The US official charged with killing two motorcyclists in Lahore Thursday may be able to avoid prosecution under Vienna Convention on Diplomatic Relations 1961, depending on his diplomatic rank, say legal experts on international law. According to them in the relevant Vienna Convention, diplomatic immunity is the prerogative of diplomats.
However, the range of immunity is a function of the rank of the diplomat. The objective of the immunity is to ensure that a diplomat may carry out his duties without legal harassment. Diplomatic immunity allows foreign diplomats to work in host countries without fully understanding all the customs of that country. However, diplomats are still expected to respect and follow the laws and regulations of their host countries as immunity is not a licence to commit crimes, experts said.
US Embassy in Islamabad has issued a press release which states, "a staff member of the US Consulate General in Lahore was involved in an incident yesterday that regrettably resulted in loss of life. The US Embassy is working with Pakistani authorities to determine the facts and work toward a resolution". Without going into any detail about possible prosecution of the accused, Federal Minister for Interior Rehman Malik told National Assembly that an investigation into the incident is under way.
A former top Foreign Office official on condition of anonymity told this correspondent that in such cases, international convention prevails upon local laws. He opined that the accused may be declared persona non grata and be asked to leave the country. However legal proceedings against the accused could be initiated in a US court of law, he contended. The expert in also said that determination of diplomatic immunity rests with the concerned embassy - what is the point of view of the Embassy ie is it ready to declare the accused as someone entitled to diplomatic immunity or not?
Another top legal expert who also declined to be named said that US Embassy can only make strong recommendations but the final decision, whether the accused is qualified for diplomatic immunity or not, will be decided by a court of law.
Quoting an example of a civil case, he said that an Islamabad Civil Judge on March 29, 2010, denied diplomatic immunity to Embassy of Austria, which had illegally occupied a private property and refused to vacate it despite court orders claiming such immunity.
According to Vienna Convention of Diplomats, several levels of immunity are granted: the higher the rank the greater the immunity. Diplomatic agents and their immediate families have the most protection and are immune from criminal prosecution and civil lawsuits. The lowest level of protection is granted to embassy and consular employees, who receive immunity only for acts that are part of their official duties.
However, the United States has had a tendency to be generous when granting diplomatic immunity to visiting diplomats because a large number of US diplomats work in host countries which are less protective of human rights. If the US were to punish a visiting diplomat without sufficient grounds, US diplomats in other countries could receive harsher treatment.
The legal expert said that if a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the host government has to waive immunity provision of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. In addition to this, the diplomat's visas are often cancelled, and the diplomat and her/his family are barred from returning to the host country.