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Pakistan Case Tests Laws on Diplomatic Immunity

WASHINGTON — An American C.I.A. contractor is accused of killing two men at a crowded intersection in Pakistan. Can Pakistani officials lawfully prosecute him for murder?

American Held in Pakistan Worked With C.I.A. (February 22, 2011)
In debating the fate of Raymond A. Davis, who is charged with gunning down two people in Lahore last month under circumstances that remain murky, the United States and Pakistan are writing a new chapter in the long history of operatives who work under diplomatic cover.

For Pakistanis, many of whom are angry at the apparent impunity with which the C.I.A.’s drone missiles regularly kill terrorism suspects — and, at times, innocent bystanders — Mr. Davis’s case has proved galvanizing. Protesters have called for Mr. Davis to be hanged.

But for Obama administration officials, the legal case is clear-cut. They insist Mr. Davis has diplomatic immunity that protects him against prosecution in Pakistan. Pakistan can expel Mr. Davis, the administration says, but it has no right to imprison him and move forward with a murder case.

“If our diplomats are in another country, then they are not subject to that country’s local prosecution” under the Vienna Convention on Diplomatic Relations, President Obama said last week, adding that Pakistan should abide by that rule.

American officials say Mr. Davis was part of a covert, C.I.A.-led team collecting intelligence and conducting surveillance on militant groups in Pakistan.

At the core of the debate is the principle that those proclaimed to be diplomats working abroad should be immune to prosecution because they should be beholden only to the legal systems of the countries that sent them, rather than local courts. The usual remedy is expulsion. This has generated international disputes when diplomats have been accused of murder or other crimes.

But this case also rests on legal technicalities, with confusion arising from contradictory statements by the State Department in the first days after Mr. Davis’s arrest. Those statements have called into question whether Mr. Davis was working — officially, at least — as a diplomatic official or a consular one. Consular officials are afforded somewhat weaker legal protections because they are thought of as administrators, rather than diplomats.

Initially, State Department officials described Mr. Davis as a staff member for the United States Consulate in Lahore.

Days later, however, the United States government said that Mr. Davis was actually listed with the administrative and technical staff of the United States Embassy in Islamabad — and that it had formally notified the Pakistani Foreign Ministry of his status there on Jan. 20, 2010.

The distinction is crucial. If Mr. Davis was listed as a technical staff member for the embassy’s diplomatic mission, then he would be covered by a 1961 treaty that gives diplomats total immunity to criminal prosecution. In that case, Pakistan should be allowed only to expel him. Victims’ families, however, might still be able to sue him for civil damages.

But if Mr. Davis were instead listed as a staff member for the consulate in Lahore, then he would be covered by a 1963 treaty that governs the rights of consular officials and that allows host countries to prosecute them if they commit a “grave crime.”

The contradictory statements over Mr. Davis’s assignment are just part of the evidence that Pakistani news accounts have cited in criticizing the United States’ position. On the day of the shootings, for instance, a State Department spokesman said at a news briefing that Raymond Davis was not the actual name of the person who was in Pakistani custody. The United States now says that he is indeed Mr. Davis.

The State Department says that for legal purposes all that really matters is that the embassy had listed him as a member of the diplomatic mission’s technical and administrative staff.

“This is all just a sideshow,” said John Bellinger, a State Department lawyer in the administration of President George W. Bush.

However it is resolved, Mr. Davis’s case appears destined to join a rogue’s gallery of notable disputes arising from invocations of diplomatic immunity.

In 1984, for example, someone inside the Libyan Embassy in London fired a gun out of its window and killed a British policewoman. The shooting caused an uproar that tested the limits of diplomatic immunity, but the British government allowed the embassy staff to return to Libya.

In 1997, a Georgian diplomat driving drunk in Washington killed an American teenager. Although the man was initially released, the Georgian government waived his immunity. He was prosecuted and pleaded guilty to involuntary manslaughter.

The United States, however, has made clear that it will not waive immunity for Mr. Davis. That stance raises the question of what happens if Pakistan continues to hold him and moves forward with prosecution, arguing that he was not a real diplomat.

Diplomatic history is full of incidents in which host countries have accused people working as embassy officials of being spies. But in most cases, the officials have simply been expelled.

Perhaps the most notable exception was in 1979, when Iranian militants overran the United States Embassy in Tehran. They claimed their hostages were “mercenaries and spies” who did not deserve “diplomatic respect.”

The United States sued Iran in the International Court of Justice. In 1980, the court ruled against Iran — saying its only remedy if it thought the embassy officials were spies was to expel them or break off diplomatic relations.

Source: http://www.nytimes.com/2011/02/23/world/asia/23immunity.html?hp

For more info: http://www.nytimes.com/2011/02/22/world/asia/22pakistan.html?ref=asia
Tags: diplomacy, pakistan, usa

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