The issue once again became the center of public debate when an Islamabad-based US diplomat Colonel Joseph Emanuel Hall, working as defense and air attaché at the US Embassy, violated a traffic signal and hit a motorbike at an intersection in the federal capital resulting in the death of the rider Atiq Baig, 22, and injuries to Raheel, who was accompanying rider.
The diplomat was taken to a local police station, but later released after he claimed diplomatic immunity. The diplomat did enjoy immunity so we were mercifully spared the debate over whether or not he was entitled to it, but even then we had a range of stories from the diplomat’s attempt to flee the country being foiled by Islamabad Police, to a move for putting him on Exit Control List, and more lately an assertion that his immunity does not prevent a trial.
Much of this is happening not because people do not understand the concept of immunity provided by Vienna Convention on Diplomatic Relations (VCDR), which is applicable in this particular case – those in other countries may not either be having a better understanding of one of the oldest concepts of international law that dates back to ancient Greek and Roman governments - but it is due to its poor interpretation by officials and over-enthusiastic journalists, who are too keen to get a new angle into the story.
Dawn newspaper quoted a senior police official as saying, “A case was registered for the crime and there is therefore no doubt that a trial will be conducted. The diplomat has immunity regarding arrest and detention, but not against trial.”
That is in any case a very narrow view of VCDR. The immunities are listed in Articles 29 to 35 of VCDR and one of those Articles states that, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” Criminal jurisdiction means the power of courts to hear a case brought by a state accusing a defendant of the commission of a crime. This immunity is absolute, except for the qualifications mentioned in Article 31 of VCDR.
Therefore, it would be wrong to suggest that the trial is set to start. It creates wrong expectations among the people. Pakistan has to respect the immunities enjoyed by the diplomats under the international law and ignoring them may complicate our external relations. Moreover, as the entire system of foreign relations is based on the principle of reciprocity any move violating the immunity may cause problems for our diplomats posted in other countries, if they were to fall in a similar situation.
At the same time, it is also clear that immunity does not mean that the accused stands pardoned or exonerated and that he would not be held accountable for his actions – in this case violation of traffic rules resulting in death of a youngster. The immunity does not mean that the diplomats can disregard local laws.
In light of this situation, the senior police official quoted by the newspaper is correct. He has to adhere to police procedure and prepare a criminal case. But, from here onward the diplomatic exercise starts.
The Foreign Office would have to reach to the State Department through US Embassy in Islamabad and seek for waiver of the immunity enjoyed by the diplomat so that the charges could be brought up against him in the court of law. There is a complete procedure for seeking waiver described in VCDR and without getting that waiver, which must be explicit, the trial cannot start. The countries usually do not provide that waiver.
Since the charges here are serious, Pakistan should press for waiver of immunity and US as a responsible state should allow the trial to proceed for the offense committed by the diplomat.
It may not be enough for the US embassy to state that it “expresses its deep sympathy to the family of the deceased and those injured in a tragic traffic accident involving a U.S. Embassy vehicle on Saturday, April 7. Embassy officials are cooperating with local authorities who are investigating the accident”.
Pakistan government has shown that resolve, but it remains to be seen to what extent it can insist on that.
Foreign Secretary Tehmina Janjua told US Ambassador David Hale, when he was summoned to the Foreign Office to receive the protest that, “Justice will take its course in accordance with the law of the land and the Vienna Convention on Diplomatic Relations 1961”.
The Foreign Office should follow the precedent set by US in Amb Munir Akram case. Amb Munir Akram, during his tenure as permanent representative to the United Nations, was accused of assault in 2002/2003 and State Department sought waiver of his immunity so that the charges could be brought up against him. The charges were a month later dropped when the accuser recanted the allegations.
Pakistan has a case here. To quote the Interior Minister Ahsan Iqbal, “visibly traffic law was violated resulting in death of a Pakistani citizen.” Foreign Office must not shy away from seeking waiver of immunity and that is the way forward in the case.
In case the US Embassy refuses to waive the immunity, Pakistan would then be rightful in expelling the diplomat to express its displeasure.
The writer is a freelance journalist based in Islamabad
Email: mamoonarubab@gmail.com
Twitter: @bokhari_mr