Waiver from the Diplomatic Immunity & the Abuse of Vienna Convention (1961) by American Diplomats

By Maryam Iraj

It is time to study closely the laws of diplomatic immunity as set forth in 1961 Vienna Convention on Diplomatic Relations (VCDR), and has been agreed upon by 187 countries— including the United States and Pakistan. Pakistan is perhaps one of the few countries where Vienna Conventions on Diplomatic and Consular Relations are most often discussed and quite often abused.

The treaty (VCDR 1961) positions clearly the status of diplomatic agents; inclusive of the members of the diplomatic staff, and of the administrative and technical staff and of the service staff of the mission. They enjoy “immunity from the criminal jurisdiction of the receiving State.” Having said that, it also renders an option of waiver from the diplomatic immunity if the nature of crime is severe.

Treaty clearly articulates that diplomats enjoy immunity from civil proceedings unless the case involves property or business interests unrelated to their diplomatic duties.

This international law of immunity is articulated in Article 31(1) of the Vienna Convention: “A diplomatic agent shall enjoy [absolute] immunity from the criminal jurisdiction of the receiving State.’ This became law in the United States with the passage of the Diplomatic Relations Act of 1978.”

The law of diplomatic immunity was enforced with an idea of maintaining public order and preserving free and sustained relations among nations. But there is also a concept of waiver from diplomatic immunity if the host state wishes. The notion of diplomatic immunity dates back to early Greek and Roman governments. However owing to the poor interpretation by officials, spineless leadership or no leadership in the foreign office, and over-enthusiastic journalists, who are too keen to twist a tragic case, often beget misleading stories.

The Foreign Office could have contacted the State Department through US Embassy in Islamabad and must have sought for the waiver of the immunity enjoyed by the diplomat, so that the charges could be brought up against him in the court of law of the host country.

There is a complete procedure for seeking waiver described in VCDR and with acquisition of explicit waiver, we could have proceeded with the trial. But such steps necessitate strong foreign policy and leadership in the foreign office, and can’t be possible in the absence of a Foreign Minister, rest assured.

Raymond Davis: 27 January 2017

Seven years ago, in 2011 on 11 January, Raymond Davis, a United States national, killed two Pakistanis in Lahore—albeit allegedly in self-defense. This case had the potential of fetching a major foreign policy issue between Pakistan and the US. But the affair has been resolved through a private compensation scheme leaving little chance for international media to address the controversy and legal trespassing of a US Citizen.

Colonal Joseph, 7 April 2018

Seven years fast forward, on April 7, Colonel Joseph Emanuel Hall violated a red light and rammed into a motorcycle killing a Pakistani civilian and leaving one severely injured.

He was allowed to go by police officials in Islamabad after the accident in alignment of the Vienna Convention on Diplomatic Relations, 1961. Despite the fact, the local police has handed over all record related to Colonel Hall to US officials for the legal prosecution of Colonel Emanuel Hall, there is very little chance of a fair trial, if at all there would be any.

Earlier on Saturday 12 May 2018, a United Airforce C-130 airplane was returned from the Nur Khan Airbase in Rawalpindi without the diplomat as the Interior Ministry refused to issue him a No Objection Certificate (NOC). That incident gave many Pakistanis a hope for a just and fair trial but it was short-lived.

Yesterday, on 14 Monday 2018, US Military Attaché Colonel Joseph Emanuel Hall, involved in the brutal killing of a Pakistani youth in a road accident as shown in the following video, left for the United States on Monday evening, under the shield of diplomatic immunity.

According to a source, Pakistan had accepted the US view point that Colonel Hall had complete diplomatic immunity under Vienna Convention.

This is in contrast to the Islamabad High Court orders of May 11, on a petition filed by the deceased’s father, which ruled, ‘the US diplomat does not have absolute immunity in the country”. The court had also granted two weeks to the Ministry of Interior Affairs to decide placing his name on the Exit Control List (ECL).

Justice Aamer Farooq further criticized the conduct of Islamabad police to carry out the necessary procedure and directed police to act accordingly but nothing would cure Pakistan of the deeply rooted political infestation we, as a nation, suffer from.

All that was short-lived just like the short-lived murdered youth of Pakistan by American diplomats.

In Raymond Davis’ case, the Pakistani Government, in contrast to the US, had not taken any diplomatic position or made any official comment publicly in this matter. Several important queries regarding Raymond Davis in the question-answer sessions raised in the Pakistan Foreign Office press briefings, to this date, remain unanswered. The Pakistan Foreign Office Spokesperson’s response had always been brief and evasive.

However, Mr. Philip J. Crowley, former United States’s Assistant Secretary of State for Public Affairs, held at least more than three press-conference and consistently took a clear and firm position to bring Raymond Davis back to US. In subsequent press briefing, Mr. Crowley, in contrast to his Pakistani counterparts emphasized: “He [Raymond Davis]– I’ll just repeat to you what I’ve said all along. He is a U.S. diplomat. He was assigned to the Embassy in Islamabad. He has immunity. And we again call for his release”

That’s how responsible governments behave but what to talk of Pakistani diplomats and politicians. Nobody took a clear and articulated position what to talk of waiver in either of the cases; Davis & Hall.

Since the charges were extremely serious both against Davis and Hall, Pakistan could have pressed hard for the waiver of immunity from US (both under Obama and Trump’s administration respectively), and US must have allowed waiver for trials to proceed for the serious offenses committed by the diplomats. But our foreign office neither made such a resolve and nor made efforts to bring justice to the lives of a third-world Muslim country boys who were shot and rammed into like dogs on the streets of Lahore.

The only official position we had in the case of Hall was of Foreign Secretary,Tehmina Janjua, who told US Ambassador David Hale, when he was summoned to the Foreign Office to be in receipt of the protest that, “Justice will take its course in accordance with the law of the land and the Vienna Convention on Diplomatic Relations 1961”.

With case studies such as of Raymond Davis and now of Colonel Hall, international laws must be studied, revisited, and interpreted by international legal bodies and local foreign offices.

We could be next so be careful on the roads. As of now we know that we are both worthless and spineless as a nation.

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