Pretty much, unless your own government gives you up.
- By Joshua E. KeatingJoshua E. Keating was an associate editor at Foreign Policy.
The U.S. government has launched a high-profile effort to secure the release of Raymond Davis, a staff member at the U.S. embassy in Islamabad, who was arrested in late January for the fatal shooting of two Pakistani men in Lahore.* Davis’s job at the embassy and why he was carrying a gun is still unclear. The Lahore police department has not yet filed charges but is treating the case as a murder, and demonstrations have been held demanding Davis’s prosecution. Davis claims that he acted in self-defense after one of the men, brandishing a weapon, approached his car on a motorcycle. According to the United States, Davis, as a member of the embassy’s staff, enjoys diplomatic immunity from prosecution. Does he?
Most likely, yes. The rules concerning diplomatic immunity are set forth in the 1961 Vienna Convention on Diplomatic Relations, which has been agreed upon by 187 countries — including the United States and Pakistan. The treaty states clearly that diplomatic agents including "the members of the diplomatic staff, and of the administrative and technical staff and of the service staff of the mission" enjoy "immunity from the criminal jurisdiction of the receiving State." They also enjoy immunity from civil proceedings unless the case involves property or business interests unrelated to their diplomatic duties.
The U.S. Embassy has still not revealed what exactly Davis’s job involved, but argues that, even though he was technically a contractor, he falls under the category of "administrative and technical staff." After some early resistance, Pakistani legal scholars appear to be coming around to that view as well, though the high court still needs to rule. Sen. John Kerry has traveled to Pakistan to meet with officials about the case, and millions of dollars in U.S. aid may hang in the balance for Islamabad.
(Update: It was reported on Feb. 21 that Davis had been working for the U.S. Central Intelligence Agency while in Pakistan. The State Department maintains that since he was notified as a member of the embassy’s "administrative and technical staff" when he entered Pakistan, he still enjoys immunity.)
Lethal Weapon 2 notwithstanding, host countries don’t have much recourse against visiting diplomats who violate their laws. Just ask New York City, which has tried in vain for years to recoup millions of dollars in unpaid parking tickets from U.N. diplomats.
Even for serious crimes, the most a country can generally do is expel the offender. That’s what Britain did in late January with Anil Verma — a high ranking Indian diplomat in London who is accused of brutally assaulting his wife on multiple occasions. Verma is still an employee of the Indian Administrative Service, and it’s not yet clear whether charges will be filed against him in India.
A diplomat’s home country can waive his diplomatic immunity in particularly egregious cases. In 1997, Gueorgui Makharadze, formerly the second-highest-ranking diplomat at the Georgian Embassy in Washington, had his diplomatic immunity waived after he killed a Maryland teenager in a drunk driving accident. Makharadze had gotten out of a drunk-driving charge the previous year by claiming diplomatic immunity. He was sentenced to 21 years in prison and was later transferred to Georgia to finish his sentence.
Violations of the Vienna Convention are extremely rare — the 1979 Iranian hostage crisis was one exception — because countries are usually reluctant to put their own diplomats at risk. Despite the crowds calling for his blood, Davis likely has a good chance of getting out of this one without spending much more time in the Lahore slammer.
*Correction: The original version of this piece inaccurately described Davis as an employee of the U.S. consulate in Lahore.
Thanks to Peter Spiro, professor of law at Temple University and blogger at Opinio Juris.