ON May 17, 2018, in a weekly media briefing, the spokesperson for the Ministry of Foreign Affairs Mohammad Faisal stated that “[t]he United States government has assured [the government of Pakistan] that a probe will be initiated against defence and air attaché Colonel Emanuel Joseph”, the US diplomat who ran a red light to ram into a motorcycle killing one Pakistani citizen and injuring two others.
This was a remarkable statement given that there has been no official statement from the US government corroborating this position, no just outcome for the family of the victims, and no guarantee that the ‘probe’ the foreign affairs ministry was assured of would be conducted would even result in any form of accountability for Col Hall.
That US diplomatic personnel operating in Pakistan enjoy a veritable carte blanche is hardly news; one of the authors has already written on similar instances in the past, where US diplomatic personnel have escaped prosecution for killing Pakistani citizens in traffic accidents. In this regard, the 2011 killing of two men by Raymond Davis is also particularly telling given the fact that Davis was, at the time, not even a member of the American diplomatic corps but was, instead, an undocumented CIA contractor and as such, not entitled to the protections accorded to diplomats under the 1961 Vienna Convention on Diplomatic Relations. If Davis, a non-diplomat, could escape prosecution for a double homicide, the Foreign Office’s assurances that Joseph will face any sort of consequences ring hollow.
The Foreign Office must do more to ensure Pakistanis’ rights, abroad and at home.
The Vienna Convention grants immunity to diplomatic personnel of the sending state from prosecution before the courts of the host state. This immunity, however, is not synonymous with impunity: the preamble of the convention explicitly states that the privileges and immunities it confers are not to benefit individuals but are, instead, intended to ensure the “efficient performance of the functions of diplomatic missions as representing states”. It is in this context that diplomatic immunity operates, with Article 41 of the convention providing that “[w]ithout prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities [accorded under the convention] to respect the laws and regulations of the receiving state”. This does not, however, mean that the host state is powerless to respond to criminal behaviour on the part of diplomatic personnel, but rather that simply prosecuting offending diplomats will often lead to outcomes such as we’ve seen with US ambassadorial staff in the recent past.
That Joseph enjoys diplomatic immunity under the applicable international law is not in question; the focus, however, should not be on whether or not he enjoyed this privilege, but rather on the failures on the part of the government — and more particularly the Foreign Office — which have lead to these instances becoming alarmingly systemic. Pakistan had at its disposal any number of options with which to obtain credible assurances from the US government that justice would be done and Joseph be made to face the consequences for his actions. Indeed, the immunity he enjoyed as defence and air attaché in no way precluded Pakistan from negotiating with the US to have the immunity waived under Article 32 of the Vienna Convention.
Moreover, Pakistan was fully within its rights to negotiate for a bilateral prisoner transfer arrangement, whereby Joseph could have been sentenced in Pakistan and subsequently allowed to serve his sentence in the US; something which Pakistan had unsuccessfully attempted with Aafia Siddiqui, despite tremendous domestic pressure to do so, even when she did not commit a crime on US soil and was instead illegally renditioned to the US to stand trial.
The US itself attempted to do the same with Shakil Afridi, the doctor who helped American authorities confirm Osama bin Laden’s presence in Abbottabad. India too is vociferous in maintaining pressure on Pakistan to pursue criminal proceedings against the suspects linked to the 2008 attacks in Mumbai. Despite the fact that the proceedings are occurring in Pakistan, India nonetheless remains vigilant in effecting its own vested rights in order to achieve justice for its citizens.
Though the US wields significant influence internationally, it is not unprecedented for it to concede on the point of diplomatic immunity. As has recently been written on, following a series of sexual assaults by US military personnel stationed in South Korea, the US has allowed its soldiers to be tried before South Korean courts. Similarly, while it did not waive his immunity, the US nonetheless court-martialled a marine stationed at its embassy in Romania for killing a Romanian citizen while drunk-driving.
While other countries, operating within the purview of international law, exercise all options available to them in order to protect the rights of their citizens it unfortunately seems that the Pakistan government is instead defensive and attempting to deflect negative public sentiment.
A greater appreciation for international law would go a long way towards ensuring that such unfortunate incidents are not repeated. Further, the Foreign Office needs to do more to ensure the rights of Pakistani citizens — not only overseas but on Pakistani soil as well. Simply because Joseph enjoyed diplomatic immunity does not mean that Pakistan was entirely without options, albeit diplomatic as opposed to legal ones.
Allowing US diplomats to run roughshod over the people of Pakistan does little to project Pakistani interests overseas, and rather leaves the Pakistani diplomatic corps seem quite toothless. A Foreign Office that is all too willing to cave in to foreign pressure, when Pakistani citizens have lost their lives to cavalier diplomatic personnel, is hardly a credible international representative of the people of Pakistan.
Sikander Shah is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School.
Abid Rivzi is an expert on international law.
Published in Dawn, July 2nd, 2018