PAKISTAN: Can a security contractor claim diplomatic immunity?

There's a chap named Raymond Davis currently in a prison cell in Pakistan. He was in the country as a private contractor working for the Central Intelligence Agency (CIA). David was arrested after he gunned down two men in Lahore. A third person was run over by a US Consulate vehicle.

The Hindustan Times reports:

Davis, a US official, was arrested in Lahore Jan 27 after he shot dead two youths on a motorcycle. He claimed he acted in self-defence as the armed youngsters were trying to rob him.


His arrest has sparked a diplomatic crisis and strained relations between the US and Pakistan. The US has threatened to withhold the $1.5 billion aid package promised to Islamabad for the war on terror.

Views in Pakistan are ... well ... to put it mildly, quite strong. Here is what one columnist, a retired vice-admiral and former vice-chief of the naval staff, wrote in The News.

What sort of “strategic relationship” do we have with each other if America has let loose a horde of CIA operators in this country and is working towards its destabilisation.


The US position is that international conventions cannot be subservient to the laws of a signatory country. The Vienna Convention on Consular Relations was intended to specify the privileges of a mission to enable its diplomats to perform their function without fear of coercion or harassment by the host country. It is ironic that in the Davis case this convention has been turned on its head against the host country, for use as a legal cover to protect an American who committed first-degree murder.

The New York Times reports more reaction from Pakistan:

For Pakistanis, many of whom are angry at the apparent impunity with which the C.I.A.’s drone missiles regularly kill terrorism suspects — and, at times, innocent bystanders — Mr. Davis’s case has proved galvanizing. Protesters have called for Mr. Davis to be hanged.

The US government claims that the case is clear - Davis is subject to diplomatic immunity and must be released. Davis, they argue, was in Pakistan as a diplomat. Yet as the NYT reports:

... this case also rests on legal technicalities, with confusion arising from contradictory statements by the State Department in the first days after Mr. Davis’s arrest. Those statements have called into question whether Mr. Davis was working — officially, at least — as a diplomatic official or a consular one. Consular officials are afforded somewhat weaker legal protections because they are thought of as administrators, rather than diplomats.


Initially, State Department officials described Mr. Davis as a staff member for the United States Consulate in Lahore.


Days later, however, the United States government said that Mr. Davis was actually listed with the administrative and technical staff of the United States Embassy in Islamabad — and that it had formally notified the Pakistani Foreign Ministry of his status there on Jan. 20, 2010.


The distinction is crucial. If Mr. Davis was listed as a technical staff member for the embassy’s diplomatic mission, then he would be covered by a 1961 treaty that gives diplomats total immunity to criminal prosecution. In that case, Pakistan should be allowed only to expel him. Victims’ families, however, might still be able to sue him for civil damages.


But if Mr. Davis were instead listed as a staff member for the consulate in Lahore, then he would be covered by a 1963 treaty that governs the rights of consular officials and that allows host countries to prosecute them if they commit a “grave crime.”


The contradictory statements over Mr. Davis’s assignment are just part of the evidence that Pakistani news accounts have cited in criticizing the United States’ position.

I'll have to dust off my public international law textbooks to come up with a definitive answer to this one. Treaty interpretation isn't easy. The rules of international law are not like common law where clear rules of interpretation and construction apply and where case law usually provides clear guidance. Precedents are not binding in international law but are only a guide.

What really matters is international consensus of what the legal position is i.e. customary international law.

Of course, law aside, this case illustrates just how tricky it is for countries like the US that make extensive use of private contractors for off-shore intelligence and defense work.

Words © 2011 Irfan Yusuf



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COMMENT: Making commercial law sound enlightening ...

It’s difficult to make a lecture on legal history sound interesting and entertaining. It’s even more difficult to imagine a judge successfully doing this.

His Honour Justice Spigelman, Chief Justice of the NSW Supreme Court, managed to comfortably achieve this requirement. His presentation to the Enlightenment Forum organised by the Centre for Independent Studies was a master-stroke of clarity, erudition and good humour.

His Honour focused on the enlightenment value that seeks to implement a culture of improvement through the application of reason. He said that no individual or society should be deemed sentenced by the Creator to remain at the same standard.

Spigelman J distinguished between reform and improvement. He illustrated his discussion by examining the life of one of England’s foremost jurists, Lord Mansfield.

English enlightenment was a more pragmatic affair than its counterparts in other parts of Europe. It focussed more on what works than on how the world should be. It was realistic, but at times too insular.

Lord Mansfield was an apparently rare entity - a Scottish Francophone. He didn’t share the insularity of the common lawyers of his day, especially in commercial matters. In his 30 year career, he developed English common law (especially in the area of property, insurance, commercial instruments and maritime law) in a manner that made English law consistent with developments in other parts of the world. He insisted that there must be freedom of contract and that contracts should be based on good faith.

Mansfield was in many ways a man ahead of his time. Many of the issues he addressed in his judgments – issues of delays and mounting costs to litigants - are still relevant today. Mansfield also was happy to refer commercial disputes to independent arbitrators. He was an interventionist judge, happy to actively participate in hearings as opposed to just leaving matters to the parties and/or their legal counsel. Indeed, many aspects of modern judicial practice (such as case management) can be traced back to Mansfield’s enlightened reforms. In this sense, Mansfield ensured that the values of enlightenment are entrenched in contemporary judicial practice.

Spigelman J cited an American judge Posner who once said that the law is the only discipline in which innovation is regarded as a pejorative concept. Lawyers prefer to speak of improvement as opposed to innovation. Yet Mansfield’s role in developing English commercial law represented both innovation and improvement.

The last time I read about Lord Mansfield was when I studied an undergraduate course in commercial law under Professor Mark Cooray. At the time, I found the entire development of the Sale of Goods Act rather boring. Spigelman J’s lecture might just revive an interest in the topic again.

OPINION: Stirring the plot with polygamy

I was catching up on the latest news of my ancestral sport when I noticed that India had just won a cricket match in the Asia Cup. I wasn't surprised by India winning, but I was surprised by who they were playing.

Hong Kong? Playing cricket? Surely this was a misprint. Since when did people in Hong Kong play cricket?

But why should I be surprised? After all, Hong Kong was once a British colony. And one would expect that at least some traces of British culture would remain even after Hong Kong was handed back to China.

Just as one would expect some Muslim men to marry more than one wife. Listeners to Triple J's Hack current-affairs program may have been similarly surprised to learn that some Muslims want the right for Muslim men to marry more than one wife.

President of the self-styled Islamic Friendship Association Keysar Trad even told a broadsheet newspaper that he had made serious attempts at it. He's a brave man to admit this to a national newspaper.

To its credit, The Australian reported the story quite fairly, as did the Fairfax papers. The News Limited tabloids, meanwhile, accompanied their stories with pictures of women in black burqas in various positions some kneeling in submission and others taking a stroll (presumably indoors). Is this a case of Rupert Murdoch's tabloid minions keeping a certain Saudi prince (who owns at least a 7 per cent stake in News Corporation) happy?

Lakemba Sheik Khalil Chami, who I understand doubles as Muslim chaplain for the Australian Federal Police, has called for Australia's marriage laws to be amended. His concern is that there are Muslim men who engage in polygamous marriages "off the record". They have their first marriage registered while any subsequent wives are the subject of purely religious ceremonies. Until the relevant time elapses, these women don't even have the protection of state and territory laws governing de facto relationships.

Chami says he has been approached by men asking him to perform second and third marriages. He has refused, and says many men seeking multiple marriage partners are inspired by less-than-altruistic motives.

But what happens if there are altruistic motives? What happens when a man is prepared to marry a woman to provide her with some much-needed support and in a socially respectable manner?

For many Australians, such notions of social justice may seem unusual. After all, if you're a man who wants to support another woman, why do you need to marry her?

But then, as Uncle Sam (the comedic character from SBS TV's new chat show Salam Cafe) would say, "Vye not?" Especially when we are talking about societies where reputation is everything and where women are almost always expected to hold to higher levels of sexual ethics than men.

I know of one case in Melbourne where a man entered into a polygamous marriage. The man's existing wife had a close friend who had converted to Islam and was in some difficulties with her family. The first wife permitted, indeed encouraged, her husband to marry the woman as a favour to her friend.

The polygamous marriage consisted purely of a marriage ceremony, though they had enormous trouble finding an imam to perform it. The marriage wasn't registered and sadly didn't last long. If it did, the second wife would have eventually gained the status of a de facto partner under Victorian law.

What surprised me was the response of Muslims in Melbourne. It was unequivocal and swift. The family was ostracised. Many of my male friends invited to the wedding, including some very observant Muslims, refused to attend for fear of offending their wives.

Turks were particularly scathing. Melbourne's Muslim community is largely dominated by Turks and Cypriots. Polygamy is banned in Turkey. Unlike the ban on women wearing hijabs to university, the polygamy ban is indicative of Turkish social attitudes.

The verses from the Koran dealing with polygamy have been interpreted in various ways. They don't provide absolute permission for men to marry more than one wife. The most generous reading would provide for conditional consent for a man to marry up to four wives if he could provide for them equally. Jurists of Islamic sacred law have applied this strictly to effectively mean that a man who builds a house for one wife is expected to build houses of identical cost and quality for his other wives. Little wonder polygamy is the exception rather than the rule in most Muslim societies.

The social justice considerations behind polygamous marriage do not exist in Australia. Our social-security safety nets provide at least some coverage to single-parent families in financial crisis.

Nor do we see much evidence of demand for changes to marriage laws from Muslims, Mormons or followers of other faiths often associated with polygamy. When not even observant Muslims are clamouring for polygamy, our marriage laws should remain as they are.

Irfan Yusuf is a lawyer and associate editor of AltMuslim.com. This article was first published in the Canberra Times on Friday 27 June 2008.

Words © 2007 Irfan Yusuf

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CRIKEY: Alert and alarmed - Brits seek 42-day preventative detention

Wow. A conservative MP with a conscience. A conservative MP who believes that fighting terrorism shouldn’t involve the compromising of civil liberties enshrined in common law since the Magna Carta. And a conservative MP who actually is prepared to do something about it, to resign and force a by-election on the issue.

No, I’m not talking about anyone on Dr Brendan Nelson’s side of Parliament. Nor a genuine conservative like former PM Malcolm Fraser. I’m talking about David Davis, the Member for Howden and Haltemprice in the House of Commons and the Shadow Home Secretary. You can watch him explaining his reasons here.

The Brits are fiercely divided over whether to extend the period of preventative detention from 28 to 42 days. PM Gordon Brown and Home Secretary Jacqui Smith have argued that a longer period is needed given the complexity of such cases. Similar arguments were used by our own politicians and by the Federal Police in relation to the extended detention of Dr Mohamed Haneef.

They might have a point, especially with UK public servants dropping sensitive intelligence briefings on al-Qaeda on London trains. As the Independent editorialised yesterday:

A more perfect illustration of this administration's ineffective authoritarian tendencies could scarcely be imagined.

The proposals were narrowly passed through the House of Commons (with a majority of just 9 votes) on Wednesday. They include an ex gratia payment to anyone whose detention beyond 28 days is found by a court to be unjustified. That’s real consolation for someone who loses his or her job because of detention and cannot afford a lawyer to go to court and obtain the necessary orders.

Opponents of the proposal include the Director of Public Prosecutions, Sir Ken McDonald QC. You can hardly blame him given that his staff might find themselves arguing these matters in court. Then again, McDonald has been cautious about such anti-terror laws in the past. On those occasions, McDonald referred to past experiences with the wrongful detention of suspected IRA terrorists, including the Birmingham Six and the Guildford Four.

It’s hard to run through the complexity of British anti-terror laws in this short piece. But as The Economist points out, Britain already had “the most generous pre-charge detention limit in the world” even before the 42-day period was passed. The Poms should be alert and alarmed.

First published in the Crikey daily alert for Friday 13 June 2008.

Words © 2008 Irfan Yusuf



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UPDATE/COMMENT: Recent stuff related to Rowan Williams and Sharia ...

There has been some interesting commentary on the issue of the Archbishop's speech on sacred and secular law. I've printed out the Archbishop's speech from his website, and it comes to 6 A4 pages in small type. It's a very difficult and esoteric read, and I'm only upto page 4.

What I notice is that in each place the Archbishop talks about the possible application of sharia, he also mentions Orthodox Jewish sacred law. Those who claim that Islamic law and the English common law are mutually exclusive should consider that their objections equally apply to the sacred law and jurisprudence of Orthodox Judaism.

It's particularly amusing when commentators of Jewish background (such as Melanie Phillips) condemn the Archbishop without bothering to read his speech. The caustic remarks Ms Phillips makes about sharia are equally applicable to Jewish sacred law. Islamic jurisprudence doesn't have a monopoly on capital punishment for sexual crimes or on apparently sexist family and estate laws.

A Muslim view on the issue can be found here. The author notes that Muslim response to the Archbishop's proposals has generally been negative.

My own views on this latest cultural mass debate are expressed here and here.

An Australian Christian cleric has defended the Archbishop at ABC Unleashed here. According to this report in the Financial Times ...

Church of England representatives on Monday rallied round the archbishop of Canterbury, Rowan Williams, after he publicly repented for the “distress and misunderstanding” caused by his stance on Islamic law ...

The assembled delegates – over 450 bishops, clergy, and lay men and women – rose almost to a person to applaud Dr Williams as he addressed them and gave him a similarly warm ovation after the speech.

Dissenters were muted and those who called for his resignation were reduced to a minority of two.

“Dr Williams has shown outstanding leadership and signalled that the Church must move on from this controversy,” said Nicholas Reade, the bishop of Blackburn.

No doubt the comments and criticisms will continue. The irony is that sharia and English law had been interacting in England's colonial possessions for centuries. Funny how some people conveniently overlook that.

Personally, I must say i do have some serious reservations about any proposal to recognise sharia or other sacred law that does not provide the parties with an appeal mechanism. Naturally, I am very opposed to even the partial implementation of sharia-based (or indeed any) capital punishment.

I also think that Muslims who believe sharia-based tribunals can and should operate in a common law jurisdiction should study the Beth Din model and see how it operates. The Beth Din model has been particularly useful in resolving disputes involving religious institutions as well as civil disputes. Given how busy our courts are and the waiting lists involved, I'm sure secular courts would appreciate any assistance they could receive from any method of alternative dispute resolution!

© Irfan Yusuf 2008

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COMMENT: Damnit Janet! haven't you heard of the common law?

It’s official. When it comes to law, Janet Albrechtsen is no conservative. Here’s why.

Albrechtsen’s spray on the ALP and ‘activist’ judges the other day is evidence (if ever any was needed) that she simply doesn’t believe in the English common law tradition. She writes:

The Howard Government has stacked the High Court with stodgy conservative judges. You know the type. Judges who have that old-fashioned view about democracy under which politicians and the people make the laws and judges implement them.

She summarises the impact of judge-made law as follows:

There is little predictability or certainty. The rule of law becomes no obstacle for significant social change.

Albrechtsen must have skipped her undergraduate law lecture where the concept of common law as judge-made law was explained. Then again, given the key role the common law plays in Australian law, it seems Albrechtsen may have skipped attending lectures altogether.

I guess Albrechtsen must be opposed to the various Sale of Goods Act legislated in the various Australian states and territories as well as at Commonwealth level. Those acts involved codification of basic commercial law developed by English judges over centuries. As far back as 1988, the NSW Law Reform Commission noted that noted that the preamble to these Acts mention their intention “to codify ... the law relating to the sale of goods". You’d think someone with a PhD in commercial law would know that.

Albrechtsen must also be opposed to basic common law concepts such as negligence, the result of nasty left-wing Che Guevara-worshipping House of Lords judges like Lord Atkin in the 1932 English decision of Donoghue –v- Stevenson. I mean, look what happens when activist judges give judicial expression to the “Good Samaritan” propaganda of that radical communist Jesus Christ, as reported in Chapter 10 of the revolutionary extremist manual known as The Gospel According to Luke.

Albrechtsen goes further, rallying against

... progressive judges who have staked out their preference for ambiguous human rights and international law.

She resents the appointment of judges committed to nasty trendy left-wing types of causes. You know. Communist socialist anarchist leftist PC-ist causes like human rights.

The horror! Judges standing up for human rights? And judges making law as they have been for over 1,000 years?? We’d better start donning “Howard-07” t-shirts as

Labor may end up appointing judges who have nothing but disdain for politicians and parliament and, yes, the people.

True conservatives support the status quo, and insist on only gradual change. By almost wanting to do away with the traditional role of the common law, Albrechtsen has shown why (at least in legal matters) she is a radical revolutionary.