ISLAMABAD – The US may approach the International Court of Justice (ICJ) for the settlement of a row with Pakistan over the fate of a detained US citizen, Raymond Davis. The Obama administration says Davis is a diplomat who enjoys immunity from being tried in a Pakistani court.
Contrary to Pakistan’s stance that Davis, who killed two Pakistanis in Lahore on January 27, is not a diplomat, the US authorities insist that he is a member of staff of the US embassy in Islamabad, entitled to diplomatic immunity and his trial in a Pakistani court is totally illegal. “The United States doesn’t even consider it legal and trying Davis in a Pakistani court for murdering two Pakistanis is totally in negation of international laws as he is a diplomat… that is why the US government has appointed no lawyer for Davis’ defence and the ones who are representing him in the court have been appointment by him in his personal capacity,” a diplomatic source said on Wednesday.
“Davis has diplomatic immunity under the Vienna Convention and he cannot be arrested or tried by a Pakistani court,” he said, adding, “Davis can just be declared persona non-grata and expelled from Pakistan.” Explaining the legal obligations under the Vienna Convention, the source said Davis had been notified on January 20 as a member of administrative and technical staff of the US embassy in Islamabad therefore, he had diplomatic immunity.
He said under the Vienna Convention on Diplomatic Relations, such staff enjoyed international privileges and immunities. “We still believe that Davis is a member of the administrative and technical staff of the embassy in Islamabad and is entitled to full immunity from criminal prosecution and should not be arrested or detained.” Another diplomat said, “Pakistan is signatory to the treaty to which the US is also a party without reservation, along with 185 other countries.”
To a question, the diplomat said, “If there is a dispute on the implementation on the articles of the Vienna Convention, the matter can be taken to the International Court of Justice (ICJ).” He said, “There is a dispute resolution mechanism. There is an optional protocol to the convention to which both Pakistan and the US are signatories and under this protocol there is a provision for the dispute to be notified to the ICJ. The states can also take the matter for arbitration.” “Optional protocol has mandatory jurisdiction,” he said.
“If the countries go to the ICJ under the optional protocol of the Vienna Convention, ICJ would have mandatory jurisdiction. Decision would be binding on the states, who would then be obligated to perform. It would be the responsibility of the concerned state to bring its actions in conformity with the international law,” he said, adding however that that was rare and most of the cases were resolved bilaterally.
“The convention is an international instrument and Pakistan and the US are both parties to it. There are obligations under treaty and states are free to appoint members of their mission. When appointed the members of mission, enjoy immunities and privileges. There is a requirement for sending state to notify to the host state’s ministry of foreign affairs but that notification is consequence of appointment and respects the local law,” he said.
Referring to the issue of diplomatic passport and diplomatic visa necessary for diplomatic immunity, the diplomat claimed there was no need to have a diplomatic passport or a diplomatic visa.
