A diplomatic tangleArdeshir Cowasjee - Sunday, February 06, 2011

Source : www.dawn.com

UNDER the Vienna Convention of Diplomatic Immunity and Privileges (1961), diplomats and their family members can be charged with crimes but are immune from criminal prosecution and civil liability. In some cases, they can be expelled from the country where they are posted.

In January 2001, a Russian diplomat was accused of killing a woman in Ottawa, driving whilst drunk. The accident happened as Mr Andrei Knyazev, first secretary at the Russian embassy in Ottawa, was returning from an ice-fishing party. He lost control of his car and mounted the pavement, killing 50-year-old lawyer Catherine McLean, and severely injuring her friend, Catherine Dore.

The low-level diplomat Andrey Knyazev was charged with criminal negligence causing death, impaired driving, failing to provide a breath sample and criminal negligence causing bodily harm. However, Mr Knyazev immediately claimed diplomatic immunity and Russia denied Canada`s request to lift it asserting that the diplomat would be prosecuted in his own country. On return to Russia Mr Knyazev was jailed for four years.

At a news conference in Ottawa, soon after the incident, Russia`s ambassador, Vitaly Churkin, stated how “profoundly shocked and extremely upset” he was by the incident. However, he insisted that his country had every right to use diplomatic immunity and urged Canadians not to judge all Russians on the actions of one man.

The case of the Russian diplomat is not an isolated incident. Such incidents occur in every country and involve diplomats from around the world. Between 1999 and 2004, according to released British government records, 122 serious offences were allegedly committed by diplomatic staff.

These include allegations of murder by a Colombian diplomat, two counts of indecent assault from South Africa — including an incident of drunken groping — and Moroccan embassy officials accused of rape and child abuse. In May 2010, South Korea and Ukraine were involved in a diplomatic row over whether or not the Ukrainian ambassador to Seoul caused a serious traffic incident while under the influence of alcohol.

Every country, including the United States, has always chosen to abide by the Vienna Convention although every country states it wishes to maintain sovereignty and control within its territory. This is because the Vienna Convention is not a laundry list of items where we can pick and choose the rules and regulations we like. Rather the Vienna Convention on diplomatic immunity includes guidelines laid down for all countries to follow and abide by.

Only if we follow these guidelines and respect the diplomatic privileges and immunities of foreign diplomats will those of our own diplomats abroad be protected. The question of immunity rests between the foreign ministries of the two countries and does not involve courts of law. One country confers diplomatic immunity by sending someone abroad on a diplomatic passport and the other accepts it by granting a diplomat a visa.

In 1977, when a US diplomat killed an Australian government worker in a Canberra traffic accident the diplomat was sent home without trial. In 1997, a drunk Georgian diplomat killed a 16-year-old girl in New York with his reckless driving and the US requested a waiver from immunity for him. In this case the Georgian government withdrew his diplomatic immunity.

The diplomat was sentenced for seven to 21 years but was transferred back to Georgia after serving three years. In 1984, a British constable Yvonne Fletcher was apparently shot dead by Libyan embassy staff in London in 1984. Diplomatic immunity shielded the staff though it led to Britain breaking off diplomatic relations with Libya. Fifteen years later, as part of a package designed to restore normal relations, Libya accepted “general responsibility” and paid compensation.

As with many other countries, Pakistan has also used diplomatic immunity to protect its diplomats across the world. In 1975, Zulfikar Ali Bhutto withdrew an ambassador from a European country without allowing prosecution when heroin was discovered in his suitcase.

In January 2003, the State Department asked Pakistan to withdraw the diplomatic immunity of its permanent representative to the UN, Munir Akram, after New York City prosecutors sought to bring misdemeanour assault charges against him as a result of a quarrel with his girlfriend, Marjiana Mihic, who claimed that after an argument with Mr Akram, when she tried to leave, he assaulted and injured her.

The US State department demanded the withdrawal of immunity, the Pakistanis invoked it. The incident was resolved when the girlfriend withdrew her charges.

This leads us to the current case of American Raymond Davis who shot two people ostensibly trying to rob him. Without getting into whether or not Davis should have been carrying a gun and what the circumstances of the shooting were, if, as our interior minister has confirmed in the Senate on Feb 2, he holds a diplomatic passport this grants him immunity from prosecution for any civil or criminal offences.

If we adhere to international law not only should Pakistan release him but, as a diplomat, he should not have been arrested in the first place. National pride and cries of ghairat should not lead us to lose sight of the key point here, i.e. diplomatic immunity covers all aspects of civil and criminal conduct, including murder.

If this nation was a responsible member of the international community led by reasonable people, we would have protested the actions of Davis and demanded that the US take action against him. But being infused with a disproportionate amount of ghairat and only a limited quantum of reason we have chosen to create a diplomatic standoff with the United States which we will ultimately lose if it is found that international law stands against our stance. Rantings and ravings by our media ghairatwallahs will neither enhance our international standing nor change facts.

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