Monday, February 21, 2011

Pakistan Appears to be Right, and the U.S. Wrong, on the Vienna Convention

By Mike Dorf  (substantially amended in response to a comment)

The diplomatic impasse between the U.S. and Pakistan boiled over with the breaking of the story that Raymond Davis, the American being held by Pakistani authorities on murder charges, was in the employ of the CIA.  Davis has been classified by the U.S. as "administrative and technical staff" but he is part of a task force that monitors (and takes or facilitates covert action against) militant groups in Pakistan.  Several weeks ago, Davis shot and killed two Pakistanis who, he says, were attempting to rob him.  Accounts of the exact circumstances differ, but there is agreement that after the shooting, another U.S.-based vehicle killed a Pakistani pedestrian while its driver was attempting to come to Davis's aid, i.e., presumably trying to whisk Davis away before the authorities arrived.  The rescue effort failed and Davis was arrested.  The U.S. has strenuously insisted that Davis is entitled to diplomatic immunity.  Thus far, the Pakistani government has resisted calls for turning Davis over to the U.S.  The case has caused a further deterioration of the already-frayed relationship between the U.S. and Pakistan, and angered many people in Pakistan who were already upset about U.S. policies like drone attacks on suspected militants.

What's the right legal analysis?  That may depend on what treaty applies.  Article 41 of the Vienna Convention on Consular Relations provides that "[c]onsular 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."  There may be borderline cases that raise the question of what constitutes a "grave crime," but certainly murder counts as one.  Of course, Davis could well have acted in self-defense, but under the treaty, if that's so, Pakistan is entitled to make his self-defense argument subject to adjudication in its courts.

Notwithstanding Article 41, Davis could perhaps be immune to prosecution under Article 43.  It provides: "Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions."  The problem here is that Davis does not appear to have been engaged in any consular functions.  He was engaged in intelligence operations while acting under cover of a diplomatic passport.  Or so it appears anyway.  Perhaps the U.S. has an argument that in fact Davis had a genuine consular position of providing security services for U.S. diplomats.  But the U.S. has not said anything like that publicly.

Another possibility is that the U.S. takes the position that the receiving nation must accept the sending nation's assertion that one of its nationals was engaged in the exercise of consular functions when arrested, and thus immune.  But this is a hard sell also.  For one thing, I haven't seen that the U.S. has made this claim.  For another, there is nothing in the text of the treaty that supports it.  And finally, I am nearly certain that we would reject such a claim if the shoe were on the other foot.  Suppose that during the Cold War a suspected KGB agent killed two Americans.  Would we simply have accepted the Soviet assertion that he was really engaged in performing some consular function?  Even if we ultimately released him to the Russians, that surely would have been the result of a political negotiation, rather than out of a sense of legal obligation.

But perhaps instead of the Vienna Convention on Consular Relations, the case is governed by Article 31 of the Vienna Convention on Diplomatic Relations, which provides: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State."  Davis isn't a diplomatic agent, but Article 37(2) extends the immunity of Article 31 to "[m]embers of the administrative and technical staff of the mission."  Here too, though, the U.S. position looks shaky if Davis isn't really part of the administrative or technical staff but is simply using that as a cover.  Once again, the U.S. might avoid that result if its designation of its staff were given conclusive weight, but it is not obvious that things work that way under the treaty.  Consequently, the bottom line is that Pakistan's legal position may be stronger than it has been portrayed in the U.S. media.

Finally, I should be clear that Davis may well be guilty of nothing more than having had the bad fortune to be robbed and having defended himself.  It's also quite possible that a trial in Pakistan would be unfair to him.  Thus, I have nothing against diplomatic efforts to secure his return.  That, however, is something quite different from the position that the Administration has repeatedly taken--that Pakistan has an obligation under international law to release him.


ThaneRehn said...

I believe the United States is pressing an argument based on the Vienna Convention on Diplomatic Relations, Article 31, which states that "a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." There is no exception in the Diplomatic Relations treaty, which affords a broader degree of immunity than the treaty on consular relations.

The relevant treaty is available here:

So the question would be whether he's a "diplomatic agent", in which case he's immune, or a "consular officer," in which case he's not immune.

Or, it's possible that he is neither. According to Pakistani officials, he was actually on a business visa, which would mean he's not entitled to diplomatic or consular immunity.

Michael C. Dorf said...

Thanks for the heads up. I've edited accordingly, thus rendering your comment a bit cryptic. (As you'll see from the updated version of the post, under the treaty you cite, staff also get the protection afforded to "diplomatic agents.")

Kevin Jon Heller said...

Hi Mike,

Great -- and necessary -- post. But I think you possibly overstate the case a bit when you write, with regard to Artice 31 immunity, that "[o]nce again, the U.S. might avoid that result if its designation of its staff were given conclusive weight, but it is not obvious that things work that way under the treaty."

The relevant provision is Article 39(1) of the Vienna Convention on Diplomatic Relations:

"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed."

What this means, I think, is that embassy designations are given conclusive weight as long as they are either (1) made prior to the individual entering the receiving state, or (2) the Ministry in the receiving state is formally informed of the individual's change in status.

From what I've seen, it seems unlikely that the US designated Davis an embassy employee before he arrived in Pakistan or informed the Ministry of his attachment to the embassy before the acts in question. But we will have to wait and see.

JP Andreas, Pres. A.C.L.P. said...

I also think you overstate the case against immunity based on what exactly Davis' "duties" were.

According to an article at Davis was hired to work for the embassy as a "security consultant," which even your post seems to admit would be legit.

Regardless, it seems to me that unless we were to embark into dangerous precedent-setting territory under WHATEVER treaty provision applies, we MUST allow foreign governments the latitude to classify their own embassy workers and support staff unless they in fact do NOT work for our diplomatic mission.
Moreover, many articles on this incident cite Davis' classification as an "embassy worker," and even your post concedes allowing for immunity under a classification of "administrative and technical staff," (in addition to working for "security," which would certainly be legitimate in conjunction with a related position with the embassy).
While it is true this case is shrouded in mystery, with the U.S. arguably choosing not to assert many details that could prove the "best defense" for its actions demanding immunity, I for one am willing to give the Administration the benefit of the doubt.
For all we know, Davis was working in line with broad duties entailed in "security" work for which he was hired, (which the post indicates could be legitimate), e.g., he could have been engaging in a legitimate security investigation into a plot to bomb the American embassy which might prove embarrassing for the already-embattled Pakistani government as well as raise even more anti-American sentiment (which could directly increase the risk of physical danger to those assisting and/or working with the American embassy).
Of course, Davis could have been actively involved in intelligence gathering or recruitment, but this would not necessarily vitiate Davis' legitimately working in a security or technical capacity.
Even if Davis WERE intelligence gathering, if there is one thing the Iranian revolution of the late 70's taught us, it is that such is necessary in this world where today's allies can be tomorrows enemies, and a little revolution CAN be dangerous;
As long as such efforts don't constitute actual spying or actively attempting to subvert the government the removal of immunity from prosecution for even serious crimes could be disastrous.

While you certainly may have a point re: double standards vis a vis American conduct in this area, even if true, the solution for that is for our country to more carefully abide by the same treaties, not allow others to violate them also.

Moreover, America is a modern democracy with a well-developed and largely independent judiciary with a strong dedication to procedural due process and the risk of an unjust outcome, is, all things considered, relatively small.

Not so in as chaotic a place as Pakistan, (where, while there is a system of laws, extreme local political and fundamentalist pressures might result in a pre-ordained outcome).

Thus, even accepting existence of such "double standards," I see no problem with allowing the political process in America to cure any such defects over time while insisting that Pakistan hand over Davis now. (In fact, Senator John Kerry has already assured the Pakistanis there will be a criminal investigation of the affair here if Davis is released, with appropriate punishment if warranted).

On the other hand, allowing the luxury of such latitude in the Mid-East, especially in this tumultuous time, could prove deadly, (certainly for Davis), and prevent the very fact-finding and judicial processes necessary to determine whether criminal culpability exists.

That's a risk I just don't think we can afford.

Michael C. Dorf said...

JPA: Most of what you say argues for diplomatic efforts to secure Davis's release through diplomatic channels, regardless of whether Pakistan is under a legal obligation to release him. As I said, I don't disagree with pursuing such avenues of relief. (I would note parenthetically that Pakistan's courts have generally been among its better-functioning institutions, with a tradition of independence; that is why Musharraf was subject to protests when he attempted to sack CJ Choudhary.)

As to the treaties themselves, we also seem to be in agreement: IF Davis had actual duties related to the diplomatic mission, he's protected, but the news stories, especially those in the Guardian and the Times yesterday, pretty strongly indicate that he did not. Perhaps the U.S. is holding back info about legitimate diplomacy-related activities, but that strikes me as quite unlikely. Still, as Kevin Jon Heller says in his comment, we will have to wait and see.

JP Andreas, Pres. A.C.L.P. said...

Prof Dorf: Fair enough. We shall indeed have to wait and see. jp

usdpwbs said...

There is no question that the immunity is narrower under the Consular Convention than the Vienna Convention. And I believe I read that at one point the US authorities in Pakistan claimed that Davis was a consular, not a diplomatic, employee, and that error (if it was one) complicates matters a good deal.

But if one assumes, for purposes of argument, that Davis was a diplomatic employee, and therefore immunity is determined by the Vienna Convention, it seems to me there is a strong argument that the sending state's representation should be accepted as determinative. (This is consistent with the provision about notification.) The whole idea of immunity would be badly undermined if the receiving state had the right to examine what a diplomat's "real" duties are. Of course, gathering intelligence (or at least certain forms of it) is likely to be illegal under the law of the receiving state, but the point of immunity is that diplomats are not subject to the domestic law of the receiving state. And it is certainly the universally accepted practice that properly invoked diplomatic immunity extends to officials whose "real" job is intelligence gathering that is clearly illegal under the receiving state's domestic law. There is a good deal of Captain Renault-style "shock" at the idea that a "diplomat" is really doing spying. In any case, the line between "normal" diplomatic activities, which certainly include keeping track of what is going on around you, and "spying" will often be uncertain. Moreover, there will often be other, non-spying, activities -- e.g., associating with dissidents -- that the receiving state claims are "inconsistent with diplomatic status."

These issues come up from time to time in the District of Columbia. The converse of your suggestion that this controversy might be better handled as a matter of negotiation rather than law is that the immunity is not personal to the diplomat, but can be waived by the sending state. So where the offense is pretty blatant (especially if it has nothing to do with any official duties) it may well be the better course to waive immunity, even if it is hard on the diplomat involved.

By the way, my impression is that intelligence people under diplomatic cover are generally required to actually perform some cover activity, e..g, process a few visa applications every week. Presumably this is to bolster the bona fides of their diplomatic (or consular) status.

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