen in Islamabad”. In a similar vein, Minister for Interior Ahsan Iqbal posted in a tweet: “Very tragic road accident involving US diplomat in which visibly traffic law was violated resulting in the death of a Pakistani citizen”. Both statements managed only to term such brazen violation of our laws and the death of our citizens as “tragic”.

What action do we expect from the Foreign Office when it is largely ill-equipped to deal with problems of this nature? What should have immediately followed was a press briefing by the spokesperson for MOFA, highlighting the routes Pakistan intends to pursue to deal with the commission of this offence on its territory. That brings us to the third point of observation: the legal and diplomatic options available to Pakistan in this case.

Pakistan is entitled to request the US to waive Hall’s immunity. Whether such a request for waiver of immunity is accepted or not by the US is a secondary point of discussion. As a diplomatic move, this one is a strong signal to the US that it must face international embarrassment for the actions of its diplomats who are unaware of how to behave when sent abroad. While the US would be well within its rights to refuse such immunity, we, as a state, cannot at least on a political level allow such violations of our law to not be dealt with in the most serious of ways. There is of course also the option of Pakistan declaring Hall persona non grata under Article 9 of the VCDR, which would indicate that he is no longer welcome within our territory.

There have been instances in the past where diplomats have been prosecuted within the receiving state for serious crimes they have committed, following a waiver of immunity by the sending state. Such was the case in 1997 when the second-highest ranking diplomat of Georgia to the US, Makharadze, who was driving under the influence, got into an accident in which a 16-year-old girl lost her life in Washington DC. The US government had requested the Georgian government to waive Makharadze’s immunity – a request with which Georgia complied – resulting in Makharadze being convicted of manslaughter and sentenced to 21 years in prison. Other cases have also arisen where diplomats engaged in drug smuggling have been prosecuted in receiving states after the sending states have waived their immunity.

Alternatively still, the Pakistani government can pressure the US to prosecute Hall under American law. After all, the US has jurisdiction over the conduct of its citizens and, considering the offence of manslaughter exists within US law, if the US refuses to waive Hall’s immunity, they could prosecute him themselves.

But the question that lies at the heart of pursuing any of these options is: will immunity be allowed to mean impunity when our laws are trampled upon and our people treated with such contempt? If we cannot respect ourselves, do we expect the world to respect us?

The writer is a lawyer.

Email: [email protected]

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