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Diplomacy in Action

Background Briefing on Diplomatic Immunity


Special Briefing
Senior Administration Official
Via Teleconference
Washington, DC
February 21, 2011

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OPERATOR: Welcome, and thank you for standing by. At this time, all participants are in a listen-only mode until the question-and-answer session. If you would like to ask a question at that time, please press *1 on your touchtone phone and clearly record your name when prompted. Today’s conference is being recorded. If you have any objections, you may disconnect at this time.

I’d like to go ahead and introduce your Assistant Secretary Crowley. Sir, you may begin.

MR. CROWLEY: Hey, thanks very much, everybody. Happy President’s Day to you. This morning, Prime Minister Gilani spoke to the Pakistan parliament and he indicated that in the Pakistani view there are differences of opinion between Pakistan and the United States in the case of Mr. Davis on the issues of interpretation and applicability of international and national laws. We thought in light of that, it would be useful just to go through some of the basics on diplomatic immunity and how we, as the United States, see this case.

We still believe earnestly that Mr. Davis is a member of the administrative and technical staff of the Embassy in Islamabad and is entitled to full immunity from criminal prosecution and should not be arrested or detained. And we will continue to work with Pakistan to resolve any differences that we have on this issue.

With that, I thought we’d bring in one of our foremost experts in international law just to kind of go through this issue with you. It is a background call attributable to a Senior Administration Official. For your knowledge, it’s [Senior Administration Office]. At this point, [Senior Administration Official] will make some brief opening comments, and then we’ll open it up for questions.

SENIOR ADMINISTRATION OFFICIAL: Thanks, P.J. As P.J. said, I’m going to stick to the legal position, which I think is very clear. In fact, under international law, there are very few areas where the law is so clear. And it basically comes down to three uncontested facts.

First, on January 20th, 2010, the U.S. Embassy in Islamabad notified Mr. Davis as a member of the administrative and technical staff under the Vienna Convention on Diplomatic Relations. That’s a treaty to which both the U.S. and Pakistan are parties without reservation, along with 185 other countries. From that point, he enjoyed the status as a member of the staff of the mission. He enjoyed privileges and immunities against local criminal law, including inviolability of person, inviolability from arrest and detention, immunity from criminal jurisdiction. He has those privileges and immunities, and he continues to enjoy them.

The second point is that once he enjoys those immunities, as a matter of law, the only remedy if the Pakistanis are not satisfied is for them to declare him not acceptable and to ask him to leave the country at the earliest possible moment. They have not done that. If they were to do that, they would need to assist him in doing so. Any other form of action, including a judicial proceeding or any other action, is inconsistent with his status as a member of a diplomatic mission and would only compound the violations of international law. And they are, under the treaty, unconditionally obligated to respect, protect, and facilitate his departure.

The third point is that there is no difference in the obligations under international and domestic law. The legal obligations are clear. The only rules that matter here are the international legal rules. As I said, 187 countries have ratified this treaty. It represents 500 years of consistent practice. The U.S. follows this practice with regard toward all diplomats who are similarly accredited or all members of diplomatic missions, including those from Pakistan. Under the international law, local law cannot be invoked as an obstacle to fulfillment of a country’s international obligations. But even if it could be, the Pakistani law is consistent with international law. The 1972 privileges and – Diplomatic and Consular Privileges Act of Pakistan says that they will respect these rules. And their own Ministry of Foreign Affairs manual states that they will follow these protocols with respect to individuals in Mr. Davis’s situation.

So the current state of affairs is that Mr. Davis enjoys these international privileges and immunities; the Government of Pakistan is unconditionally obligated to respect, protect, and facilitate his departure on his request; and that the legal obligations are clear under both domestic and international law.

I could say more, but at this point I’m happy to turn it over for questions.

OPERATOR: Once again, if you would like to ask a question at this time, please press *1 on your touchtone phone and clearly record your name when prompted. One moment for the first question, please. The first question comes from Matthew Lee, the Associated Press. Your line is open.

QUESTION: Hi, [Senior Administration Official], can you hear me?

SENIOR ADMINISTRATION OFFICIAL: Yeah. Hi, Matt, how are you?

QUESTION: I’m doing well. Listen, just one thing for P.J. P.J., are your opening comments on background or are they on the record as well?

MR. CROWLEY: They’re on the record.

QUESTION: On the record, okay. So it’s just [Senior Administration Official] who’s on background?

MR. CROWLEY: Correct.

QUESTION: Okay, and just a technical point. On the date you said that you notified the Government of Pakistan on January 27th?

SENIOR ADMINISTRATION OFFICIAL: January 20th, 2010.

QUESTION: 20th of 2010, okay. Are they required to – do they have to affirm or respond to you and say that they accept him as a member of the technical and administrative staff of the Embassy and affirmatively say that he has immunity?

SENIOR ADMINISTRATION OFFICIAL: No, it’s well-established – the diplomatic note, I think, is publicly available – the status of the member of the mission is determined by what the sending state does, namely the United States.

QUESTION: But they don’t have to you and say --

SENIOR ADMINISTRATION OFFICIAL: And Pakistan (inaudible) --

QUESTION: -- yes, okay, Person X is – we recognize Person X as --

SENIOR ADMINISTRATION OFFICIAL: Right. Once we notify, end of story.

QUESTION: Okay. And then just on his – given his – the revelations of his employment yesterday and today, I assume that makes no difference?

SENIOR ADMINISTRATION OFFICIAL: The whole point of the law is that you don’t look behind the notification. If – once someone has been notified and they assume these privileges and immunities, if the receiving state is unhappy for some reason, they can declare the person not acceptable and they can leave, but they have no other remedies.

QUESTION: Okay. And just – when you say unacceptable, is that basically PNG them, PNGing them?

SENIOR ADMINISTRATION OFFICIAL: Well, because he’s a member of the diplomatic mission staff, the term is “not acceptable.” They can say he’s not acceptable. They have not done that.

QUESTION: Okay, all right. Thank you.

OPERATOR: The next question comes from Arshad Mohammed with Reuters. Your line is open.

QUESTION: Hi, [Senior Administration Official]. Thanks very much for doing this. Can they state that he is not acceptable at any point subsequent to the notification?

SENIOR ADMINISTRATION OFFICIAL: Yes.

QUESTION: And then just to make sure I understood it right, their only recourse at that point is to ask him to leave the country and to facilitate his departure?

SENIOR ADMINISTRATION OFFICIAL: Yes, under Article 44 of the treaty, and it makes clear that they have to facilitate that departure. And both the United States and Pakistan are signatories to the treaty; they have ratified the treaty, so they have signed and their legislatures have given the necessary approval or, in our case, advice and consent without reservation.

QUESTION: And do you have any recourse given that your position is that he has diplomatic immunity and therefore he should be released and not charged or tried and so on? Is there any higher authority to which the U.S. Government can apply to seek relief here?

SENIOR ADMINISTRATION OFFICIAL: Well, the treaty envisions a number of routes, but the primary route is the one that we are pursuing here, which is bilateral conversation with the party that has originally acknowledged that his status as a member of the diplomatic mission. This happens virtually all the time. It rarely goes to a court. In virtually no cases does it go to any other body.

QUESTION: What are the other routes of appeal?

SENIOR ADMINISTRATION OFFICIAL: Well, I would say that there’s a long diplomatic history of 99 percent of the cases are resolved through diplomatic negotiation. You can also refer the case to the International Court of Justice, as was done in the Iranian hostages case in 1979.

QUESTION: Have you done so?

SENIOR ADMINISTRATION OFFICIAL: We have not done so.

QUESTION: And why not? Because you believe that this can be resolved diplomatically?

SENIOR ADMINISTRATION OFFICIAL: Yeah. I think the positions are clear and we can work out these differences with the Government of Pakistan, with whom we have numerous ongoing diplomatic relations.

QUESTION: And then one last question. Do you have particular concerns about his safety, given that he is accused of – and I don’t think anybody is denying – that he killed two Pakistani citizens, whatever were the circumstances?

SENIOR ADMINISTRATION OFFICIAL: I’m going to stick to the legal briefing, let P.J. speak to any facts. But the point is that, as a matter of law, they are unconditionally obligated to protect him and to facilitate his departure and to respect his privileges and immunities, given the accreditation he’s already received.

MR. CROWLEY: Let me jump in. Obviously, we are concerned about his safety. We have had multiple conversations with the Government of Pakistan regarding his current surroundings. They have told us that he is in the safest possible location in Lahore. And clearly, we hold the Government of Pakistan fully responsible for his safety.

I mean, we are very mindful of the difficulty that the Government of Pakistan faces in terms of public opinion in this case. It’s why we have, on an ongoing basis for the past month, engaged them constructively and forthrightly. But we remain concerned about him, and our message to Pakistan remains he should be released as soon as possible.

QUESTION: One last one, if I may, P.J. Are you – well, two things. One, was that answer on the record or was that also on background?

MR. CROWLEY: That’s fine.

QUESTION: On the record?

MR. CROWLEY: Yep.

QUESTION: And then second, also on the record, is the U.S. Government – since Pakistan seems to be digging in in its position here, is the U.S. Government considering curtailing any of its military or economic assistance to Pakistan as a way of manifesting your unhappiness at Mr. Davis’s continued incarceration?

MR. CROWLEY: I mean, we’re building a strategic partnership with Pakistan. It’s important to the future of the region. It’s also important to the security of the United States. We are engaging Pakistan in good faith. We want to see this resolved as soon as possible so it does not become an impediment in our relationship and it does not measurably interfere with the work we are doing together in fighting extremism that threatens Pakistan and threatens us.

QUESTION: Does that mean no?

MR. CROWLEY: That – so at this point, we’re not contemplating any actions along those lines.

QUESTION: We’re not contemplating any actions along those lines?

MR. CROWLEY: (Inaudible.)

QUESTION: Hello?

MR. CROWLEY: Yes.

QUESTION: Sorry, I didn’t hear the last bit of your --

MR. CROWLEY: We are not contemplating any actions along those lines.

QUESTION: Excellent, thank you.

OPERATOR: The next question comes from Jill Dougherty, CNN. Your line is open.

QUESTION: Thank you. I just wanted to clarify exactly what the Pakistanis are saying, because there has been bandied about this concept of partial immunity. But it looks as if you are saying that they are – they’re saying that local law can trump international law. Could you explain that?

SENIOR ADMINISTRATION OFFICIAL: Well, I’m not sure that that’s what they’re saying, but if they were saying that, in fact, their local law doesn’t trump and the local law is consistent with international law. The question here is whether he was properly notified as a member of the diplomatic – the staff of the diplomatic mission under the treaty, and he was. And so there are – under the treaty, the Vienna Convention on Diplomatic Relations, those who are the ambassador or head of the mission are diplomatic staff, and then those who are members of the staff of the diplomatic mission, including administrative and technical staff. And once you are notified in one of those categories, you acquire unequivocally the privileges and immunities under the treaty. And I don’t think there is any dispute that that’s exactly what happened. And those include inviolability of person, inviolability from arrest and detention, and immunity from criminal jurisdiction. So he acquired all of those.

QUESTION: Okay. And just to make sure, when you – you phrase it in kind of a unique way, whether he was properly notified. Do you mean they were properly notified of his presence as a diplomat; is that correct?

SENIOR ADMINISTRATION OFFICIAL: Yeah, it happens all the time. When people come into post, we send them a diplomatic note to the Ministry of Foreign Affairs and we describe someone as head of mission, a member of the diplomatic staff, or a member of the staff of the diplomatic mission. And he was notified as a member of the administrative and technical staff of American Embassy Islamabad. That was on January 20th, 2010.

QUESTION: Oh, so the American Embassy Islamabad, as opposed to the consulate in Lahore?

SENIOR ADMINISTRATION OFFICIAL: His notification was given by the American Embassy in Islamabad, and that’s the controlling fact.

QUESTION: Okay, because there was a question too that because he was in the consulate at a – not at the main Embassy, that that might have played a role. You’re saying that that’s – that does not play any role?

SENIOR ADMINISTRATION OFFICIAL: People in country can move around, but their status is determined by how they are originally notified under the Vienna Convention on Diplomatic Relations, as he was. I mean, if Ambassador Munter went to the consulate, his status would not change.

QUESTION: Okay, thank you.

OPERATOR: The next question comes from David Martin, CBS News.

QUESTION: I’m still confused as to what the Pakistanis are saying to claim that this is not as clear-cut as you’re making it to be. What is their legal argument?

SENIOR ADMINISTRATION OFFICIAL: I don’t – I’m not sure I understand their legal argument. As you say, it’s extremely clear. It turns on these three facts, and I haven’t heard anything to make me think that there is a different argument that’s credible under international law.

QUESTION: So what are they saying? Are they just saying – are they just denying the validity of your argument, or do they have a counter-argument?

SENIOR ADMINISTRATION OFFICIAL: I think their counter-argument is that he’s not properly listed under the Vienna Convention on Diplomatic Relations. And we’ve given a diplomatic note which notifies him to the Foreign Ministry as a member of the administrative and technical staff under the Vienna Convention on Diplomatic Relations. So I haven’t seen the counter-argument.

QUESTION: But I thought you said that there was no dispute that they had been properly notified.

SENIOR ADMINISTRATION OFFICIAL: I don’t think they dispute that they were properly notified.

QUESTION: So – but they’re still saying he’s not properly listed?

SENIOR ADMINISTRATION OFFICIAL: I don’t think they’re saying he’s not properly listed. I think they’re questioning whether the status that is – seems crystal clear has, in fact, stayed with him. And I don’t think they have suggested why it shouldn’t. Their diplomats and members of the diplomatic staff who come into the United States, once they are notified by diplomatic note of the exact same kind, that’s the end of the story. And the same applies here.

QUESTION: So they’re saying that his immunity somehow lapsed?

SENIOR ADMINISTRATION OFFICIAL: They have not made that argument.

QUESTION: Well, first I thought you said that they had – were claiming that he was not properly listed, but you then said they say he is properly listed? Then I thought you --

SENIOR ADMINISTRATION OFFICIAL: No, I didn’t make any claims about what they said. All I said was what we did. And they have received that notification and that was sufficient to establish it and he enjoys those privileges and immunities since. I think you have to go to the Pakistanis to see whether they have a different claim, but I don’t think they have denied the receipt of this note as of January 20th, 2010.

QUESTION: Okay.

SENIOR ADMINISTRATION OFFICIAL: Let me go back. I said that his – this is about as clear as it gets under international law. And there are very few areas where the law is as clear as this, but in this case, it is extremely clear.

QUESTION: Okay.

OPERATOR: The next question comes from Yashwant Raj with Hindustan Times. Your line is open.

QUESTION: Thank you. P.J., this question is to you. NYT has – the New York Times has said Mr. Davis is working for the CIA. Could you confirm that, please?

MR. CROWLEY: We will not comment on his particular activity in Pakistan other than to say he’s a member of the administrative and technical staff of the Embassy and has diplomatic immunity.

QUESTION: Thank you.

OPERATOR: The next question comes from Tray McGuire, Upfront News. Your line is open.

QUESTION: Good afternoon. Thanks for doing this call. P.J., can you tell me what exactly is the responsibilities of the administrative and technical staff?

MR. CROWLEY: I’m not going to go further than that description.

QUESTION: Okay. My other question to you is do you – is it the State Department’s (inaudible) that at some point diplomatic immunity isn’t – should be lifted for some diplomats in the case of Mr. Davis, such as murder?

MR. CROWLEY: I’ll go back to our Senior Administration Official, but the issue here is with diplomatic immunity he is –[Senior Administration Official], if you can describe what that means.

SENIOR ADMINISTRATION OFFICIAL: Yeah. So, first of all, all of these things are determined when someone enters the country and when the notification is sent. They can be the head of the mission, the ambassador. They can be a member of the diplomatic staff, a diplomatic agent, or they can be a member of the staff of the diplomatic mission, the administrative and technical staff. And each of those categories has privileges and immunities under the treaty. So when they are notified, they enjoy those privileges and immunities, and under the treaty, people who are listed as administrative and technical staff enjoy a set of privileges and immunities under Articles 29 to 35 of the treaty, which – not to get technical – are inviolability of person, inviolability of your private residence, inviolability of your papers, and immunity from arrest and detention, and immunity from criminal jurisdiction, including requirements to testify. There’s no requirement to look behind that, and you don’t look behind that. The whole point of it is to make it crystal clear up front. And once that’s done, it’s the end of the story.

QUESTION: If these reports are emerging from the New York Times and Washington Post are true that he was a member of the CIA. Does diplomatic immunity become void then?

SENIOR ADMINISTRATION OFFICIAL: The only relevant question is: Was he notified as a member of the administrative and technical staff upon entry to the Ministry of
Foreign Affairs? And the answer to that question was yes. At that point, he acquired privileges and immunities.

When someone enters our country, if that person is notified as a member of the administrative and technical staff of a diplomatic mission that's the end of the story on that side.

Our options then become to either declare the person not acceptable and facilitate their departure or to work with them in their capacity as administrative and technical staff.

QUESTION: Thank you.

MR. CROWLEY: We'll take a couple more and then we'll wrap this up.

OPERATOR: The next question comes from Raghubir Goyal with India globe and Asia Today. Your line is open.

QUESTION: P.J. and all of you, thank you for holding this on this holiday. God bless you all. My quick question is that despite Secretary’s and President’s call to the highest level of the Pakistani officials to release Mr. Davis immediately under the Vienna Convention, and they have not done? Second, how do you feel the U.S.-Pakistan relations, because of this? And finally, there was some call from the Pakistani community or from the religious community that there is a rule under the Islamic law if Mr. Davis or somebody paid some ransom, ransom or some money, then he could be forgiven by the victims’ families, if this deal is underway? And of course, Americans are worried that he should be released immediately. Thank you.

MR. CROWLEY: Well, Goyal, let me say that we will continue to work with the Government of Pakistan to resolve this as soon as possible, befitting the relationship that we have and the partnership that we are building. That said, what is commanding here is international law; and as we’ve explained through this call, he has diplomatic immunity and needs to be released as soon as possible. But we will – as many of our leaders have said, we’ll work to resolve this with the Government of Pakistan as soon as possible.

QUESTION: And if ransom money is anything --

MR. CROWLEY: Again, Goyal, we’ll just leave it there.

QUESTION: Thank you, sir.

OPERATOR: The next question comes from Laura Rosen with Politico. Your line is open.

QUESTION: Thanks for doing this. I’m sorry, I got on late, but did you guys say whether he – which diplomatic mission or consulate he was described as being affiliated with?

SENIOR ADMINISTRATION OFFICIAL: U.S. Embassy Islamabad.

QUESTION: Because I thought that other earlier reports had said it was to the consulate in – I’ve seen the consulate in Lahore or the mission in Peshawar.

SENIOR ADMINISTRATION OFFICIAL: No, the relevant notification is the one shortly after he arrived, January 20th, 2010, a diplomatic note, which I think has been shown to the press, which says we have the honor to inform the Ministry of Foreign Affairs of the assignment of Mr. Davis, administrative and technical staff, American Embassy Islamabad.

QUESTION: Okay, thanks. And then secondly, there were reports a couple days ago that the two men described as trying to rob him – there have been allegations that they’re affiliated with Pakistani security services. Do you have any sense if that’s why the Pakistanis seem --

SENIOR ADMINISTRATION OFFICIAL: I’m only here to comment on the legal status of Mr. Davis.

MR. CROWLEY: I’ll pick up that, Laura. We – many elements of this are still being investigated, but we believe he acted in self-defense. And we haven’t changed our view that these were individuals who had accosted him at, I believe, a stoplight; they brandished weapons, they have a criminal history. And we believe he acted in self-defense. That said, as we’ve said throughout the call, he has diplomatic immunity and should be released.

QUESTION: Thank you. And then also on the person who went to – the Pakistani request for the – access to the person who went to try to help him after the incident – I’m sorry, I missed if you had comment on --

MR. CROWLEY: That aspect of it is still under investigation.

QUESTION: Okay.

SENIOR ADMINISTRATION OFFICIAL: But just to clarify, although the position is that he acted in self-defense, the prior question is: Do the Pakistani courts have any legal authority under their own law to determine whether he acted in self-defense? And when he has immunity from criminal jurisdiction, they have no jurisdiction; they can’t get into the questions of defenses or claims. And it’s designed to be clear and unequivocal to make these cases quickly resolved based on a simple showing of whether someone was notified as a member of the administrative and technical staff, which he was.

QUESTION: Thanks.

MR. CROWLEY: Well, thanks, everybody. We’ll wrap up at this point and hopefully these details help you fully understand the position of the United States as we continue to work with the Government of Pakistan to resolve this case.

OPERATOR: Thank you for your participation in today’s conference call. The call has concluded. You may go ahead and disconnect at this time.



PRN: 2011/247



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