By Tanvir Ahmed Siddiqui
We as a nation are living through unspeakable tragedies and exploitations though as a nation we are now immune to all kinds of tragedies. Immunity is the latest form of exploitation that is being applied on us. We were yet not over with joys of PRESEDENTIAL IMMUNITY that is being applied on us as a License to Corruption. Now a latest shot of immunity is DIPLOMATIC IMMUNITY as a License to Kill. This immunization syndrome is another fruit of that tree of civil rights and liberties in modern world.
KINGS CAN DO NO WRONG: “Magna Carta also known as Magna Charta is part of the un-codified but time to time modified constitution of England since 1215 & 1297. This Charta at face is considered in the modern world as a great charter to protect and guarantee civil rights and liberties and limits to the powers of King. But its continued abuse since colonial rules actually protected liberties and offered immunities to Royals, Barons, Bishops, Abbots and Nobles to ensure their r external and internal affects and influences. To my understanding Diplomatic Immunity as a black law is an offshoot of same mindset and abuse of Magna Carta mainly to strengthen colonial rule not only in sub-continent but also in other domains of British Raj.
As per Wickipedia encyclopedia:Diplomatic Immunity is a form of Legal Immunity and policy which ensures that diplomats are given safe passage and considered not susceptible to lawsuit or prosecution under the laws of host country’s land. Diplomatic immunity as an institution developed to allow for the maintenance and sustenance of Govt relations during periods of difficulties even during armed conflicts. The British parliament first guaranteed immunity to foreign ambassadors in 1709, after Count Andrey Matveyev a Russian resident in London, had been subject by British bailiffs to verbal and physical abuse. Various events in ancient times clearly indicate in the history that European Monarchs at the time did not consider foreign ambassadors to be immune from punishments. <Ref:>
In reality, most diplomats are representatives of nations with tradition of professional civil service are expected to obey regulations governing their personal behavior and must remain ready to suffer strict internal consequences / disciplinary action if they flout local laws. Professional diplomacy considered as compromised if they or even their family member disobey the local authorities or cause serious embarrassment. Such cases are at any rate, considered unethical and as violation of the spirit of Vienna convention. As per spirit of Vienna convention “It is possible for the official’s home country to waive immunity. This tends to happen only when the individual has committed a serious crime unconnected with his / her diplomatic role. But many countries ( so called most civilized and being trumped as champions and saviors of civil liberties and human rights in modern world ) however refuse to wave immunity as a matter of course” as now being done in case of Reymond Davis. These countries mostly do so by taking the advantage of the cases of overlap between the rules of “Functional Immunity” and “Personal Immunity” as per customary international law and treaty.
Not being an expert on international laws but still as a layman and an ordinary citizen of Pakistan for my understanding I would like to draw attention of my readers and would like to refer in brief with the Doctrine of International law of Immunity from prosecution for criminal offences. Immunities are of two types: Functional Immunity is granted to people who perform certain functions as act of state. This type of immunity is based on respect for sovereign equality and state dignity. The offices usually recognized as attracting Functional immunity are Head of States or Heads of Govts., senior cabinet members, Foreign Ministers and Minister of Defense.
Second is Personal Immunity: Which is enjoyed by diplomatic agents and their families because of the office they hold rather than in relation to the act they have committed. When a person enjoying a personal immunity commits a criminal act , the personal immunity as usual, is removed. Personal immunities cease with the cessation of the post.
Ref: http//en.wikipedia.org/Immunity_from_prosecution_(international law)
My understanding is that perhaps in case of Raymond Davis, his country of origin is once again trying to take advantage of the cases of overlap in between Functional Immunity and Personal Immunity. The beginning of Modern Immunity as parallel to modern diplomacy since 1709 was actually to guarantee diplomatic immunity from prosecution to foreign missions that actually indulged in violations and abuse of local laws not in order but in disorder to intact the Colonial Rule of British Raj. In this age of modern diplomacy, diplomatic immunity continues to provide a means to safe guard hidden intents and vested interests of stronger states into the weaker states. In view of massive arousals and riots like in Tunisia, Egypt, Algeria and so on against prolonged exploitation of public rights the civilized world therefore must review the possible impacts of irresponsible diplomacy.
Especially under perspectives of major accidents of wars so far occurred in the world the diplomacy must be tamed to the level of respects of sovereignties. In the late 19th and early 20th Centuries, morality was not regarded as an important element in international relations. The history of Diplomacy reveals that personal attitudes and behaviors and conduct of diplomats and their agents covered under all kinds of immunities infect aggravated the causes and effects of world wars.
Massive killings of wars brought much more critical attitudes towards their leaders:
- How and why had diplomats and diplomacy brought Europe and the world to this horror?
- Were the traditions and personnel of diplomacy a factor in prolonging the war?
- The diplomats were almost exclusively upper class and there was a growing feeling that there was not enough democratic control. The war revealed that the consequences of diplomacy were borne by all of society and were too serious to be left to small elite.
However, there began to be a growing movement and sentiment to alter the conduct of diplomacy and international relations.
Ref: Wallace G. Mills Hist. 203 12 Morality and Diplomacy.
This attitude and mindset is continued under prevailed Dichotomy of ‘Might is Right’. The violation and abuse of this Law of Immunity by diplomats especially of stronger countries particularly into socially, politically and economically weaker states includes not only espionage but all kinds of other crimes including rapes, murder, child custody, material theft, employer abuse and discrimination in cases of employing local staff and labor. It is therefore the policy of the foreign service of United States neither to confirm nor to deny the existence of espionage and intelligence personnel in US embassies.
How the Government of Pakistan, this time handle with the situation of Raymond Davis, will set the tone for the future of this black Law of protection of violence and exploitation of stronger states into weaker states. But greater possibility is that “Dichotomy of Might is Right “would prevail.