Wednesday, February 9, 2011

Raymond Davis, Murder and Vienna Convention 1961

Photo Courtesy - Arif Ali/AFP/Getty Images

by Yasmeen Ali

You cannot open the TV, nor read a paper without more and more of news on Raymond Davis and his act, that has created international waves, promising to plunge Pakistan and America relationship in a tangle.

A great deal has been written about the case; Raymond Davis’s status; whether a diplomat or not, the act of the murdered which resulted in their demise in hands of Raymond Davis and whether or not Davis can be tried under the Pakistan Law.
Interestingly, not one has made a study of the Vienna Convention 1961 which is being much discussed in light of the case to answer the questions raised and reach a logical conclusion.
I received a mail from a friend, he says, QUOTE:
The issue is not who the two Pakistanis were. The real issue is: The US media has confirmed what the US government is denying. Davis runs a private security firm. He is a military contractor. He is registered in Colorado as the owner of a security firm. What was his job in Lahore/Isb/Pesh? And can a diplomat carry an unlicensed gun?
The indentity of the two Pakistanis is a distraction.

The real issue is the identity of Davis and what was he doing here and can a ‘technical advisor’ have diplomatic immunity?
UNQUOTE.
The real issue, as the mail above shows, is a general ignorance of what diplomatic immunity is and IF it extends to personal acts of any nature committed by an individual even WITH diplomatic immunity.
ALL other questions, I consider to be a distraction.
Diplomatic rights were established in the mid-17th century in Europe and have spread throughout the world. These rights were formalized by the 1961 Vienna Convention on Diplomatic Relations, which protects diplomats from being persecuted or prosecuted  while on a diplomatic mission.
However, if we study the Articles of Vienna Convention 1961, some interesting facts surface.
One, 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 (Article 29 of the Vienna Convention 1961). Those who support the release of Raymond Davis on this ground obviously forgot to read the related laws within the Convention that takes away an absolute blanket coverage under the guise of “diplomatic immunity” to visiting / appointing diplomats.
Two, Article 38 of the Vienna Convention 1961 sets out to state that except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
The above law clearly differentiates between an act carried out as part of his official duties and those done as a personal act. Any actions done personally and outside the ambit of official duties shall not be covered by “diplomatic immunity”.
Three, Article 37 of the Vienna Convention goes on to reinforce the above by stating “……Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.”
The question then is not whether or not those murdered were ISI agents, robbers or fruit sellers, the questions then is not whether or not Raymond Davis did or did not have diplomatic immunity- the question, my friends, is that was the act conducted as part of his official duties?
If the answer is No, Raymond Davis cannot claim diplomatic immunity.
The question that he may still be released owing to pressure from the US is a subject outside the realm of law.
Tea, anyone?
(The writer is a lawyer & university professor).
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You might also like

1.       The (Very) Strange Case of Raymond Davis 2.       Senators oppose US gunman`s release 3.       Raymond Davis Incident



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3 comments:

  1. The factual, frank and candid contents of the captioned opinion of erudite Yasmeen Ali merit vehement endorsement. As regards the diplomatic immunity issue, had Raymond Davis been genuinely entitled to it, the Americans would have got him flown out of Pakistan within the first few hours the same day.

    Most obviously, only a diplomat can be entitled to the diplomatic immunity whereas, the US Embassy in Islamabad had submitted its formal and official request to the Foreign Ministry of Pakistan for issuance of a Non-Diplomatic Identity Card to Raymond Davis, hardly a week before this tragic event. Besides this, the video footage has also been released showing Davis telling Pakistani police investigators that he is working for the US Consulate General, Lahore just as a Consultant.

    As a matter of principle, it is the prerogative of the Foreign Ministry of Pakistan to voice its authentic view regarding Raymond Davis’ entitlement to diplomatic immunity, which is now in the air vide the firm and explicit conclusion of the then incumbent Foreign Minister Shah Mehmood Qureshi.

    While considering the US State Department’s request for granting diplomatic immunity to Raymond Davis despite the fact that he is a Non-Diplomat, we must keep in our full view the following American description and definition of the diplomatic immunity:

    “Immunity is meant to let diplomats carry out their official responsibilities free from harassment or retaliation against their countries’ foreign policies. It confers no license for reckless behavior or for flouting local traffic laws.” Another relevant sentence “In serious criminal cases, the State Department has a standing policy of requesting waivers of immunity.” (http://www.nytimes.com/1997/01/11/opinion/breaking-diplomatic-convention.html)

    This means when the life of one American teen-age girl is lost, even in a fatal crash caused by reckless driving by a senior foreign envoy while he is intoxicated, he should be stripped of his diplomatic immunity, tried and sentenced to several years in prison vide The New York Times story of December 12, 1997 (http://www.nytimes.com/1997/12/20/us/envoy-is-sentenced-to-prison-in-fatal-crash.html?).

    And what this American murderer - Raymond Davis(a Non-Diplomat with dubious identity) has done, he has confessed to have cold bloodedly murdered 2 Pakistani youth, besides obliquely consuming 2 more innocent lives. Davis certainly does not deserve any leniency or mercy.

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  2. It's always nice when you can not only be informed, but also get knowledge, from these type
    of blog, nice entry. Thanks


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  3. Wrong. Immunity from "criminal" prosecution is absolute for a member of staff of the diplomatic mission (including for members of the technical and administrative staff). It is irrelevant whether he was performing his functions or if he was on a frolic of his own. As long as he is a member of the technical and administrative staff of the mission in Islamabad he cannot be arrested or prosecuted in Pakistan for the crimes. A member of staff of the mission in Islamabad can be posted to the Lahore consulate in the discretion of the mission. The author has confused immunity from criminal prosecution with immunity from civil legal proceedings. As a member of the technical and administrative staff of the mission, he would not enjoy immunity from civil legal proceedings unless he claimed it in connection with acts performed in his official functions. So the only issue that needs to be determined is whether at the time he committed these acts he was a member of the administrative and technical staff of the mission. If he was, he is entitled to immunity from criminal prosecution in Pakistan. If not, he is not.

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