Rai Muhammad Saleh Azam The shooting to death of two Pakistani youths, namely Faizan and Faheem, by a US national, Raymond Davis, and the death of a third Pakistani, namely Obaidur Rahman, by a vehicle operated by the US Consulate, in Lahore, on January 27, 2011, has, once again, raised concerns about to the conduct of US nationals and officials working for its Embassy and Consulates in Pakistan. Davis was arrested by the Punjab Police on the same day and, the next day, was presented before a magistrate in Lahore, who remanded him into police custody for six days. The US Embassy in Islamabad called for his release whilst claiming that he was a diplomat and was being detained illegally in violation of the Vienna Convention on Diplomatic Relations, 1961 (the Vienna Diplomatic Convention). The Lahore High Court, in response to a public interest petition, restrained Pakistani authorities from handing Raymond over to the US and ordered his name to be placed on the Exit Control List to prevent him from leaving Pakistan. It may be pertinent to note that the Embassys press release of January 29, 2011, makes the following, rather surprising, claim: On January 27, the diplomat acted in self-defence when confronted by two armed men on motorcycles. The diplomat had every reason to believe that the armed men meant him bodily harm. Minutes earlier, the two men, who had criminal backgrounds, had robbed money and valuables at gunpoint from a Pakistani citizen in the same area. One wonders the basis on which the Embassy is claiming that two of the deceased had criminal backgrounds or had committed any crime. The deceased have not been found guilty of the offence alleged by it, either by the police or court. In making such an unwarranted claim, which is against diplomatic norms and also amounts to unlawful interference in a legal process of a host state in violation of Article 41(1) of the Vienna Diplomatic Convention, the US Embassy has clearly overstepped its bounds. The press release goes on to say: When detained, the US diplomat identified himself to police as a diplomat and repeatedly requested immunity under the Vienna Convention on Diplomatic Relations. Local police and senior authorities failed to observe their legal obligation to verify his status with either the US Consulate General in Lahore or the US Embassy in Islamabad. Furthermore, the diplomat was formally arrested and remanded into custody, which is a violation of international norms and the Vienna [Diplomatic] Convention, to which Pakistan is a signatory. It seems that the Embassy is unaware that when a foreigner is arrested and claims diplomatic immunity, it is not the legal responsibility of the arresting authority, in this case the Punjab Police, to ascertain his diplomatic status; it is the responsibility of the arrested person and his Embassy or Consulate to establish his diplomatic credentials that cannot achieved without any documentary proof. The Convention does not require states to assume that every foreigner is a diplomat. It is the responsibility of all diplomats to carry on their persons, at all times, their diplomatic identity cards, which are issued by the Foreign Ministry of the host state and to produce it on demand when required by any government authority, including the police. The Embassy has overlooked the fact that Davis was arrested from a non-diplomatic vehicle (with non-diplomatic registration plates) and he failed to produce any diplomatic identity card when asked to establish his diplomatic credentials. Earlier, the Embassy issued the following press release on January 28, 2011: A staff member of the US Consulate General in Lahore was involved in an incident yesterday that regrettably resulted in the loss of life. The Embassy is working with Pakistani authorities to determine the facts and work toward a resolution. Clearly, there is an inconsistency in the Embassys presses releases of January 28 and 29. It did not raise the issue of diplomatic immunity a day after the arrest and, in fact, referred to Raymond as being a staff member of the Consulate, General in Lahore - in other words, a consular officer. The Embassys press release of January 28 only reinforced the belief of the Punjab Police and the Punjab government, and justifiably so, that he was not a diplomat, but a consular officer and, as such, not immune from detention and prosecution. Under the Vienna Convention on Consular Relations, 1963 (the Vienna Consular Convention), consular officers do not enjoy unfettered diplomatic immunity. Article 41 states: Consular officers shall not be 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. It is evident that shooting to death of two human beings constitutes a grave crime pursuant to the Convention and the detention is pursuant to a judicial process, having been authorised by a competent judicial authority. What needs to be appreciated by the Embassy is that if a Pakistani national, shoots two Americans on the streets of New York using an unlicensed weapon whilst driving a non-diplomatic vehicle and is, subsequently, arrested by the police and claims diplomatic immunity without producing any diplomatic ID, will the police be bound to release him or detain him till such time that he or the Pakistani Consulate establishes his diplomatic credentials? Clearly, the police will have the right to detain him till such time. Therefore, in the light of the aforesaid, the arrest of Raymond by the Punjab Police was legal and not in violation of the Vienna Consular Convention or, for that matter, the Vienna Diplomatic Convention (both ratified by Pakistan in its Diplomatic and Consular Privileges Act, 1972). Furthermore, the Americans continued detention is not a violation of the Vienna Diplomatic Convention till the time that it is proved that he is a diplomat. The Embassy, until now, has failed to establish his diplomatic status. Indeed, the evidence so far is to the contrary. A local news channel has shown a letter written by the Embassy dated January 20, 2010, wherein it is informing Pakistans Foreign Ministry that Raymond is a member of its administrative and technical staff and requesting for him the issuance of a non-diplomatic ID card. This letter clearly shows that the Embassy itself did not recognise him as a diplomat. It, therefore, seems that its January 29, 2011, press statement claiming Davis as a diplomat is an afterthought intended to shield him from criminal prosecution. No one should dispute the fact that diplomats are immune from criminal prosecution under the Vienna Diplomatic Convention (Article 31(1)). Even if we were to hypothetically assume, without admitting, that the alleged person is a diplomat, there are still options that can be exercised. The Convention clearly reveals its spirit when it states that the purpose of such privileges and immunities is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions as representing states. It allows foreign states to: (i) themselves punish their own diplomats for committing crimes in host countries (Article 31(4)); and (ii) waive the diplomatic immunity of its diplomats so that they can be prosecuted by the host state (Article 32). Therefore, the host state may itself request the foreign state to waive the immunity of a diplomat so that it can prosecute him. The Convention also contains a mechanism under which a diplomat can be stripped of his diplomatic status and immunity by the host state. The state has the authority under Article 9 to declare a diplomat as a persona non grata and, thereafter, under Article 43(b), to issue a notice to the foreign states Embassy informing it that it refuses to recognise such person as a member of the its diplomatic mission. Upon receipt of the notice under Article 43(b) by the foreign states Embassy, the diplomat in question forthwith ceases to remain a diplomat and is automatically stripped of his immunity. Therefore, even if it is established that Raymond is a diplomat, the Pakistan can strip him of his diplomatic status by, firstly, declaring him a persona non grata under Article 9 of the Convention and, thereafter, by issuing a notice under Article 43(b) to the US Embassy informing it that Pakistan refuses to recognise him as a member of the diplomatic mission. Even if Pakistan does not take the above action, the US can take the moral high ground and itself waive diplomatic immunity for Raymond Davis. There are precedents in this regard and one need not look beyond the manner in which the US itself views diplomatic immunity. Though, in this case of a junior functionary, the Embassy is claiming diplomatic immunity for a person who shot two Pakistani youth using an unlicensed weapon, the US itself demanded the lifting of immunity of a senior diplomat who accidentally killed its citizen in a car accident on its soil. In 1997, Gueorgui Makharadze, the Georgian Deputy Ambassador to the US, accidentally killed an American teenager in an accident in Washington, DC. The US exerted extreme pressure on the Georgian government to lift his diplomatic immunity even though it was not a deliberate shoot-to-death killing, as in the case of Raymond, but a car accident. The Georgian government finally relented in the interests of US-Georgian relations and on moral and ethical grounds. Makharadze was tried in a US court, found guilty of manslaughter and sentenced to 21 years in prison. While lifting diplomatic immunity for Makharadze, then Georgian President Eduard Shevardnadze observed: I cannot imagine diplomacy and politics devoid of moral principle. Even if Raymond Davis is a diplomat, wouldnt it be prudent for the US to follow Georgias example and lift his diplomatic immunity in the interests of US-Pakistan relations and on moral and ethical grounds. Or, perhaps, unlike Georgia, the US sees diplomacy as being devoid of moral principles. The writer is an advocate of the Lahore High Court.