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Balancing parking tickets against murders

February 10, 2011

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US Secretary of State Hillary Clinton — AFP photo

For the US Secretary of State, Hillary Clinton, a parking ticket violation is more atrocious than a murder. As a junior senator from New York, Mrs. Clinton wanted to revoke the diplomatic immunity for scofflaw diplomats who were stationed at the United Nations in New York and had racked up $21.3 million in parking violations. As the Secretary of State, however, she is invoking diplomatic immunity for Mr. Raymond Davis, who is accused of murdering two young men in Lahore.

It is hard to understand Mrs. Clinton’s logic who on one hand was not willing to excuse foreign diplomats accused of parking violations in New York.  "The flagrant disregard for parking regulations has had serious ramification for the safety and quality of life for New Yorkers," she argued in a letter in 2002. On the other hand, she would like an American contract worker, who claims to be a diplomat, to be granted immunity from prosecution for murdering two youths.

In 2004, Mrs. Clinton and the senior senator from New York, Charles  Schumer, presented a Bill that advocated cutting foreign aid to countries who owed unpaid parking fines to the City of New York.  Senator Clinton was obviously incensed by the fact that diplomats were abusing their privilege. Diplomatic immunity was never intended to allow diplomats to violate traffic laws of the host country, or for that matter, commit murders.

She registered her discontent with diplomatic immunity and argued that it was not “acceptable for foreign diplomats and consular officials to hide behind diplomatic and consular immunity to park in illegal spaces in New York City and avoid paying parking tickets. It is my hope that this legislation will ensure that the City gets the money that it is owed.” Senators Clinton and Schumer were successful in amending the 2005 congressional Foreign Operations Bill in the Senate that froze foreign aid to countries by amounts they owed New York City in parking ticket violations and unpaid property taxes.

I am not suggesting that parking violations could or should be ignored. As a professor of transport management, I understand how illegally parked vehicles impede traffic, cause congestion, and cost billions in lost productivity. In fact, in 2006 when the US Embassy in London racked up over £1 million in unpaid congestion charges, the peeved Mayor of London, Ken Livingston, called the American ambassador Robert Tuttle, who owned a car dealership and raised $200,000 for President George W. Bush’s election campaign,  a ‘chiselling little crook’.

What I do not understand is how can one justify waiving diplomatic immunity for a misdemeanour, i.e., a parking violation, and insist on invoking it for violating the sixth commandment, thou shalt not kill, for a person whose diplomatic credentials are dubious at best, and whose culpability is beyond doubt.

Granting Mr. Davis diplomatic immunity will deny the judicial system in Pakistan the opportunity to determine the circumstances that lead to the two murders. The courts need to establish if Mr. Davis is indeed a diplomat, and not a contract worker or a mercenary employed by the US consulate in Lahore. The courts need to determine that if Mr. Davis were a diplomat, where was he stationed in the past or what school he attended to prepare for a career in foreign diplomacy. The courts need to ascertain if he indeed was acting in self-defence when he shot the two men riding away on a motorbike through the windshield of his car. The courts need to determine if he indeed was on diplomatic business at the time he shot the two men.

I have spoken with senior Pakistani diplomats in North America who have confirmed that Mr. Davis was issued an official business visa, which is reserved for contractors and lower-level staff serving in foreign missions in Pakistan. This does not make Mr. Davis eligible for diplomatic immunity in the first place.  I contacted Ambassador Hussain Haqqani in Washington, DC, to determine the status of Mr. Davis’ now controversial visa. Mr. Haqqani has chosen not to respond. I have, however, enjoyed better correspondence with Ambassador Haqqani when he was a fellow academic.

While the US has always by default demanded immunity from prosecution for its diplomats serving in foreign countries, she has been stingy in reciprocating the favour. When the shoe is on the other foot, the US administration reacts completely in the opposite. Instead of honouring diplomatic immunity, it pressures countries to waive diplomatic immunity for the diplomats accused of wrongdoings in the United States.

In 1987, a car driven by the ambassador of Papua New Guinea, Kiatro Abisinito, hit four other cars in Washington, DC. The ambassador invoked diplomatic immunity. However, the US Attorneys prepared a criminal case against the ambassador for operating a vehicle while being intoxicated.

Consider the case of Georgian diplomat, Gueorgui Makharadze, who in 1997 killed a 16-year old girl in a fatal traffic accident in the US. The diplomat invoked diplomatic immunity and was ready to leave when the Georgian President, Eduard Shevardnadze, ordered the diplomat to stay in the United States and face criminal charges. Mr. Makharadze was convicted by a court and served time in an American prison.

Pakistan will not be the first country to question the doctrines of diplomatic immunity in cases where diplomats have been accused of not just misdemeanours, such as parking violations, but are accused of heinous crimes, such as murder. Former US Secretary of Defense, Caspar Weinberger, pointed out circumstances that warranted “limits to the doctrines of diplomatic immunity.” While addressing a conference organized by the American Bar Association in June 1986, Mr Weinberger unequivocally declared that a “diplomatic title must not confer a license to murder.”

Several American legislators have tried to restrict diplomatic immunity in cases where diplomats were accused of serious crimes, such as murder and rape.  In 1984, Senator Arlen Specter presented a Bill to renegotiate the Vienna Convention to eliminate diplomatic immunity for diplomats accused of murder. Later in 1987, US Congressman Stephen J. Solarz introduced a Bill to limit the diplomatic immunity, which he termed untenable and unacceptable to grant to those accused of murder.

While the American public representatives have tried to restrict diplomatic immunity for others, they have fought tooth and nail to seek immunity for their own diplomats when they stood accused of committing serious crimes. There are several examples of American diplomats leaving without trial even after being accused of committing murders. According to New York Times' archives, a US Embassy employee, Martha D. Patterson, was accused of complicity in poisoning to death a USSR citizen in July 1977. Ms. Peterson was freed however after she invoked diplomatic immunity.  Later in 2002, Samuel Karmilowicz, an employee with the US Embassy in Quito, Ecuador, shot and killed an Ecuadorian national Pablo Jaramillo after crashing his car into the taxi carrying Mr. Jaramillo. The American diplomat left Ecuador soon afterwards invoking diplomatic immunity.

It is however, not without precedent that a country revoked diplomatic immunity for diplomats of other countries. In 1944, England cancelled diplomatic immunity for foreign diplomats and their staff. Only diplomats from the Commonwealth countries, the Soviet Union and the United States were permitted to retain diplomatic immunity.

In 2002 in England, the Colombian Embassy waived diplomatic immunity for a sergeant-major and his son who were caught on CCTV stabbing to death a 23 year old man outside a supermarket in West London. Initially, the Colombian diplomat, who was an assistant to the Colombian military attaché, and his son were granted immunity from prosecution. The Colombians claimed that they acted in self-defence after being mugged by the deceased. The Colombians were however acquitted of murder by a British court after it was established that they indeed acted in self-defence.

It is also not without precedent that the US government has waived immunity for its diplomats or contractors employed by the US foreign missions. In 1995, the US government waived diplomatic immunity for David Duchow, a contract employee with the US embassy in Bolivia, who was accused of stealing a truck-load of fuel. Mr. Duchow in retaliation sued the US government for waiving his diplomatic immunity.

Indulge me for a second and imagine if the situation was reversed and a Pakistani diplomat stood accused of shooting to death two young men in SoHo, New York.  Given that Mrs. Clinton was unwilling to pardon diplomats accused of parking violations, it is highly likely that she would have opposed granting immunity to a Pakistani diplomat accused of committing multiple murders in broad daylight and in the presence of dozens of eye witnesses. She would have insisted that the true identity and the status of the accused be first determined. She would have wanted the US courts to determine if the Pakistani diplomat acted in self-defence or was he a trigger-happy fellow who got spooked and started shooting. She would not have allowed the Pakistani diplomat to touch the tarmac at the JFK Airport.

I also wonder how President Obama would react in this situation. Would he be as statesmanlike as the former Georgian President Eduard Shevardnadze and instruct Mr. Raymond Davis to stay in Pakistan and plead his case in a court of law. Or would Mr. Obama choose to be more like the Russian Prime Minister, Vladimir Putin, who refused to waive diplomatic immunity for a Russian diplomat stationed in Canada who in 2001 killed one woman and injured another while driving a car while being intoxicated?

Given Mr. Obama’s recent foreign policy choices, I see more of Putin in him than a statesman.

Murtaza Haider, Ph.D. is a professor of supply chain management at Ryerson University in Toronto. He can be reached by email at murtaza.haider@ryerson.ca.