Diplomatic Immunity and the Raymond Davis Case

There has been a great deal of controversy as to whether Raymond Davis would be liable to criminal prosecution in Pakistan for the alleged murder of two Pakistani nationals. The United States holds that diplomatic immunity applies. Former Pakistani Foreign Minister Shah Mehmood Qureshi argues that blanket immunity does not apply for the most serious crimes. Still others claim that Davis is a CIA operative and that neither partial nor absolute immunity applies. What is the law on diplomatic immunity and does it apply to Davis in this case?

A. Diplomatic Immunity: an Overview
There are 183 members of the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both Pakistan and the United States have ratified it. The VCDR grants diplomatic mission staff the privileges and immunities necessary for them to carry out their work. Article 29 provides in part: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Diplomats thus have complete immunity from criminal prosecution in their receiving states. With some exceptions outlined in article 31(1), they also enjoy immunity from civil and administrative jurisdiction in all matters that touch the diplomatic agent’s function as a diplomatic.
The law of the receiving state cannot be applied to the immune person for as long as the immunity lasts and is not waived by the sending state. Because the immunity derives from the sovereignty of the state, diplomats cannot waive immunity on their own behalf.

B. Consular Immunity: an Overview
Because consular officials do not intervene in political matters to the same extent that diplomatic agents do, they are not permitted the same degree of immunity from jurisdiction as diplomats. Their privileges and immunities are governed by the 1963 Vienna Convention on Consular Relations (VCCR).
Article 40 VCCR provides that “The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.” They are not 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” (art. 41 VCCR). If, however, criminal proceedings are instituted against him, the consular officer “must appear before the competent authorities” and the proceedings must be conducted “in a manner which will hamper the exercise of consular functions as little as possible” (art. 41 VCCR). Consular immunity from judicial and administrative jurisdiction applies to consular officials for acts performed in the exercise of consular functions. It does not apply to civil actions arising out of a contract concluded by a consular official in which he did not contract as an agent of the sending State or to civil actions by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft (art. 43 VCCR).

C. Conclusion
Whether diplomatic immunity applies to Davis depends on his status. If he is in fact an accredited member of the US Mission’s Diplomatic staff in Pakistan, then full criminal diplomatic immunity would apply. If he is a commissioned member of the US Mission’s Consular staff, then criminal diplomatic immunity would apply, except for the most serious crimes. If he is an accredited member of neither the Diplomatic nor Consular staff, then neither form of immunity would apply.
What does all of this mean? First let me set out what diplomatic immunity does not mean. It does not mean that the immune person is exempt from the laws of his own state. If a serious crime was committed by Davis, the sending state (the US) may recall him back to the US to be prosecuted back home. In addition, it may waive his immunity and allow for him to be prosecuted by the receiving state (Pakistan) (art. 32 VCDR).
Let me further clarify what diplomatic immunity does not mean. It does not bar the receiving state (Pakistan) from ever prosecuting a diplomat; it bars prosecution against an individual only as long as he remains a diplomat. Thereafter, the individual may be prosecuted by the receiving state for crimes committed within its territory at the time he served, provided statutes of limitation do not bar prosecution.
In the present case, Pakistan will not be satisfied with prosecuting Davis after his service is due to expire or allowing him to be recalled to the US for prosecution. Perhaps partially due to the sentiments of the Pakistani people, who wish to see their government not caving in to US demands, and partially due to concerns that Davis may not be a diplomat, the Pakistani courts are moving forward in trying Davis in a case that is sure to strain a key US-Pakistani partnership in the war on terror.