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Davis case may end up in ICJ
Posted By From the Newspaper On February 24, 2011 @ 3:01 am Karachi time (3 hours ago at 6 PM Feb 23 ET - New York time) In Home > Top Stories,Latest News,Newspaper > Front Page,Pakistan > Top Stories | Comments Disabled
"There is an optional protocol to Vienna Convention on Diplomatic Relations (VCDR)… under which there is a provision for the dispute to be notified to the International Court of Justice,” a diplomatic source said. — Photo by AP
ISLAMABAD: The lingering dispute over immunity for jailed US official Raymond Davis [1], accused of double murder, may end up at the International Court of Justice if efforts to resolve the matter diplomatically and bilaterally fail.
Although the US has been insisting that it is focused on bilaterally settling the row, sources suggest that the dispute [2] could be referred to the ICJ.
“There is a dispute resolution mechanism. There is an optional protocol to Vienna Convention on Diplomatic Relations (VCDR)… under which there is a provision for the dispute to be notified to the International Court of Justice,” a diplomatic source said on Tuesday.
Both Pakistan and the US are signatories to the ‘optional protocol’ to the VCDR.
Another route for ending the controversy could be arbitration.
Prime Minister Yousuf Raza Gilani told the National Assembly on Monday that the two countries continued to differ on the interpretation and applicability of international and national laws in the case.
The government last week requested the Lahore High Court, hearing petitions challenging Davis’s immunity, for more time to certify his status.
Indecision on part of the government has added to confusion in the case, but it is widely speculated that delaying tactics [3] are being employed to provide the US embassy and the victims’ families an opportunity to reach a compromise.
A reference to the ICJ in a dispute over immunity is rare and the only precedent is that of the 1979 Iranian hostage crisis.
“States realise that they have to work it out together,” the diplomatic source said.
The VCDR’s optional protocol had mandatory jurisdiction and the ICJ “decision will be binding on the states”, said the sources, who is an expert in international law.
“It will be the responsibility of the state concerned to bring its actions in conformity with international law,” the expert stressed.
Meanwhile, a US embassy official questioned the jurisdiction of Pakistani courts to criminally prosecute Davis.
“Since he enjoys immunity the matter shouldn’t have been in the court in the first place,” the official said, adding that Pakistani courts didn’t have jurisdiction to hear his case.
[4]
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URLs in this post:
[1] Raymond Davis: http://www.dawn.com/2011/02/04/timeline-the-raymond-davis-case.html
[2] the dispute: http://www.dawn.com/2011/02/23/cia-link-does-not-affect-daviss-immunity-us.html
[3] delaying tactics: http://www.dawn.com/2011/02/03/court-extends-remand-of-raymond-davis-in-shooting-case.html
[4] Image: http://www.addtoany.com/share_save
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Issues according to The New York Times/Wires Excerpts
Pakistan Case Tests Laws on Diplomatic Immunity
By CHARLIE SAVAGE
WASHINGTON ... Can Pakistani officials lawfully prosecute him for murder?
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.
...Obama administration officials, (claim) 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 (and confused info) from the US State Department in the first days after Mr. Davis’s arrest.
(Was Davis a 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, Davis was described as a staff member for the US Consulate in Lahore.
Days US said Mr. Davis was(instead) listed with the administrative and technical staff of the US Embassy in Islamabad — and that it had formally notified the Pakistani Foreign Ministry of his status there on Jan. 20, 2010. (after the crime)
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...
(another is the doubt as to whether Davis was his real name)
“This is all just a sideshow,” said John Bellinger, a State Department lawyer in the administration of President George W. Bush.
...Perhaps the most notable exception (to the usual expelling of such an "official" 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....
Jane Perlez and Salman Masood contributed reporting from Islamabad, Pakistan.
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