Diplomatic and Consular Immunity: One Rule for Foreign Consulates in US, Another for US Consulates Abroad
President Obama, before he was a President or a Senator, was a constitutional law professor. He should know the law.
And yet in the increasingly dangerous show-down over Pakistan’s arrest and detention of Lahore consular contract “security official” Raymond Davis, who is charged with two counts of murder for the shooting deaths of two young Pakistanis on January 27, the president has grossly misstated what international law is with respect to the immunity from prosecution of diplomatic and consular officials.
As the president put it on a few days ago at a press conference, “With respect to Davis, our diplomat in Pakistan, we’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future. If our diplomats are in another country, then they are not subject to that country’s local prosecution. We respect it with respect to diplomats who are here. We expect Pakistan, that’s a signatory should recognize Davis as a diplomat, to abide by the same convention.”
The first problem is that Davis isn't a "diplomat." At best he's a consulate employee. Furthermore, whoever wrote the president his lines or gave him his background briefing sure didn’t read the Vienna Convention on Consular Relations of 1963! Nor did he or she read a document issued last August by the US State Department titled: Diplomatic and Consular Immunity; Guidance for Law Enforcement and Judicial Authorities (Dept. of State Pub. 10524)
The Vienna Convention on Diplomatic Relations of 1961 that the president mentions, and to which the State Department keeps referring when telling Pakistani and American journalists that Davis must be released from jail, is really not even the relevant document. Davis is not a diplomatic employee. He stated himself to police that he is "only a consultant at the Lahore Consulate". Whether even that statement is true or not, the point is that his legal status would then be determined in accordance with the later treaty, the Vienna Convention on Consular Relations of 1963.
And as that document states, in Article 41:
Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
Murder would, of course, constitute such a “grave crime.”