The Raymond Davis case: Options for the government

Published: February 10, 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)

In my last article, I had given my interpretation of the international law provisions (Vienna Convention on Diplomatic Relations) governing immunity for diplomats and the manner in which they applied to Raymond Davis. My conclusion was that, even if Mr Davis was to be treated as a member of the technical or administrative staff, he would have immunity only if it was established that his presence in Mozang Chowrangi on that day was in “execution of his duties” and that was something that had to be determined by a court of law.

An argument can be made, however, that since our own law on diplomatic relations — which made the Vienna Convention on Diplomatic Relations part of our domestic law — provides that the status of the official is to be determined by the federal government, the latter can also determine, through its own means, whether the official was engaged in the execution of official duties when he was at Mozang Chowrangi. This may look like stretching a point but one can be sure that specialists in international law will be able to find some precedent of this having been done elsewhere. The fact is that in international relations, legal issues often have to be settled not only in accordance with the letter of the law, but also, especially where they have acquired an inordinate importance in accordance with what is deemed the larger national interest, with the spirit of the law.

If Pakistan concedes that Davis had diplomatic immunity while in Mozang Chowrangi, Islamabad could ask Washington to waive his diplomatic immunity and send him back to the US to stand trial after he has been released. This, however, is not likely to happen. It is almost certain that if there is a trial — either because Mr Davis is considered ineligible for diplomatic immunity or because his immunity is waived — the trial will be a huge embarrassment to both governments.

Questions will be asked about how he was given a visa extension in Pakistan on a diplomatic passport without describing his relationship with the embassy. Since the ministry of foreign affairs had not issued him an accreditation card, it is unlikely that they would have sanctioned his visa extension. Similarly, questions will be asked about what his real identity is, given the fact that the American State Department spokesman himself had said that the person involved in the Lahore accident was not named Raymond Davis. If the name was false, how did he get a diplomatic passport in that name and how, then, did the embassy in Washington issue him the first visa? If they did it on the basis of a note verbale from the US State Department, then a question would arise about the State Department spokesman’s statement that this was not the name of the individual involved.

It is, of course, a known fact that the State Department has been outsourcing security responsibilities to outside contractors. One such contractor could well have been Hyperion Protective Consultants, LLC, a company that provides “loss and risk management professionals”, and which, according to the reputable ABC TV network, was set up by a “Raymond Allen Davis”. Much more likely, however, is the assumption that the CIA, which now has one of its largest overseas stations in Pakistan, had employed this contractor and had, as a condition of his contract, secured a diplomatic passport for him and had also attempted to get some sort of diplomatic status for him. Cases of this nature are common the world over and the CIA is certainly not the only intelligence agency in the world that uses, or attempts to use, diplomatic cover for its operatives and, more often than not, fails to keep the diplomatic post providing this cover informed of the activities and even whereabouts of its operatives.

It can be taken for granted, however, that the local intelligence agency with which the CIA ‘cooperates’ would know about such an operative and it would only be with its consent that the visa for such an operative would be renewed by the visa issuing authority — in this case, the ministry of interior. It is from such operatives, as much as from more openly acknowledged CIA operatives, that the ISI receives the elint (electronic intelligence) and humint (human intelligence) that has, in many cases, enabled the arrest of terrorists on Pakistani soil.

It would not be in the interest of either country to have this relationship explored in a court hearing, as would inevitably happen if Davis’ case were brought to court.

Perhaps equally importantly from the American perspective is that the chances of a fair trial and the acceptance of Davis’s self-defence plea would appear to be minimal, given the viral public reaction to the killing. Initial reports had made it clear that the police had evidence that one of the two motorcyclists had a criminal record and had earlier that day robbed a Pakistani of cash and a cell phone, but that report has now been overtaken by a report that the two men were from a Pakistani security agency and were keeping an eye on Davis. Another piece of news, the committing of suicide by the young wife of one of the victims because she felt that justice would not be meted out to her husband’s killer, has further exacerbated the ugly public mood. When this is the mood in the streets in a country where a public prosecutor cannot be found to present the case against the killer of Salmaan Taseer and where cases against known terrorists cannot be brought to a successful conclusion because the judges fear that a judgement against the terrorist would put their life at risk, there would, especially in the American perspective, be little chance of a fair trial for Davis.

Whether or not American officials and American congressmen have given threats regarding the impact of this case on American military assistance, the fact is that it is not in Pakistan’s interest to provide fresh fuel for the prevalent anti-American sentiment. For a government that has not been able to take the required decisions on the RGST or the hike in petrol prices and is facing the prospect of serious economic turmoil, there will be little stomach for defying public sentiment and letting Davis go, but the alternative is far worse.

Published in The Express Tribune, February 11th, 2011.

Reader Comments (24)

  • Noor Nabi
    Feb 11, 2011 - 12:09AM

    Najmuddin, you have been the Ambassador to Washington, DC and have also been the Foreign Secretary. Your commentary on this subject, as I wrote earlier, is purely technical and academic. The current situation does not allow us the luxury to indulge in either.

    Your closing comment that “there will be little stomach for defying public sentiment and letting Davis go, but the alternative is far worse” is important. What do you to break the deadlock? Please be specific and, for a change, leave out the technical and academic considerations. We need people with your experience and wisdom suggesting solutions rather than sitting on the fence and lecturing. If you do not have an answer ask Rana. Recommend

  • Arindom
    Feb 11, 2011 - 12:47AM

    Why all these legalese? Since when have relations between Pakistan and US been based on legality and finer provisions of International laws like Vienna Conventions?

    Musharraf was able to cart off Pakistani citizens secretely to other countries for payment.

    US was able to use ‘un-official’ agents inside Pakistan with Government’s understanding.

    Drones attack targets inside Pakistan under some secret deal between US and the military.

    So why all get so hot under the collar over fine legal details – as if they matter at all!!!

    Just let the CIA and the ISI make another ‘deal’ and get the over sordid drama over and done with…Recommend

  • Blithe
    Feb 11, 2011 - 2:53AM

    Great work by Punjab Police!
    They have a recording with the Raymond Davis saying that he is just a consultant working at the Counsulate!

    No way can diplmatic immunity apply. And there is no need for ‘such sensitive’ analysis by this authour! Recommend

  • A. Khan
    Feb 11, 2011 - 5:22AM

    @Arindom: Good points. And equally good point to put our relations on legal and civilized footing.Recommend

  • Truthseeker
    Feb 11, 2011 - 5:39AM

    A voice of sanity in the jungle of rhetoric,honour and nationalistic jingoism.
    The last sentence of this most articulate and rational article sums up the whole dilemma for the government and the people of Pakistan. Recommend

  • Asif
    Feb 11, 2011 - 8:43AM

    http://www.counterpunch.org/lindorff02082011.html

    The US media have been uncritically quoting the State Department as saying that Pakistan is “violating” the Vienna Convention on Consular Relations of 1963 by holding Davis in jail on murder charges. Those reporters should check the actual document.

    Section II, Article 41 of the treaty, in its first paragraph regarding the “Personal inviolability of consular officers,” states:

    “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.”

    In other words, the prosecutorial, police and judicial authorities in Lahore and the state of Punjab are doing exactly what they are supposed to do in holding Davis on murder charges, pending a judicial determination concerning whether or not he can properly claim diplomatic immunity.

    The US claim that Pakistan is violating the convention is simply nonsense.

    There is also the matter of double standards. The US routinely violates the Vienna Diplomatic Accord that governs international diplomatic rights.Recommend

  • Adeel Ahmed
    Feb 11, 2011 - 10:16AM

    Respectfully sir, I disagree.

    The only option this government has is to try Davis, and give him a fair trial, as much as possible. If any “diplomatic” channels are used, it would only fuel more anger and hated for the Americans, hampering their own efforts in “winning the hearts and minds”.
    The only way this inept government can save some face in front of its people is if, in return for Davis, they can get back Dr. Aafia, and others imprisoned at Guantanamo.
    That would be a deal Pakistanis on the streets will accept, and this government would not only be able to settle the dispute, but it would also gain massive popularity and respect, since Pakistanis in general will feel their honour and dignity as been upheld. Right now, with all the drones and threats of stopping aid money and CIA operatives going on killing spree, Pakistanis feel they are being forced to be beneath USA… and that our sovereignity is being trampled upon.
    To make this right, the government needs to be firm and stern with USA, and demand return of Dr. Aafia (who also had to face trial in American courts being a Pakistani herself)… and others who are imprisoned at Guantanamo without trial. Recommend

  • shoaib sarwar
    Feb 11, 2011 - 12:37PM

    Mr Najmuddin with all his experience has given a very dispassionate analysis of RDs case but has not given any worth while suggestion as to how the foreign office mandarins or govt leadership should handle the situation. Could the following incident be quoted as a precedent for handling the RD case within the ambit of international diplomatic laws??

    In the 1997 case, Gueorgui Makharadze, the Georgian ambassador in Washington, had killed an American teenager in a road accident. The then US president Bill Clinton had flatly refused to grant diplomatic immunity to the Georgian diplomat. The U.S. exerted extreme pressure on the Georgian government to lift his diplomatic immunity even though it was not a deliberate shoot-to-death killing, as in the case of Raymond Davis, but a car accident. The Georgian government finally relented “in the interests of U.S.-Georgian relations and on moral and ethical grounds.” Makharadze was tried in a U.S. court, found guilty of manslaughter and sentenced to 21 years in prison. While lifting Makharadze’s diplomatic immunity, then Georgian President Eduard Shevardnadze observed, “I cannot imagine diplomacy and politics devoid of moral principle.” During sentencing, Judge Harold L. Cushenberry Jr. of District of Columbia Superior Court said he did not impose an extraordinarily stiff sentence on the diplomat, Gueorgui Makharadze, to avoid discouraging other countries from waiving diplomatic immunity in future criminal cases. and consequently Makharadze was sentenced to 21 years by a US court. Recommend

  • parvez
    Feb 11, 2011 - 3:02PM

    Disappointed, I was expecting a clear neutral analysis with a realistic conclusion.
    You end by saying the alternative is far worse. Agree it would be worse for this pathetic government but far better for the poor people in the long run who have over 50 years got nothing from this relationship. Recommend

  • Feb 11, 2011 - 3:54PM

    Diplomatic options are not available to economically parasite nations countries First we have to learn to live within means and expect the transparent diplomatic channels to open! For the time being we have to just enjoy the CARROT and live with the STICK! Raymond Davis is far too superior to be tried in Pakistan.Recommend

  • Arifq
    Feb 11, 2011 - 4:05PM

    Very well written article, shows the writer in good stead but we all know what the end is going to be, everyone loves Raymond. Recommend

  • kumar
    Feb 11, 2011 - 8:39PM

    I see all these fine arguments.
    very often, some legal nonsense is used to start something. Because either side has to hang their hat on some argument. For example, when the brits conquered sind, they made an issue of some “agreement violation”. etc. so at the end of the day,

    a. pakis can give americans a hard time about supply line to afghanistan. that’s it.
    b. if the u.s can’t get around (a), they will have to give in. Otherwise, they will force their way through, one way or another.

    that’s it.Recommend

  • Sean
    Feb 11, 2011 - 9:42PM

    Again Ray Davis has diplomatic immunity. It is the law. It has to (and will be) be respected even in Pakistan!Recommend

  • a ercelan
    Feb 11, 2011 - 11:05PM

    imagine a southasia where pakistan is freed from the clutches of washington, and hence from the adb of manila and tokyo! but our class, ns included, just cant survive and hence will keep upholding state against country, territory against people, capital against labour, market against community, commerce against nature. would it not be great if a tsunami drowned this class?Recommend

  • mawali
    Feb 12, 2011 - 3:11PM

    With the Pakistani Government wavering and remaining nebulous at best on this issue. The US however, has from the day this unforunate incident occured declared Ray Davis a Diplomat and under diplomatic immunity.

    I am in Pakistan these days it makes my head spin to hear rhetoric with no objective and devoid of facts not only on this issue but larger more important issues facing Pakistan.

    The facts as reported by Pakistani television right after the incident occured suggested that these two unfortunate souls were nothing more than thugs and cell phone snathers. Second one of the dead was holding a gun.

    The Pakistan FO needs to come out clearly and declare based on facts what they have for evidence regarding Ray Davis’s diplomatic status.

    Bottom line the man did what any sane person what do; he shot these thugs in self defense!Recommend

  • Anoop
    Feb 13, 2011 - 8:35AM

    Pakistan is cutting its nose to spite the face. US is Pakistan’s largest donor, not just in the past 10 years, but its entire existence.

    I for one welcome if US severed all diplomatic ties and cuts of aid, which has allowed Pakistan to punch above its weight. This may not happen tomorrow but after the Afghan Withdrawal in 2014, the process for which starts from July 2011, this will definitely happen. 3 more years of free stuff, Guys! Then, you will realize Pakistan’s true standing in the comity of nations.Recommend

  • Mastishhk
    Feb 13, 2011 - 9:28AM

    The first unfabricated/undoctored reports that came out had witnesses stating on national television that the two shot were trying to rob Ramon Davis by Brandishing Guns. Its was later when irrational hysteria was whipped up that pressure was build up and the truth got buried sumwhere in the anti US rhetoric. The fact that Raymond Davis is a Diplomat cannot be denied and he should be released immediately to prevent Pakistan’s further alienation in the international arena. Its maybe noteworthy that no significant nation has come out in Pakistan’s support and includes China. I remember someone earlier mentioning that we should refuse to pay all international loans and hang Raymond Davis. We can do better than just making Juvenile comments and understand the disastrous consequences of such an action.
    Its time to let Raymond Davis go. We have bigger issues that warrant our attention !Recommend

  • Harish Advani
    Feb 13, 2011 - 5:39PM

    @Anoop:
    In the final analysis if ”Push came to shove”,the US will declare Pakistan a terrorist state,and the average person on the street in Pakistan seems oblivious/ignorant of the consequeces of such a move.Perhaps those few who have a thinking mind will read about Libya’s experience with such a declaration by the US and world at large.Recommend

  • Anoop
    Feb 13, 2011 - 6:54PM

    @Harish,

    Yes. Afghanistan is a lost hope, almost. Maybe Iran, Tajikistan, China and others will come to their senses and help it out. US will definitely remember Pakistan’s contribution in sheltering the Taliban.

    Pakistan, unlike Iran has no Oil resources to bank, nor is an Economic player. Democracy is a lost hope in Pakistan. There are hardly any reasons in Pakistan the West will find to support it.

    If you consider the recent floods and the amount of money given by the West, initially and the amount pledged by Pakistan’s other “brotherly” allies(China, Saudi Arabia,etc), you will get a good idea what everyone thinks and acts.Recommend

  • Umair Khan
    Feb 16, 2011 - 12:56AM

    Good Points by Arindom ” Since when have relations between Pakistan and US been based on legality and finer provisions of International laws like Vienna Conventions?”

    To add another example to yours, Handling of Afghan Diplomat Mullah Abdul Salam Al Zaeef by Pakistan to Americans and then his treatment in Guantanamo show that relations of both US and Pakistan does not depends on Laws of Civilized nations.Recommend

  • Feb 21, 2011 - 2:18AM

    American who sparked diplomatic crisis over Lahore shooting was CIA spy. There were two acts to Davis; one, he perhaps rightfully killed in self defense. For that he might be allowed back home. 2, he was found with prohibited area pictures, a telescope and few other implements. Now that is a serious hand in the till for which he is being held. The right place for handing of nukes to terrorist and then be taught their use is over the US soil itself. I really hope that wont happen. 3rd, a hit a run crime attributed rightly to a US embassy vehicle.
    http://thecurrentaffairs.com/raymond-davis-is-a-cia-spy-not-a-diplomat-british-newspaper.htmlRecommend

  • Michael Piston
    Feb 28, 2011 - 3:50AM

    Although Article 37 of the Vienna Convention provides that Embassy technical and administrative staff are subject to the CIVIL and ADMINISTRATIVE jurisdiction of the receiving state for actions outside the scope of their duties, it also provides that such staff members shall enjoy the benefit of Article 31 which provides that “A diplomatic agent shall enjoy immunity from the CRIMINAL jurisdiction of the receiving State” without exceptions. Accordingly, there is no exception to the immunity of technical and administrative staff to Pakistani CRIMINAL jurisdiction. Therefore, contrary to the author’s assertions, if “Mr. Davis” is in fact a member of the U.S. Embassy’s technical and administrative staff then he definitely cannot be prosecuted (by Pakistan) under the Vienna Convention for murder or any other criminal offense, even if his actions were outside the scope of his official duties.Recommend

  • Michael Piston
    Feb 28, 2011 - 3:50AM

    However, he can be sued.Recommend

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