Not so simple a matter

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The day, 7 February, 2011, when the young wife of one of the victims of Raymond Davis committed suicide having become hopeless of receiving justice, was a very sad day. I would put the blame for this mainly on the concerned ministries as they should have sent an official to meet the victims family and offer them solace and assurances of justice.

I have no doubt that even if the accused cannot be convicted for some reason, the US government would have agreed to pay a reasonable compensation to the distraught family. If this had been conveyed to the family, I am sure it would have prevented the untimely death of a young woman. Her desperate act clearly emanated from a complete lack of knowledge about diplomatic immunities which was natural. But it could be mitigated if the government officials had taken the trouble of explaining the complexities of the case and given her hope of justice in the form of blood money, which is provided in the Quran.

Since, this case has generated so much controversy about the Vienna conventions and diplomatic immunities, I would like to clarify that the case has two major aspects (1) legal, and (2) political.

As for the first, it should not be difficult to determine as the status of any person in a foreign mission is settled through official notes in advance. Hence, I am almost certain that the US must have mentioned Daviss designation, a diplomat, a consul or just a staff member of the embassy/consulate, while requesting for an appropriate visa for him before his arrival.

It is also important to note that even a consul normally carries a diplomatic passport and visa. However, his immunities and privileges depend entirely on the designation mentioned in the official visa note of his subsequent posting in a foreign embassy/consulate. However, the sending country has an absolute right to designate any one as a diplomat, a consul or a member of the administrative/security staff and the receiving country has an absolute right to reject the posting of any person without assigning any reason.

The appointment of heads of mission, i.e., ambassadors/high commissioners/consul generals are governed by even more elaborate procedures given in the two Vienna conventions. In their cases, it is mandatory that a prior consent or agrment from their receiving state is obtained. It is also a recognised practice that neither state makes an announcement about their names until after the agrment has been given.

The Vienna Convention on Diplomatic Relations 1961, gives absolute inviolability (Articles 22-24) to the diplomatic premises, its archives and documents, whether in or outside the diplomatic premises.

Similarly, (Articles 29-31) give absolute immunity to diplomats and members of their family against civil and criminal jurisdiction of the receiving state. In case of a serious crime committed by a diplomat, the receiving state can ask for waiver, trial in the sending state or can expel him from its territory.

Article 35, obliges the receiving state to provide complete protection to diplomatic/consular bags. They must not be opened or detained. In case of arrest/detention of a foreign national, Article 36 obliges the receiving states to give immediate access to his embassy/consulate.

The Consular Convention does not provide absolute immunity to a consul against serious crimes.

It should also be noted that diplomatic immunity extends to all parts of a receiving state, whether or not a diplomat is in a diplomatic vehicle or not. For example, a diplomat travelling in a local train, bus, airplane, ship etc, also cannot be arrested or detained till that vehicle remains within the territorial limits of the host country.

One of the most important points to note is that in case of a conflict between the provisions of an international convention and local laws, the former takes precedence over the latter.

As for the second aspect (political aspect), it can turn out to be the real determinant between two states, one dependent and the other provider of indispensable economic and military aid. That is precisely the relationship between Pakistan and USA. Consequently, at present, Pakistan being almost totally dependent for its survival on the US economic and military assistance, finds it impossible to resist the pressures and dictates of the US despite the opinion of its own public.

While it can try and convict Raymond Davis on charges of murder, if he does not enjoy a pre-determined diplomatic status, it has to give serious consideration to its relations with the US in case he does not. Therefore, the government and people of Pakistan must decide whether his conviction by our court in accordance with our laws would serve our national interest better or some other solution, acceptable to the victims family and Pakistanis would be in our greater national interest.

Since, the Quranic Laws, which have been incorporated in our national laws, provide for a compromise on the basis of blood money, it may be possible to reach an acceptable solution based on hard facts and ground realities of US-Pakistan relations, particularly as it may serve the interest of all parties involved in the matter.

In the specific case of Raymond Davis, I believe that our courts must be given a free hand to determine his status, diplomat or not, based on the official documents and his normal place of work, US Embassy in Islamabad or Consulate General in Lahore. Once, our court has given a judgment based on rules, the government should try to reach a compromise both with the US government and the families of the victims as well as try to convince the public opinion that a compromise with the US would better serve our national interest than an emotional response in the name of our sovereignty.

The writer is a former Ambassador of Pakistan.