On January 27th, an American citizen named Raymond Davis shot and killed two Pakistani men in Lahore, Pakistan. Davis was arrested at the scene and has subsequently been charged with murder. He claims he shot the men in self-defense.
Davis is a U.S. official, which means that this incident poses a major challenge to U.S.-Pakistan relations and to one of the international community’s most settled legal rules. The U.S. says that Davis, a former Special Forces soldier, is a member of the American Embassy and is therefore protected by diplomatic immunity.
Under Article 31 of the 1961 Vienna Convention on Diplomatic Relations (to which both the U.S. and Pakistan are parties), diplomats have absolute immunity from the criminal jurisdiction of their host states. International law is frequently derided as not being particularly law-like, but diplomatic immunity is the area of international law where this is least true. Every nation that sends diplomats abroad has a powerful incentive to respect the rule in their treatment of other nation’s diplomats. Consequently, diplomatic immunity is taken very seriously by the international community. That a potential breach would arise in the case of two closely allied nations like Pakistan and the U.S. is particularly troubling.
Pakistan’s Foreign Ministry has so far not certified Davis’s immunity, and officials have stated that the issue will be dealt with by the courts. U.S. Senator John Kerry was dispatched to smooth things over earlier this week, but following his departure, the Lahore High Court announced today that it would grant the government a three week postponement of the proceedings to determine whether or not Davis has immunity.
The coverage of the case has raised a number of arguments about why Pakistan has not confirmed Davis’s immunity. Here’s a selection:
(A) Per one of the lawyers in the case: “The actions of Raymond Davis are not covered by blanket immunity because he has committed a heinous crime.”
(B) Davis might actually work at the American Consulate, not the Embassy.
(C) Davis might be a spy.
(D) The men Davis killed might have been Pakistani intelligence operatives.
Most of these arguments are nonsense. There is no exception to diplomatic immunity related to severity of the crime or identity of the victim. In the case where a diplomat commits a heinous crime, the host country has two courses of action: (1) request that the diplomat’s home government waive the immunity so that the diplomat can be prosecuted in the host country’s courts, or (2) declare the diplomat persona non grata and then seek extradition once the diplomat has left the country.
Whether or not Davis was a spy posing as a diplomat is also immaterial. Spies under official cover as diplomats have diplomatic immunity. This is a big piece of why it’s so common for governments to use diplomatic posts as covers for intelligence agents. Because it’s illegal in most countries for diplomats to spy, when they are found out, they are declared persona non grata and sent home. But the host country doesn’t get to prosecute them.
The possibility that Davis was actually a consulate worker, not an embassy worker, is the only potential game changer here. That’s because consular officers aren’t covered by the 1961 Vienna Convention on Diplomatic Relations. They’re covered by a different treaty: the 1963 Vienna Convention on Consular Relations. Consular officers have more limited immunity than diplomats do. They are protected from the civil jurisdiction of the host country’s courts for acts performed in connection with their official functions, but they are not immune to the host country’s criminal jurisdiction. Host countries aren’t supposed to arrest or detain consular officers except in cases of “grave crime” (like murder).
The Pakistani Foreign Ministry insists that Davis was not on the official list of diplomats submitted by the U.S. Embassy and that U.S. officials in Pakistan have given conflicting statements about whether Davis is affiliated with the Consulate or the Embassy. They therefore argue that his immunity status is not clear. However, the U.S.’s 2009 application to the Pakistani Foreign Ministry for Davis’s posting lists him as “technical and administrative staff” of the Embassy, a status that grants him immunity from criminal (although not necessarily civil) prosecution.
The U.S. has made a clear claim that Davis is protected by diplomatic immunity. Admittedly, Pakistan is in a rough position: Zardari’s government does not have a particularly firm grasp on power, and popular opinion in Lahore, an opposition stronghold, is calling for Davis’s blood. But the conduct of diplomacy, like many other areas of international law, relies heavily on a norm of reciprocity. In choosing not to certify Davis’s immunity, Pakistan is potentially destabilizing one of the bedrock principles of international law and diplomatic relations.