The Case of Colonel Joseph in Light of International Law
In the modern world, the sovereignty of the state is best exercised by applying its national laws, which are more often than not expected to be the product of national priorities of the states. Lately, the American administration has justified its foreign policy options by pressing and acting on its national laws in as many as two policy decisions. The first is the decision of establishing the US embassy at Jerusalem (against all international legal obligations) by claiming to act upon its law styled as the Jerusalem Embassy Act, 1995. The second instance is in the making of the Iran Nuclear Deal where the administration is trying to take legal advantage from its national law (again in blatant violation of international legal obligations) by using the Iran Nuclear Agreement Review Act, 2015. For a country like Pakistan that has had difficult diplomatic choices to make, the rule of law can help in asserting its sovereignty. And, in the present milieu and against a pseudo-hegemon, the most effective and assertive of all legal powers is not covert military action, but the use of criminal law – the case of Colonel Joseph illustrates this point abundantly. It should also stimulate debate in Pakistan about the legal craft that can be used in foreign policy-making and its execution. Mindful of this, this write-up will try to briefly highlight the facts of the case followed by a brief discussion on some international legal issues.
II- BRIEF FACTS
On 7th April, 2018 at about 2.55 pm, Air Defence Attache of the US Embassy, Colonel Joseph Emmanuel’s vehicle ran over a motorcycle at Margalla Road in Islamabad. The incident resulted in the killing of the driver of the motorbike, Mr. Attique Baig, and injuring the pillion rider Mr. Raheel Ahmed. The driver Colonel Joseph was taken to the local police station from the scene of occurrence, where he was later released, after verification from the Ministry of Foreign Affairs. The police registered a criminal case. The police also initiated a request to place the name of the accused on the Exit Control List. Two writ petitions were filed in the Islamabad High Court asking for different reliefs. The judge heard the matter in detail and after examining national and international law passed a detailed judgment. The Honourable Mr. Justice Aamer Farooq of the Islamabad High Court was observed the following:
“Since the ‘immunity’ from trial and punishment is not absolute and is only with respect to the courts of receiving State and a ‘Diplomatic Agent’ can still be tried for the offence in his country therefore one would conclude that there is no ‘bar or immunity’ qua the investigation of a criminal offence, meaning thereby that a ‘Diplomatic Agent’ can be interviewed by the Investigating Agency in the receiving State, however the ‘immunity’ exists from arrest and detention. Moreover, ‘Diplomatic Agent’ is to be treated with dignity and these aspects have to be kept in view while conducting the investigation of the matter.” (Emphasis provided by the author)
The observation of the learned judge is not ordinary. It has repercussions on the foreign relations of Pakistan. Therefore, it is important to analyse the judgment through the following points:
The origins of diplomatic protection can be found in customary international law. In 1960s, however, two international conventions namely the Vienna Convention on Diplomatic Relations, 1961 (VCDR 1961) and the Vienna Convention on Consular Relations, 1963 (VCCR 1963) were codified. Pakistan later ratified the two Conventions and incorporated the two, by reference, into the national law of Pakistan through the Diplomatic and Consular Privileges Act, 1972 (1972 Act); hence, national law on the subject was internationalized. So when a judge applies this national law, she or he is, in effect, applying the international law. The honourable judge discussed Section 3 of the 1972 Act in his judgment, wherein the federal government is vested with the power to modify the immunities and privileges on a reciprocal basis. Thus the international law, as contained in the treaties, has to be implemented according to the national law that is contained in Section 3, which enables the federal government to apply reciprocity in its foreign relations to the extent of diplomats and consular staff. The point to be noted is that the black letter of the law, as applied by the honourable court, was the 1972 Act and not the two international Conventions. The text of the two international Conventions was, therefore, to be read through the lens of the 1972 Act.
STATUS OF COLONEL JOSEPH
In deference to the determination of the Ministry of Foreign Affairs, the honourable court treated the accused Colonel Joseph as a ‘Diplomatic Agent’. Unlike the case of Raymond Davis, the debate about the status of the person, therefore, did not flow.
NATURE OF DIPLOMATIC IMMUNITIES
The honourable judge noted that there was ‘no’ case law on the subject in Pakistan. He, however, noted that in the case of A. N. Qureshi vs. Union of Soviet Socialist Republic, the status related to diplomatic immunities was treated as ‘procedural’. The observation is interesting from the point of view of jurisprudence as it implies that diplomatic immunities do not form part of the substantive law; it may be difficult to agree with such a finding as diplomatic immunities do form a core part of international law as well as Islamic law on such matters. The court itself noted a passage from the United States and Diplomatic and Consular Staff in Tehran vs. Iran which showed that the law on diplomatic immunity is fundamental in its nature. It noted the following:
“There is no more fundamental prerequisite for the conduct of relations between States […] than the inviolability of diplomatic envoys and embassies, so that throughout history nations of all creeds and cultures have observed reciprocal obligations for that purpose […]. The institution of diplomacy, has proved to be “an instrument essential for effective cooperation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means.”
PLACEMENT OF NAME OF COLONEL JOSEPH ON THE ECL
The Exit Control List finds its legality from a statute that obviously makes part of the national law. As recorded in the judgment, the Section Officer of the Ministry of Interior, Government of Pakistan informed the honourable court that the name of the accused was placed on the ‘Black List’ and a decision about its placement on ECL had yet to be taken. The honourable court while relying on Section 2 of the Exit from Pakistan (Control) Ordinance, 1981 read it with the law laid down in the Prime Minister’s Inspection Team, National Highways Authority vs. Zaheer Mirza and left the matter of placing ‘any person’ with the federal government and did not deem it part of the law on diplomatic immunity.
DIPLOMATIC IMMUNITY FROM CRIMINAL PROCEEDINGS
The judgment also discussed immunity from criminal proceedings as contained in the VCDR1961, which specifically provides the following:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
After noting the above-stated law on diplomatic immunity, the judge proceeded to read it in light of the applicable law i.e. the 1972 Act that incorporated the international law into the national legal system. Interestingly, the honourable judge also referred to definition of ‘investigation’. His logic of keeping ‘investigation’ separate from ‘prosecution’ makes perfect sense as evidence can only be collected at the time of occurrence and at the place of occurrence. The function of collection of evidence cannot be left for the sending state. After collection and preservation of evidence, the same can be transferred to the sending state, should the sending state decide to prosecute its own diplomat in its own jurisdiction. By noting so, the honourable judge did not allow immunity to turn into impunity. The police, however, did not perform its part right and did not collect any evidence, as noted in the judgment. The final report under section 173 was submitted to the court with ‘undue haste’.
The rule of law is the way forward for a country like Pakistan in its foreign relations. Permissive regimes of yesteryears can only be remedied by rule-based processes and decisions. The case of Colonel Joseph may be taken as a case study to introduce legal analysis into the decision making matrix of Pakistan’s security establishment.
 First Information Report (FIR) Number 168 under section 320, 337-G, 279, 427 Pakistan Penal Code at Kohsar Police Station.
 Under the Exit from Pakistan (Control) Ordinance, 1981.
 Writ Petitions No. 1385 and 1386 of 2018.
 Para 26 of the judgement.
 Act IX of 1972.
 Restriction of Privileges and immunities.- If it appears to the Federal Government that the privileges and immunities, accorded to the mission or a consular post of Pakistan in the territory of any State, or to persons connected with that mission or consular post, are less than those conferred by this Act on the mission or a Consular post of that State or on persons connected with that mission or consular post, the Federal Government may, bynotification in the official Gazette, withdraw such of the privileges and immunities so conferred from the mission of that State or, as the case may be from all or any of the consular posts of that State, or, as from such persons connected there with as it may deem fit.
 As provided under article 1(e) of the Vienna Convention on the Diplomatic Relations, 1961.
 PLD 1981 SC 377
 I.C.J Reports 1980, p.3
 Para 22 of the judgement.
 The Exit from Pakistan (Control) Ordinance, 1981.
 Para 6 of the judgement.
 2011 SCMR 371
Article 31 of the Convention on the Diplomatic Relations, 1961.
 Section 4(l) of the Code of Criminal Procedure Code, 1898.
 Para 27 of the judgement.
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