The curious case of Raymond Davis

Raymond Davis shot and killed two Pakistani motorcycle riders, who according to Davis, were trying to rob him. Whether this was murder or self-defense; whether Davis used excessive force to defend himself; or whether he was allowed to carry a gun in the first place are all questions that will have to be established by evidence and its presentation in a court of law.

Currently, however, the question is whether Davis can be tried or if he is entitled to diplomatic immunity as the American embassy claims, and therefore, cannot be arrested, arraigned or tried. The Americans base their claim on the Vienna Convention on Diplomatic Relations, which came into force in 1964, and which, if memory serves correctly, formally became part of Pakistan’s domestic law when the necessary legislation was passed in 1972. Article 29 of the Convention states that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.”

This claim, has come now, but in the immediate aftermath of the incident both the US State Department and the American embassy had maintained that Mr Davis, or whatever his real name is, was an employee of the US consulate general in Lahore. Spokesman Crowley said, on January 27: “We have not released the identity of our employee at this point. And reports of a particular identity that are circulating through the media are incorrect.”

The question of whether he was on the staff of the consulate or the embassy is critical since the privileges and immunities of consular staff are very different from those of the diplomatic staff. The Vienna Convention on Consular Relations of 1963, which came into effect in 1967, states in Article 41(1) that “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.” This would mean that no immunity from arrest would be available even to the head of the Consular post, or any officer having consular rank, if the crime committed is grave.

Assuming that the American that Davis’ first status was a mistake and that they have the documentation to establish this fact. Even while he was in Lahore, he was part of the staff of the embassy and not that of the consulate. The question that arises is: What are the privileges and immunities to which he is entitled to? and where do these flow from? Normally, every member of the embassy — with the exception of locally recruited staff who carry embassy identification cards — would carry a card issued by the ministry of foreign affairs that gives his designation in the embassy and also spells out the immunities and privileges to which he is entitled to?

From what has been published about a note verbale that the American embassy has sent to the ministry of foreign affairs, it appears that no such card was issued by the ministry to Mr Davis because of a disagreement on how he should be described. The embassy, according to a press report, has said that the absence of this card does not affect the right of Mr Davis to get the immunities and privileges to which he is entitled by virtue of the notification that the embassy had sent in January last year. If the press report is accurate, the embassy had notified Mr Davis as part of the “administrative and technical staff of the embassy”. While the question of whether or not immunities and privileges become available without the issuance of an accreditation card by the ministry of foreign affairs can be, and probably will be, debated between specialist lawyers, I would like to take the view that the privileges become available once the ministry has been notified, unless the ministry states in writing that it is not prepared to issue the accreditation card requested.

The point, however, is that the Vienna Convention is very clear about who is part of the “diplomatic staff”. Article 1 states that “the ‘members of the diplomatic staff’ are the members of the staff of the mission having diplomatic rank”. Nowhere has it been stated that Mr Davis had a diplomatic rank, nor is it usual for “members of the technical and administrative staff” to be granted such diplomatic rank. The reason is obvious. This would require that every staff member of the Pakistan embassy in Washington would also be entitled to diplomatic rank and concomitant immunities and privileges.

During the Cold War, the Americans and Nato allies, to pre-empt any harassment of their embassy-employed personnel, had adopted a practice of giving the rank of ‘attaché’, the lowest diplomatic rank, to all their staff members to ensure that they remained exempt from arrest.

It is, however, correct to say that the administrative and technical staff also enjoy immunities under Article 37(2) of The Vienna Convention. The same facility is also accorded under Article 37(3) to service members sent from the sending state.

Mr Davis could be termed a member of the technical and administrative staff or a member of the service staff, and be entitled to this extent of immunity while performing functions in the course of his duties. To my mind, a simple example of the ‘course of duties’ would be that the ambassador’s secretary is driving to the ambassador’s residence to deliver a communication and meets with an accident. In this case, she would be entitled to claim diplomatic immunity. On the other hand, if she were driving home after her day at the office and met with an accident, she would not have diplomatic immunity. Her boss, a person with diplomatic rank, would have immunity in either case.

The question, therefore, is whether Mr Davis was in Mozang Chowrangi in the ‘course of his duties’? The second question that clearly arises is: Who should determine this? And the answer would seem to be the courts of Pakistan.

What can this mean for the future and how have such matters been handled when larger issues are at stake? That would be the subject of my next article.

Published in The Express Tribune, February 8^th, 2011.