The curious case of Raymond Davis

Published: February 7, 2011

The writer was foreign secretary from 1994-97 and also served as Pakistan’s ambassador to Iran (1992-94) and the US (1990-91)

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 8th, 2011.

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Reader Comments (22)

  • Feb 7, 2011 - 11:37PM

    This is the most coherent explanation of this unfortunate situation I have read. It would be interesting to know what you think of the article from Cafe Pyala and in particular what they say regarding the passport with regard to diplomatic immunity.

    Of course, if the American Embassy says that his identity has been incorrectly reported, then the questions change – whose passport is that and how come it was with this person getting arrested?Recommend

  • parvez
    Feb 7, 2011 - 11:50PM

    Nicely spelt out.
    A workable middle path must be found where by both parties don’t lose face. Like agreeing to send him home but he would have to be tried in the US for his alleged crime.Recommend

  • nano thermite
    Feb 8, 2011 - 12:29AM

    This appears to be an excellent and dispassionate article.

    What is needed is for the discourse to become technical and based on law and the Americans should start acting RATIONALLY for a change which they rarely do outside their own country where their own police is very strict. In Israel, Moshe Katsev, the israeli president raped 10 israeli women and was removed and arrested by israeli police. However Roman Polansky raped a 13 year old girl but absconded based on bail from a LOS ANGELES Kangaroo court that failed to protect the victim.

    In India, the americans ran away from the ambit of the indian law after killing lakhs of innocent indians in the state of Bhopal from the methyl isocyanate gas used to make polyurethane plastic precursors.Recommend

  • Feb 8, 2011 - 12:43AM

    Having worked in a diplomatic mission for 2.5 years, I know for a fact that every government notifies the host country’s foreign service before designating a diplomat and asks for an NOC from the host government. Now in Raymond Davis’ case, how come the government of Pakistan not know if he was posted in Pakistan and was unaware of his presence? Do the government of the US not inform the Pakistani government of its diplomatic staff, their credentials and whereabouts and the capacity they’re working in? It is time the government of Pakistan starts answering some important questions before pointing its fingers to the US…Recommend

  • I am the witness dot com
    Feb 8, 2011 - 12:53AM

    This Davis chap (if that is even his real name) is just plain bad news. Every single piece of evidence in this sordid trail points to one thing: he was engaged in some sort of subversive activity and the Govt of Pakistan had better, for once, assert its sovereignty because despite all its incompetence, it actually appears to be on solid ground. The Americans had better understand or be made to understand no matter how brutal the truth may sound to them.

    It is a fact that during the cold war, no diplomat or spy from any side ever carried a weapon or shot anyone.

    The diplomat-spy was always followed BUT a spy like on a U-2 plane who was overt was shot down.

    Thus, Raymond deserves to be hanged. This is the face saving situation for both pakistan, india, and the non-white americans of mexican or chinese or indian or arab stock. The USA has lots of racism and most wars originate from RACISM as fundamental cause.

    The Govt of Pakistan had better, for once, assert its sovereignty because despite all its incompetence, it actually appears to be on solid ground.Recommend

  • I am the witness dot com
    Feb 8, 2011 - 12:56AM

    Pakistan’s ruling elite is CANNIBALIZING its own people. This is what the americans wanted after 911 inside job and teaching chinese, japanese and all other races to do. This is the agenda of the neocons as they numerically small benefit from wars and breakdown of law in various countries.Recommend

  • I am the witness dot com
    Feb 8, 2011 - 12:57AM

    #

    This Davis chap (if that is even his real name) is just plain bad news. Every single piece of evidence in this sordid trail points to one thing: he was engaged in some sort of subversive activity and the Govt of Pakistan had better, for once, assert its sovereignty because despite all its incompetence, it actually appears to be on solid ground. The Americans had better understand or be made to understand no matter how brutal the truth may sound to them.

    It is a fact that during the cold war, no diplomat or spy from any side ever carried a weapon or shot anyone.

    The diplomat-spy was always followed BUT a spy like on a U-2 plane who was overt was shot down.

    Thus, Raymond deserves to be hanged. This is the face saving situation for both pakistan, india, and the non-white americans of mexican or chinese or indian or arab stock. The USA has lots of racism and most wars originate from RACISM as fundamental cause.

    The Govt of Pakistan had better, for once, assert its sovereignty because despite all its incompetence, it actually appears to be on solid ground.Recommend

  • hahmd
    Feb 8, 2011 - 1:32AM

    @parvez:
    Except that Mr. Parvez the two pakistanis he shot would never get a fair trial in the USRecommend

  • hahmd
    Feb 8, 2011 - 1:35AM

    A very well written article except it does not explain the story of the diplomatic visa versus business visa…Recommend

  • Historian and Jurist IBN E KHALDOUN
    Feb 8, 2011 - 1:46AM

    The great muslim jurist and universally acknowledged as the first analytical historian, IBNE KHALDOUN, whose three volume tome was translated from HEBREW or ARABIC into english by Franz Rosenthal – a princeton univ professor – and then again translated into english as a single volume abridged translation by N J Dawood (an iraqi jew) says clearly in these paraphrased words :

    that the life of any nation depends on the implementation of justice in a society.

    This profound fact is extremely important in a multi-linguistic, multi-ethnic, and multi-sectarian country like pakistan. In our country, which is home to jews, christians, zoroastrians, hindus, besides various sects of islam, and various linguistic groups, it is very important to uphold the rule of law to convince everyone to be a dedicated citizen. It is also a fact that any past defficiences and dysfunctionalities of the system cannot justify the solid clear case in this instance.

    Lest, anyone ignore the strength of my argument, lets not be ever NEGLIGENT in our tribute to the law and recall for a moment the GREAT service to this nation rendered by an illustrious son of this soil, Chief Justice Rana Bhagwan Das, during the dark hour of this nation when an american PROMOTED-AND-PRAISED dictator had trampled the jugular vein of this country by firing the judges of the SUPREME COURT.

    Our great nation, whose provisional freedom was won after blood, tears and sacrifices must defend it. Raymond Davis or not, this land must defend the impartiality of the court and without fear or politics.

    After 911 Americans imposed a U-TURN on our nation under bullying, threats, false flag and rushing us into action so we cant think clearly – Its fruit, daily terrorism. We must now resist this NEW U-TURN that they want to impose on our great nation’s JUDICIARY and ITS INDEPENDENCE.

    Thus, if suppose the USA cuts off all the aid and compare it to a U turn on the judiciary, which will be more harmful to our nation can be weighed. This will take the breath out of our militants who think pakistan is whore to America. Hanging this Raymond Davis will actually decrease terrorism and crimes. Letting him go will increase terrorism and crimes. The americans have to decide if they are in war against terrorism or their front line ally.Recommend

  • Historian and Jurist IBN E KHALDOUN
    Feb 8, 2011 - 1:53AM

    The great muslim jurist and universally acknowledged as the first analytical historian, IBNE KHALDOUN, whose three volume tome was translated from HEBREW or ARABIC into english by Franz Rosenthal – a princeton univ professor – and then again translated into english as a single volume abridged translation by N J Dawood (an iraqi jew) says clearly in these paraphrased words :

    that the life of any nation depends on the implementation of justice in a society.

    This profound fact is extremely important in a multi-linguistic, multi-ethnic, and multi-sectarian country like pakistan. In our country, which is home to jews, christians, zoroastrians, hindus, besides various sects of islam, and various linguistic groups, it is very important to uphold the rule of law to convince everyone to be a dedicated citizen. It is also a fact that any past defficiences and dysfunctionalities of the system cannot justify the solid clear case in this instance.

    Lest, anyone ignore the strength of my argument, lets not be ever NEGLIGENT in our tribute to the law and recall for a moment the GREAT service to this nation rendered by an illustrious son of this soil, Chief Justice Rana Bhagwan Das, during the dark hour of this nation when an american PROMOTED-AND-PRAISED dictator had trampled the jugular vein of this country by firing the judges of the SUPREME COURT.

    Our great nation, whose provisional freedom was won after blood, tears and sacrifices must defend it. Raymond Davis or not, this land must defend the impartiality of the court and without fear or politics.

    After 911 Americans imposed a U-TURN on our nation under bullying, threats, false flag and rushing us into action so we cant think clearly – Its fruit, daily terrorism. We must now resist this NEW U-TURN that they want to impose on our great nation’s JUDICIARY and ITS INDEPENDENCE.

    Thus, if suppose the USA cuts off all the aid and compare it to a U turn on the judiciary, which will be more harmful to our nation can be weighed. This will take the breath out of our militants who think pakistan is whore to America. Hanging this Raymond Davis will actually decrease terrorism and crimes. Letting him go will increase terrorism and crimes. The americans have to decide if they are in war against terrorism or against their front line ally.Recommend

  • Anil
    Feb 8, 2011 - 3:10AM

    Why were the ISI agents chasing this diplomat?

    This situation wouldn’t have arisen, had the ISI not been chasing him! Is it normal for ISI to harass all diplomats?Recommend

  • Truthseeker
    Feb 8, 2011 - 4:42AM

    Tamerlane asserted his authority by creating ‘Minarets of Skulls’ of the dead Baghdadis.And now people are suggesting that Pakistan can assert its sovereignty by hanging Davis(?).

    Does not the constitution of Pakistan states that ” the sovereignty of the entire universe( Pakistan is less than a miniscule part of the trillionth of that) belongs to Almighty Allah Alone.
    For a change leave it to Allah and don’t start interfering in His domain.

    Who has the sovereignty of ‘Miani Sahib’ and ‘Mian Mir” in Lahore?Recommend

  • Blithe
    Feb 8, 2011 - 5:21AM

    What’s new in this article? We all know this. We know what diplomatic immunity is.
    In a standard Pakistan Embassy only three or four officers have diplomatic immunity (including the the Ambassador, the first secretary, second secretary).
    The Ambassador’s cahuffer does not have immunity.

    By no stretch of the imagination can Davis be called a diplomat.
    Let’s not waste time with such adademic articles.
    Why can’t the writer just show back-bone and take a stand!
    This is the problem with ‘some’ officers of our foreign offfice!
    Most are good but some just lose track of which country they represent (example, Hussain Haqqani sending frantic cables from Washington in trying to influence this case)

    A lady has just committed suicide over all this!Recommend

  • Noor Nabi
    Feb 8, 2011 - 7:45AM

    Simple question: why did the Foreign Office issue him a diplomatic visa? Pakistan depends on handouts from the US. We all know how this matter will be resolved. Everything else said in this article is purely academic. Recommend

  • binwakeel
    Feb 8, 2011 - 9:09AM

    The writer makes a point but, regrettably, is guilty of dithering. What he has written and what – he warns – would follow in a second article could have been neatly summed up in two pithy paragraphs. The opinion pages should not be used to stretch an argument like a tab of chewing gum. Recommend

  • harkol
    Feb 8, 2011 - 11:08AM

    I find it strange there is so much argument over this issue!

    Diplomatic Immunity can’t really mean ‘license to kill’ or ‘license to rape’. In other words, if the allegations are very serious and are of personal in nature, the immunity shouldn’t come in the way of prosecution.

    A simpler solution to avoid harassment of Diplomatic staff is not let the host country prosecute them in their courts. Instead have an court in third country to try them. This will be a good middle path.Recommend

  • nadir rehman
    Feb 8, 2011 - 2:34PM

    well, if it is not still clear that the said person is a member of consulate or any technical staff then it becomes clear that the government is reluctant in taking actions against him, much because of the pressure from America. We, though, are an independent nation but could still take any decisions in cases like the one stated and many others by ourselves; which is highly dismaying.Recommend

  • stuka
    Feb 9, 2011 - 11:14PM

    The Pakistani hypocrisy vis a vis the Raymond Davis case and the Arshad Cheema case is revealing. The former killed two people in apparent self defence. The latter, Arshad Cheema, was posted at the Pakistani Embassy in Kathmandu. Indian intelligence had accused him of materially conspiring and helping with the case of hijacking the Indian Airlines flight from KTM to DEL. Cheema denied this, obviously, but stayed on his role. He was later arrested red-handed with fake Indian currency and RDX. He claimed diplomatic immunity and went back to Pakistan. Recommend

  • Feb 10, 2011 - 1:32AM

    A fair account, thanks. An equally sensible article by Asif Ezdi:

    http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=30125&Cat=9Recommend

  • Feb 10, 2011 - 3:25AM

    No doubt, you are an experienced personality in-connection with this Particular subject and quite capable to discus the matter hours and hours. Raymond Davis has immunity of course and all privileges and so on, being a diplomat if Pakistan’s foreign ministry recognizes him. As a diplomat or technical advisor or otherwise whatever he is.

    As for as the Vienna convention 1963 is concerned, to which Pakistan is also signatory country, that is applied across the world in which countries embassies or consulates exist.
    To cut the story I should come to the point US diplomats’list presented by the American embassy to the ministry of foreign affairs on Jan 25. But interestingly, his name figured prominently on another list submitted by the embassy to the ministry on Jan 28, while Raymond Davis had been killed two Pakistani citizens on Jan 27, 2011.
    As this news of incident occurred on Mozang Chungi (Qartaba) that reached within minutes to the consulate so the American embassy next morning submitted another list in which his Ramond Davis name was surly prominent.
    What is my opinion is that the Raymond Davis is really not a diplomat He is a former “US Special Forces Solider.”
    Pentagon records show that the man, Raymond Davis, is a former army Special Forces soldier. Public records show Davis and his wife run a Nevada-registered company called Hyperion Protective Services.
    “During the course of investigation, police retrieved photographs of some sensitive areas and defence installations from Davis’ camera,” a source told The Express Tribune requesting anonymity. “Photos of the strategic Balahisar Fort, the headquarters of the paramilitary Frontier Corps in Peshawar and of Pakistan Army’s bunkers on the Eastern border with India were found in the camera,” prosecutors have recommended that an espionage case be also registered against him and it is in the process.
    The police had recovered a digital camera, a Glock pistol and a phone tracker along with a charger from Davis after his arrest. The Punjab government considers Davis a security risk after the recovery of the photos of sensitive installations.
    Foreign Ministry didn’t make any mistake, while American embassy had dived itself; he must enlist him of Jan 25, 2011 why on Jan 28 after incident. This is not fair. The deceased were not common men, their lives were very precious to the establishment
    I have more material in my mind if the response comes.

    With Best Regard Recommend

  • Ashfaq Ahmed Nizamani
    Feb 18, 2011 - 12:55AM

    This is the testing time for Pakistani Institutions. Wether these institutions support the common sentiment and general opinon of the Pakistani People on the one hand and on the other hand are they capable of being able to stand against the mighty Uncle Sam? Let us all hope that Pakistani Institutions must take this incident as an oppourtunity and bring the Killer into the Pakistani Courts and have Justice with the Innocents.Recommend

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