US REFUSES TO BACK OFF OR BUDGE ON INDIAN DIPLOMAT CASE

[jaunty]

@Solomon2

Just a follow-up on our discussion on the Raymond Davis case, Hussain Haqqani, the Pakistani ambassador to the US at that time has written an article today where he reveals that Raymond's name was added to the list of diplomats after he had committed the crime. No wonder it could not be used at that time.

The U.S. claimed that Davis carried a diplomatic passport and therefore enjoyed diplomatic immunity. Pakistan’s Foreign Office found that Davis’ name had been included on the list of diplomats serving in Pakistan only after he had committed the murders, which did not extend him immunity under the Vienna Convention.

Husain Haqqani on America’s Diplomat Shame - The Daily Beast

 

[Bang Galore]

Even if the new position offers full immunity and she gets it, the immunity cannot be retroactively effective against the crimes she is charged with already.

Actually it can, there is a precedent of a Saudi national in the U.S. who wasn't even a diplomat at the time of an incident but was made so after the fact. The U.S. government decided that he immunity was retroactive, the local prosecutors appealed, the courts agreed with the government decision.

However, even if this was denied in this case, she still cannot be touched as long as she has immunity. The case may remain on the books but unless she goes back when she is no longer covered by immunity, nothing will happen.

From the state department guide on immunity:

"Criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists."

 

[VCheng]

Actually it can, there is a precedent of a Saudi national in the U.S. who wasn't even a diplomat at the time of an incident but was made so after the fact. The U.S. government decided that he immunity was retroactive, the local prosecutors appealed, the courts agreed with the government decision.

However, even if this was denied in this case, she still cannot be touched as long as she has immunity. The case may remain on the books but unless she goes back when she is no longer covered by immunity, nothing will happen.

I am quite sure that both governments will be able to find a way forward with this case.

 

[RescueRanger]

@Solomon2

Just a follow-up on our discussion on the Raymond Davis case, Hussain Haqqani, the Pakistani ambassador to the US at that time has written an article today where he reveals that Raymond's name was added to the list of diplomats after he had committed the crime. No wonder it could not be used at that time.

Sir,

Everyone and their uncle knew RAD did not have Dip Immunity, he was a DOD CONTRACTOR to post Peshawar and was in Lahore at the time of the Incident. Consular immunity only covers you for consular activity in your consulate, not outside it.

RAD also being DOD Contractor was not on the list of Dip Corp staff, nor on the Dip Corp roster. Dip Corp roster is HUGE and includes incoming Generals, their aids and even their PSD: Protective Security Detail, What weapons they will be "legally" carrying and "where they will be residing".

This case cannot be confused with RAD case because in essence RAD was a HUMINT specialist from the Human Terrain System "Human Terrain System - Wikipedia, the free encyclopedia". And now we know where he was here don't we

Your DIPLOMAT is not accused of Spying or MURDER. So to draw parallels to RAD is wrong.

 

[Pakistanisage]

real world does not work like that. Trust me, an US diplomat in India can get away with grave crimes easily. Take raymond davies case in which they tried everything in their book to secure their personnel.
Am pretty sure India will try a few tricks.

Raymond Davis got out by using a clause in Pakistani law which allows victim families to ask the State to withdraw charges if a Financial reparation agreement has been worked out. Had it not been for that law, Davis would be rotting in Pakistani Prison. Under the deal , US paid millions of Dollars to buy Davis freedom.

 

[sincity]

I am quite sure that both governments will be able to find a way forward with this case.

US justice department is separate entity from US state department, US justice department have the jurisdiction power over legal matter of the state. This case fall on the US justice department shoulder, therefore render US state department can not resolve this case through diplomacy channel.

 

[VCheng]

US justice department is separate entity from US state department, US justice department have the jurisdiction power over legal matter of the state. This case fall on the US justice department shoulder, therefore render US state department can not resolve this case through diplomacy channel.

I understand that. But I remain confident of a solution.

 

[livingdead]

Raymond Davis got out by using a clause in Pakistani law which allows victim families to ask the State to withdraw charges if a Financial reparation agreement has been worked out. Had it not been for that law, Davis would be rotting in Pakistani Prison. Under the deal , US paid millions of Dollars to buy Davis freedom.

well, that was one way out without insulting you, so I dont want to speculate what would have happened if the law was not there.
Take another unrelated case, drone attacks. The CJI who was suo motu friendly judge, never really bothered about it. The govt, I can understand why they are reluctant. But judicial system is also subverted there.

What I am pointing at is, local judicial system can be subverted for foreign relation. India does not have that level of inflence I agree, but one should not rule out a compromise completely (because US justice system is not competely sacrosanct)

 

[sincity]

I understand that. But I remain confident of a solution.

Only US supreme court can alter the decision of the lower court.

 

[VCheng]

Only US supreme court can alter the decision of the lower court.

What decision? The case has yet to be presented in any court as of now.

 

[sincity]

What decision? The case has yet to be presented in any court as of now.

Criminal court already indicted the defendant and allowed defendant to post bail, the verdict still not decide therefore no decision. In other for US state department reject the retroactive immunity decision by the lower court, US state department need to appeal to the supreme court to overturn the lower court decision not the US executive brand or legislative branch of the US government. Supreme court hold the highest law of the US.

 

[Bang Galore]

I understand that. But I remain confident of a solution.

The 11th Circuit Court of Appeals in an earlier case(of the Saudi national I mentioned) upheld the point of immunity that I made earlier. That is the judicial position.

"Criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists."

 

[Pakistanisage]

Criminal court already indicted the defendant and allowed defendant to post bail, the verdict still not decide therefore no decision. In other for US state department reject the retroactive immunity decision by the lower court, US state department need to appeal to the supreme court to overturn the lower court decision not the US executive brand or legislative branch of the US government. Supreme court hold the highest law of the US.

US has stated it is not willing to withdraw the case. This is a matter of law enforcement at New York State level and Federal government rarely interferes with the State Govt. Domain. Once the legal process starts it is very difficult for the Federal Govt. to interfere because that amounts to obstruction of Justice and as such Federal Governments hands are tied.

Let us see how this cookie crumbles.

 

[sincity]

US has stated it is not willing to withdraw the case. This is a matter of law enforcement at New York State level and Federal government rarely interferes with the State Govt. Domain. Once the legal process starts it is very difficult for the Federal Govt. to interfere because that amounts to obstruction of Justice and as such Federal Governments hands are tied.

Let us see how this cookie crumbles.

Cookie crumbs are good taken with some glass of milk.

 

[cyphercide]

Wow, looks like the US is getting ready to perform " Body Cavity Search " on Manmohanji and Sonia Didi ! This spat is getting worse by the day....

You're welcome to try. Given the huge anti-Congress wave in India, I don't think many would mind.

I would suggest waiting till they retire from political life to add a touch of realism to the scenario.

Back on Topic, I think India is going to BACK PEDDLE on this case pretty soon because US refuses to budge and is insisting on trial of Devyani Khobragade.

That is the whole point. India cannot back-pedal from this case because of the high stakes involved. To quote the language in usage, "creative solutions" will have to be found.