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Saturday, February 5, 2011

A Brief History of Diplomatic Immunity

Since we Pakistanis often suffer simultaneously from the twin demons of megalomania and paranoia - verily we are better than everyone else and that is why everyone is out to get us - we often also look at history through a rather selective and distorted lens. Unfortunately, none typify this mindset more than the doyens and doyennes of the Pakistani electronic media, in whom a curious mix of hyper-patriotism, half-baked information, sincere ignorance and arrogant bluster seems generally to hold sway.

Take the issue of the day on Pakistani media: whether the American known by his apparent pseudonym "Raymond Davis" - who shot dead two men in Lahore - can be tried by Pakistani courts or whether the US government has any right to claim diplomatic immunity for him. I am not going to offer my own opinion on this because, for better or worse, this is an issue for the US and Pakistani states to sort out. (I should, however, point out that, personally speaking, I do not think armed Americans or armed anyone should be roaming around the streets of Pakistan.)

But having seen numerous commentaries on television where emotive claims have been made about how Americans have not respected diplomatic immunity in their own cases, how immunity does not extend to serious crimes or how Pakistani diplomats have never been extended this kind of privilege, I just want to direct readers to a few examples.

Here's The Independent reporting in 1997 about a case in which a drunk Georgian diplomat killed a 16-year-old girl in New York with his reckless driving and the US requested a waiver from immunity for him. (The paper reports that Georgia was unlikely to approve the request though it actually was approved at the discretion of the Georgian government and the diplomat was sentenced for 7-21 years. He was transferred back to Georgia after serving three years [link courtesy @qabacha].) The piece also cites other incidences of less egregious crimes by diplomats that go unpunished. Appropriately for us, the story is titled "Can A Diplomat Get Away With Murder?"

You may also recall the shooting dead of British constable Yvonne Fletcher apparently by Libyan embassy staff in London in 1984 as well as the wounding of 11 others. Diplomatic immunity allowed the staff not to be prosecuted at all, though Britain subsequently broke off diplomatic relations with Libya. Fifteen years later, Libya accepted "general responsibility" and paid compensation, though some experts continued to question whether the police officer's death was actually caused by someone shooting from within the embassy.

Coming to Pakistani diplomats invoking diplomatic immunity, let us recall the case of our Ambassador to Spain, Mr. Haroon-ur-Rashid Abbasi, who Pakistan withdrew from his post in 1975 without allowing prosecution when heroin was discovered in his suitcase.

Let us also recall the case of our longtime permanent rep at the UN, Ambassador Munir Akram in 2003 who wasaccused of assault by his then girlfriend. The US also asked Pakistan to waive immunity in that case, which Pakistan did not oblige. (The case was eventually settled when Mr Akram persuaded his girlfriend to withdraw the charges against him).

So, as they say, au contraire, my friends.

Some final points, and please remember that we are only taking issue with the 'facts' of the case as presented in the media. Television analysts have almost unanimously claimed that "Davis" did not have a 'diplomatic visa'. It might behoove someone to ask our media pundits if they have ever actually seen a Pakistani diplomatic visa. From our own investigations, it seems Pakistani visas have no such specified category of 'Diplomatic Visa' (unlike some other countries). In fact, according our sources, all foreign diplomats receive Pakistani visas with the marking "Purpose of Visit:" "Official" or "Official Business" (notOfficial / Business, another category that does not exist) on their diplomatic passports. If they carry such a visa on their diplomatic passport and the Foreign Office has been so notified, they receive diplomatic immunity during their stay in Pakistan.

Here are some scans of Davis' passport as presented on DawnNews' Reporter programme...

This is the marking on his passport, which clearly states that he is on "diplomatic assignment" (click picture to enlarge):

This is his current visa, issued incidentally not in Washington (as claimed by Shireen Mazari on Geo andSyed Talat Hussain on DawnNews) but in Islamabad:
In fact, "Davis" only once received a three-month visa in 2009 from Washington. His subsequent 4-month visa in 2010 and his current 2-year visa were both issued within Pakistan.

Kamran Khan on Geo also went to great lengths to 'break the news' that "Davis" is a spy who works for the CIA. He almost certainly is. But not only is that notamazing insight, we have to ask, so? Is his actual work the issue of contention here? As former ambassador Zafar Hilaly pointed out on Dunya, spooks get posted on "cover postings" abroad all the time, including by the Pakistan Foreign Office, and they all receive diplomatic immunity under the Vienna Convention. Let's at least be clear what we are arguing about.

in January 2001 of a Russian diplomat who killed a woman in Canadawhile driving drunk. A couple of quotes from this piece are worth pointing out.

"Andrey Knyazev was charged with criminal negligence causing death, impaired driving, failing to provide a breath sample, and criminal negligence causing bodily harm. Knyazev immediately claimed diplomatic immunity and on Monday, Russia denied Canada's request to lift it. [Russian Ambassador Vitaly] Churkin urged Canadians not to judge all Russians on the actions of one man. But he defended his government's right to recall Knyazev, saying it's tradition and common practice in the diplomatic community. “Many people are not happy that we didn't lift the diplomatic immunity," Churkin said. "The Canadian government has expressed its displeasure but recognized that this is our right.""

And this bit of wisdom from Canada's Foreign Minister that Pakistanis may also want to understand:

"[The] tragedy has raised questions about the use of diplomatic immunity to escape prosecution. But Foreign Affairs Minister John Manley says he will not use this case to press for changes. "There's an old saying among lawyers that hard cases make bad law," Manley said following a cabinet meeting Tuesday. "I think that (revising diplomatic rules) is something that we'd want to look at in a broader circumstance, not in the situation which we're in now," he said."

Incidentally, Shahid Saeed has also pointed out two further cases where Pakistani diplomats have invoked diplomatic immunity. The first involved Col Mohammad Hamid, a military attache in Pakistan's High Commission in London, who was caught in 2000 having sex with a prostitute in his car in a public place. When caught, Hamid immediately invoked diplomatic immunity and therefore could not be arrested. Here's an Indian Express report of the incident, which was also reported in the English papers.

The second involved the arrest in April 2001 in Kathmandu of Pakistan's first secretary Mohammad Arshad Cheema. 16kg of high-intensity explosive RDX were recovered from his residence. The Indian government believed him to be also linked to the hijacking of the Indian Airlines flight IC-814 which resulted in the freeing from Indian prisions of (subsequently Daniel Pearl murder accused) Omar Saeed Sheikh and Jaish-e-Mohammad leader 'Maulana' Masood Azhar. This report from the respected Indian magazine Frontline presents a wider and less one-sided perspective on the arrest. It also provides evidence of two things we already asserted in our post: that spies (and even military operatives) are often posted by foreign governments under diplomatic cover and that diplomatic immunity extends even to grave crimes. Cheema was expelled from Nepal rather than be prosecuted even though, by any definition, possessing high intensity explosives for ulterior motives is a very serious charge in any country.

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