Daily Times

The successful adoption of the Vienna Convention on Diplomatic Relations is famously hailed across the globe as the landmark of highest significance when it comes to the codification of international law. It was marked as the first significant codification of any international instrument ever since the United Nations was established.

The preamble to the Vienna Convention reflected the international concern of giving unlimited immunity to all classes of diplomats. Together with the Vienna Convention on Consular Relations these two instruments systematised for the first time all rules and regulations governing the immunities and privileges available to foreign officials. However, despite this development, the scope of diplomatic protection offered there under has faced several controversies in the modern international diplomatic setup, with privileges being misinterpreted and laws being handcuffed. Further complications arise with the evolution of new criminal trajectory and lack of collective goodwill from national together.

In recent times, there has been a growing tendency amongst diplomats to abuse their privileged status by committing acts prohibited by law and still claiming immunity from legal processes. In cases of grievous crimes such as murder, rape and conspiracy including war crimes, the immunity nowhere stands for impunity and hence the question over absolute liberty arises, as a trial in the home state often goes through multiple hurdles.

Recently, a massive critique surfaced across the nation when Ateeq Baig, a 22-year-old boy, lost his life due to the reckless driving of Colonel Joseph Hall who was serving as the defence and air attaché at the US Embassy in Islamabad. Sadly, this was not the first time that a US diplomat had killed a person in the federal capital following a road accident. What is more regrettable is that the US diplomats in Pakistan continue to get away with it under the guise of diplomatic immunity.

This reflects distinct echoes of the Raymond Davis case, which involved American CIA Agents chasing alleged robbers and disrespecting traffic laws, leading to the deaths of two Pakistani men. Even though the Obama administration in a controversial move claimed Davis as their diplomat, it was later revealed that Mr Davis was neither a diplomat nor covered by diplomatic immunity.

The diplomatic immunity law itself is able to foresee the possibility of its abuse and hence specifies the means at the disposal of the receiving state to counter any such abuse

And as time passes by, ‘Diplomatic Crime’ in Pakistan is increasingly becoming an everyday phenomenon. Only some specific crimes which catch the attention of media agencies are brought to the limelight, whereas several remaining cases are strategically gutted down and shielded with bureaucratic influences.

The issue here is not whether the immunity has some sort of defect. Instead, the more significant problem is when this immunity seems to reveal a state of impunity, caring least about neo global rule of law and its thin notions to check the corrupting powers of high-end authorities. Perhaps safety and security of all should be the more prominent concern in the bigger domain of Universal Human Rights and not to those selected few individuals, moving in red beacon and tinted glass vehicles.

This does not mean that the convention has lost its core point and should be ignored completely. Its importance can never be undermined. Rather, what is required is a revisit, a necessary change within continuities to bridge the negative voids created out if its regular abuses.

Hence, given the grounds for numerous cases that have been occurring rapidly, there are a few suggestions worth emulating. First, the clauses of Art 41 of the convention should be diligently reinterpreted and be made harsher if required, to ensure that respect for the rule of law and regulation of the host state is made legally compulsory. Second, the United Nations should establish new guiding principles that could preserve the basic concept of diplomatic immunity, while at the same time defining reasonable limits as to who is rightfully entitled to this immunity.

This should further be addressed through international debate by not only scholars and lawyers but victims of diplomatic crime. Third, a Permanent International Diplomatic Criminal Court should be established with mandatory jurisdiction over diplomats accused of committing criminal acts. There are several advantages to this proposal. The court would not only be free from the potential bias of local proceedings, but also the use of a court outside a bilateral relations structure would preclude the termination of diplomatic relations in extreme cases. And lastly, there should be a provision of binding international acceptance of mistake, according to which the same diplomat should not be allowed to work anywhere till the trial gets a verdict.

These proposals aim to ensure efficient check for those who infringe the mission ethics at global level diplomacy. It is noted that the diplomatic immunity law itself is able to foresee the possibility of its abuse and hence specifies the means at the disposal of the receiving state to counter any such abuse. This includes the declaration of persona non grata and the waiver of privileges and immunities by the sending state.

That being said, it is suggested that the process of interpretation should be guided by the theory of functional necessity, which is actually embodied in the Vienna Convention. It aims to stress upon the object behind diplomatic protection which is to ensure the efficient performance of the functions of diplomatic missions as representing states and not because the diplomat is the representative of another sovereign.

As per the “equality before the law” perspective, this immunity seems highly unjust not because it aims to protect diplomats at foreign land with special privileges, but because it often goes beyond its limit to encroach other’s life and dignity. There is no doubt that the Vienna Convention on Diplomatic Relations was indeed the pathfinder. However, the time has now come, to revisit changes according to required global demands.  An effort towards a revisited convention would prove to be sustainable for both the nation concerned and the victims. In the end, it is suggested that effective, pragmatic policies need to be devised so that a robust mechanism for dispute settlement is builtin to the framework of Vienna Conventions.

The writer graduated with an LLB Hons, University of London International Programmes. Twitter @fizzaalik

Published in Daily Times, April 19^th 2018.