ICJ: to be or not to be

It is safe to assume that two schools of thought vis-à-vis resolution of Raymond Davis issue have emerged in Pakistan. For the first school, a certificate from our foreign office certifying Raymond Davis as a bona fide diplomat in Pakistan should suffice. The second school of thought however is of the opinion that the final arbitrator of Raymond’s true status is the court. However, a third nascent thought is being emerged as well. For the proponents of this thought, at the heart of the matter is the issue of interpretation of international law(s) regarding a diplomat’s immunity. Since the matter is so politicized, they say, only an international organization i.e., the International Court of Justice (ICJ) could independently interpret the law(s) in its advisory capacity. It is however easier said then done.
The way the Americans have conducted themselves from the outset clearly betrays one thing, they are in a rush. For this reason alone, they have exerted relentless pressure on our government to let Raymond go free under the pretext that he is a diplomat. Although the Americans too have recently started to say that they might be taking the matter to the ICJ, but given that it is a time consuming procedure, it is unlikely. This may be another pressure tactic on their behalf.
The notion that Pakistan as a sovereign state may approach the ICJ for an opinion is misplaced. The ICJ under Chapter IV of ICJ Statute and Article 96 of the UN Charter is competent to give an advisory opinion on any legal question at the request of any body duly authorized by the UN. Duly authorized bodies are the UN’s General Assembly, the Security Council, the International Atomic Energy Agency etc., but not any nation state. However, if anyone of the mentioned bodies takes up this matter with the ICJ then Pakistan certainly can become a party to the proceedings. But given the bilateral nature of the issue and the U.S., penchant for unilateral and at best bilateral approach for solving international disputes, it is unlikely that UN would take up this matter on behalf of Pakistan. An opinion of the ICJ moreover is just an opinion with no binding force. Although, the more recent opinions like Palestinian Wall Advisory Opinion read very much like judgments, nevertheless, a state cannot be punished per se if it does not follow the stipulations of the opinion.
An alternative course would be to approach the Court not for its advisory opinion but a binding decision. The Court under Article 36(1) of the ICJ Statute ‘all matters specifically provided for….. in treaties or conventions in force’, may adjudicate upon an issue brought before it involving signatory parties. Since both the U.S. and Pakistan are signatories to the optional protocol to the Vienna Convention on Diplomatic Relations (1961) the Court is empowered to take up Raymond Davis type issue. But the Court based in Peace Palace, Hague, works like any other court. The proceedings may not be speedy and economical. The outcome may not be of our liking.
It is pertinent to speculate what the other party i.e., the U.S., may make of the ICJ decision. The American judicial mindset could be gauged by the case of Medellin v Texas (2008), in which the United States Supreme Court in 6-3 decision overturned ICJ decision in Mexico v United States (Avena case—2004) as not binding federal law. This case, involved Vienna Convention on Consular Relations (1963). If a decision favours us then it would inadvertently affect rights and duties of the U.S. However, the changed circumstances would have no affect in the U.S., till new legislation is passed in the U.S. giving those changes a legal cover. By that time, precious time and money of Pakistani tax payers would have been wasted if not squandered, with our relationship vis-à-vis the U.S. standing on much shakier ground. All in all, no benefit to an average Pakistani.
If an international forum must be utilized, it should not be the ICJ but arbitration, where both the U.S. and Pakistan would have a greater control over the entire proceedings. Again, arbitration could both be costly and time consuming.
The best option is what the first school of thought proposes. It puts the proverbial ball in our foreign office’s court. It could be speedy and economical. But political will to take a decision, albeit admittedly difficult, is required. Does this government have what it takes? I hate to admit it, but it is not a million dollar question anymore.

Raymond 'the diplomat' Davis

Just when we thought we’d hit the rock bottom and it couldn’t get any worse with double-digit inflation, increasing unemployment, rising incidents of terrorism in urban areas once again, being forced to watch the not so pretty but buffoonish politicians with an IQ of an ant on tele daily, with an unsavoury topping of pot bellied maulivis’, (I have an endless list), along came Hon’ble Raymond ‘the diplomat’ Davis (hereinafter referred to as good old ‘Ray’; Americans have a knack for short names ya know). Whether this is his real name or not (Christians usually have three names; first, middle and last) is immaterial. Even if his name was John Paul Sartre he would still be hated in Pakistan for what he has done! Deep down we all know, despite the hullabaloo on Mall Road and what not, that he’ll be set free by those under oath to protect us from internal and external enemies. The concept of diplomatic immunity unsettles us. In a perverse way, it seems anti Pakistan (for our tree-hugging liberals) or anti Islam (for our fire-breathing mullahs). It is simply mind boggling to us as to why a person who shot two of our own could get away without a scratch on his body. Whether those two had a previous criminal history is immaterial as well. Would we have accepted Ray’s plea of self-defense if the two were making their debut in the world of crime? No, off course not. Antecedents matter in determining the propensity to commit crime and at the sentencing stage, not in broad day light on the intersection of Ferozepur Road and Jail Road!
The print and electronic media too has colored our mood gray. It is being shoved down our throats by media pundits that synonym of diplomatic immunity is blanket immunity. This is simply not true. Even if his Excellency Ambassador Cameron Munter had gone commando on the two, a case could have been made against him under the Vienna Convention (1961) to try him if only in the US. In the alternative he could have been granted persona non grata and asked to leave the country (well may be this remedy is available to only self respecting nations!). The point being that a loud and clear message would have been sent to him. Now why is that? By now, those amongst us who are glued to the tele have become kind of an expert on diplomatic immunity and have accepted the mantra of blanket diplomatic immunity and hence reconciled with the fact that nothing legally could be done against Ray, right? Wrong. I bet your favorite talk show host didn’t quote you the Preamble to the Vienna Convention on Diplomatic Relations 1961 which expressly states, ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions in representing states’. I’m actually gonna cut Ray some slack by assuming that he worked in Islamabad and not Lahore. Yes it matters. If he was working for the consulate he enjoyed less of immunity then his colleague working for the embassy. But even then under our favorite Convention’s Article 31(1)(c), Ray would enjoy immunity from the criminal jurisdiction of Pakistan EXCEPT when he acts outside of his official functions (I think it is safe to assume that killing Rambo style was outside Ray’s official functions!). Further, Article 31(4) further provides justice to the people of Pakistan and especially to the families of the deceased by stating that if Ray could not be prosecuted or tried in Pakistan it does not mean that he could not be prosecuted or tried for the same crime in the US. Although Article 41 of the Convention is without prejudice to the privileges and immunities enjoyed by Ray, it makes it incumbent on him to obey and respect the laws of our nation (carrying a firearm illegally, not much respect for our laws, was it?). In addition, Article 32 of the Convention empowers us to ask the US to waive Ray’s immunity so that he could be tried here (probability of that happening, snowball in hell, but still…). So all in all, the concept of diplomatic immunity enshrined in the Vienna Convention is not all that bad of a deal for us Pakistanis’ if only it was to be followed in letter and spirit!

Unfortunately nation states practice the concept of blanket diplomatic immunity not as a dictate of international law, but due to political expediency. We too will let go of Ray not because we are dying to follow international law but because by scratching the American (or American’s) back today, we expect to be scratched by them tomorrow in case one of our diplomatic corps guy goes ‘naughty’ in the US. Remember Munir Akram and his Eastern European ladylove! Oh yes and one more reason folks, we like the almighty $. Very very much.