Diplomatic and Consular Immunity: One Rule for Foreign Consulates in US, Another for US Consulates Abroad
President Obama, before he was a President or a Senator, was a constitutional law professor. He should know the law.
And yet in the increasingly dangerous show-down over Pakistan’s arrest and detention of Lahore consular contract “security official” Raymond Davis, who is charged with two counts of murder for the shooting deaths of two young Pakistanis on January 27, the president has grossly misstated what international law is with respect to the immunity from prosecution of diplomatic and consular officials.
As the president put it on a few days ago at a press conference, “With respect to Davis, our diplomat in Pakistan, we’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future. If our diplomats are in another country, then they are not subject to that country’s local prosecution. We respect it with respect to diplomats who are here. We expect Pakistan, that’s a signatory should recognize Davis as a diplomat, to abide by the same convention.”
The first problem is that Davis isn't a "diplomat." At best he's a consulate employee. Furthermore, whoever wrote the president his lines or gave him his background briefing sure didn’t read the Vienna Convention on Consular Relations of 1963! Nor did he or she read a document issued last August by the US State Department titled: Diplomatic and Consular Immunity; Guidance for Law Enforcement and Judicial Authorities (Dept. of State Pub. 10524)
The Vienna Convention on Diplomatic Relations of 1961 that the president mentions, and to which the State Department keeps referring when telling Pakistani and American journalists that Davis must be released from jail, is really not even the relevant document. Davis is not a diplomatic employee. He stated himself to police that he is "only a consultant at the Lahore Consulate". Whether even that statement is true or not, the point is that his legal status would then be determined in accordance with the later treaty, the Vienna Convention on Consular Relations of 1963.
And as that document states, in Article 41:
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.
Murder would, of course, constitute such a “grave crime.”
Perhaps police and prosecutors in Lahore, when they arrested Davis and jailed him pending a court hearing on his legal status vis-a-vis possible immunity from prosecution for the crime of murder (and possibly also espionage, which is a charge reportedly also being considered), were following some kind of protocol of Pakistan’s Department of Foreign Affairs--something akin to the US State Department’s legal advice to American police and judicial authorities.
Because here’s what the US State Department says regarding the immunity claims of diplomatic and consular officials of foreign governments in the US:
International law, to which the United State is firmly committed, requires that law enforcement authorities of the United States extend certain privileges and immunities to members of Foreign diplomatic missions and consular posts. Most of the privileges and immunities are not absolute and law enforcement officers retain their fundamental responsibility to protect and police the orderly conduct of persons in the United States.
The document goes on to state:
Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions.
The State Department guidance document notes that the staff of embassies are afforded the highest level of privileges and immunities in the host country (ambassadors and their immediate subordinates, such as the charge d’affaires) have virtually total immunity from detention and prosecution. But it goes on to state that it is another thing altogether when it comes to consular officials. Here the document states:
There is a common misunderstanding that consular personnel have diplomatic status and are entitled to absolute immunity.
Hmmmm. Sounds like what Obama is suffering just such a misunderstanding.
But as the State Department tells American law enforcement personnel:
Consular officers..have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested and detained pending trial only if their offense is a felony and the arrest is made pursuant to a decision by a competent judicial authority.
The document also makes it clear that it is not up to the arrested consular official’s home country to determine whether the person is properly being held for trial:
No...diplomatic mission or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime.
Only (a) court, in the full light of all the relevant facts, determines whether the action complained of was an official act.
Clearly then, the President and the State Department are factually wrong to insist that Davis must be released from jail. Pakistani judicial authorities in Lahore are doing exactly what the police and courts in the US would do with State Department blessing if a similar incident occurred involving a foreign country’s consular employee here in America.
Raymond Davis may never face trial for the execution-style slaying of two Pakistanis, who appear not to have been robbers threatening him, as claimed by the US, but rather Pakistani intelligence agents who were tailing him, suspecting him of being a spy, but if he is released without facing a judicial hearing, or if that hearing is less than a thorough evidentiary proceeding, it will be not because of the Vienna Conventions, but because of the intense pressure, diplomatic, military and economic, being brought to bear on the Pakistani government by the US, which has dispatched Congressional representatives and senators and the Secretary of State, and now the President, to send the message: Let him go or else!
They might want to reconsider.
The president, the secretary of state and myriad government flaks and Congressional stooges like Rep. Daryl Issa and Sen. John Kerry aren’t just insulting Americans’ intelligence with this “absolute immunity” nonsense. They are insulting the Pakistani people.
At this point, if Davis is sprung because of US pressure, the anger that has led Pakistanis to take to the street by the thousands over this case, demanding that Davis face justice for his actions, could well explode in a revolution that will make Egypt’s People Power uprising a distant memory.
Copyright © 2011 This Can't Be Happening.