Surely a screenplay is already in the works. An American diplomat guns down two men in broad daylight in Lahore, Pakistan. The diplomat, who secretly works for the CIA, is apprehended and turned over to the local police. In his car, according to news reports, is a Glock 9-millimeter handgun, 75 rounds of ammunition, a global positioning system device, a survival kit and a satellite phone. As U.S. officials from the president on down press for his release, he is held in a Pakistani jail, his food sniffed by dogs for fear he will be poisoned.
This improbable story, of course, really happened in January. Although obscured by the unprecedented unrest in the Middle East, the affair of Raymond Davis — a onetime Green Beret who became a CIA contractor — threatens to endanger the critically important and highly volatile U.S.-Pakistan alliance.
The Obama administration asserts that Davis is a diplomat, who, under international law, is immune from local prosecution — even on charges of murder. Pakistan, facing an infuriated public highly suspicious of the United States in general and the CIA in particular, insists Davis' future is a matter for its courts to decide. On the streets of Pakistan, crowds have gathered to protest the killings and to burn American flags.
The issue has become so tense that last week top U.S. and Pakistani military officials, including Army Gen. David H. Petraeus, the commander of U.S. forces in Afghanistan, and Adm. Michael G. Mullen, the chairman of the Joint Chiefs of Staff, met in Oman to try to sort out the crisis. American officials rightly fear that the incident, which may have been the result of an attempted robbery, will cause a free-fall in U.S.-Pakistan relations, jeopardizing key cooperation in the wars against the Taliban and Al Qaeda.
To appreciate why the two nations are so divided on the Davis affair, it is essential to understand the arcane and musty world of diplomatic immunity.
For centuries nations have been trading envoys. Ambassadors, and the embassies they command, have long been treated as tiny outposts of the sending state — a chunk of territory that figuratively is taken from one state and dropped into another. And just as one state cannot invade or exercise legal jurisdiction within the territory of another, it follows that the embassy and ambassador are immune from the laws and jurisdiction of the host state.
These basic rules developed over many years but were codified in a 1961 treaty known as the Vienna Convention on Diplomatic Relations. That treaty specifies that embassy staff, as well as "administrative and technical staff" — the category Davis falls into — are immune from any prosecution by the host state. Nor can they be arrested or detained. Similarly, local police typically cannot seize the property of embassy staff or tax their income.
Given these rules, it is no surprise that spies are often hidden among embassy staff. The only recourse for a government that suspects a diplomat is really a spy is to send him or her back home. For example, a CIA agent named Cheri Leberknight, who worked at the American Embassy in Moscow and had diplomatic immunity, was captured in 1999 by Russian agents while en route to meet an informant. She was turned over to U.S. officials and sent home. Many similar incidents have occurred around the world.
The rules of diplomatic immunity function to keep international relations flowing smoothly. Were diplomats subject to arrest or even taxation, local officials might harass them or use their police powers as a pretext to pressure the other nation politically. Diplomats would be like hostages, at the mercy of local governments and unable to do their job effectively.
Of course, diplomatic immunity creates problems too, as the Davis affair amply illustrates. United Nations diplomats in New York, for instance, famously refuse to pay parking tickets. (At least some do: One study found that diplomats from Canada, Sweden and Japan had few delinquent tickets, while those from Chad, Sudan and Albania had many more — and in the case of Kuwait, nearly 250 unpaid tickets per diplomat.)
But worse crimes do occur. In 1997, a drunken diplomat from the former Soviet republic of Georgia caused a five-car pileup in Washington that killed a Maryland teenager. And in 1984, a British police officer named Yvonne Fletcher was killed by bullets from the Libyan Embassy in London, apparently fired by a diplomat.
Fletcher's killer never faced prosecution in Britain. But the Georgian diplomat was tried in the United States and sentenced to seven to 21 years in prison, because Georgia waived his immunity. As this implies, diplomatic immunity is not ironclad. But it can only be removed by a diplomat's own government.
There is no sign that the Obama administration intends to strip Davis of his immunity. Nor does Pakistan seem inclined to send him back to the U.S., though various deals, including a possible prisoner swap between the two nations, have apparently been floated. Many Pakistanis are furious about the killings and see the Davis affair as proof that the CIA is orchestrating plots and running rampant inside their national borders. Meanwhile, Davis remains in a Pakistani jail as the two governments struggle to find a solution. One side or the other will soon have to blink.
Kal Raustiala is professor of law and director of the Burkle Center for International Relations at UCLA.