The importance of resolving the Raymond Davis issue quickly

Within the context of retaining Raymond Davis or handing him over, the question of his diplomatic immunity is key.

Pakistan-US relations are experiencing unprecedented tensions over the Raymond Davis crisis. For its own national security reasons, it is not a relationship that the US can afford to end, yet the Obama administration and the US Congress are using postponement of meetings and threats to stop bilateral and multilateral aid to force Pakistan to certify Raymond Davis’s diplomatic immunity status and immediately hand him over to Washington. The significance of its relationship with the US notwithstanding, Pakistan could not have conceded to this demand. Several meetings took place in the presidency between key national security policymakers. The first meeting on January 28, chaired by the president, was attended by the prime minister, the foreign minister, the interior minister, the foreign secretary and the ISI chief. The listing of US pressures lay before them in the form of Ambassador Husain Haqqani’s telegram. Despite Interior Minister Rehman Malik’s view that Davis could be handed over, the foreign secretary maintained that he enjoyed no legal immunity.

The tragic and terrifying killing of two Pakistanis and the crushing to death of another by two US government employees including Raymond Davis, under the watchful eye of many Pakistanis in public, and the Foreign Office’s conclusion that according to Pakistan’s Diplomatic and Consular Privileges Act, 1972, Davis did not deserve any special treatment, allowed no space to the government to covertly send off Davis. It is noteworthy that the Consular Privileges Act, 1972, which guides the provision of diplomatic immunity to foreign government employees, has, in fact, incorporated the Vienna Convention of 1961 and 1963. Besides the legal aspect, other factors that also ruled out any possibility of Pakistan ‘delivering’ Davis included public outrage against the killing; the death of the widow of one of those killed by him; the publicly available information that he had little chance of claiming legal immunity, and the Punjab government’s professed stand that the law will be upheld.

Two weeks into the Raymond Davis crisis, a Track-II engagement between America and Pakistan is underway on how to resolve the crisis. One is the pressure track, the other the counter-pressure one. America is exercising all options, with some members of Congress proposing to move a resolution for withholding the yet unreleased aid for fiscal 2011. Additionally, the US is blaming Pakistan for violating international law over the immunity issue. Pressure from the Pakistan government, which continues to maintain that Davis does not enjoy diplomatic immunity, is coming in the form of information leaks about Davis being an undercover intelligence agent; his past record as a contractor; his suspicious activities in Pakistan, including contacts with militant groups in Waziristan; list of guns, bullets and other items available in his car; photographs of Pakistan’s defence posts found in his camera, and so on. The US media, too, has made public some new information about Davis being a special operations soldier in the past.

Independent of all this, there is also the heated public debate being conducted mainly in the media. It is a harsh discourse that feeds from public anger on this issue. The question of why the car and the driver who entered the US consulate, after crushing to death an innocent bystander on January 27, is not being handed over to Pakistani legal authorities is still being raised. Another is that is Pakistani life so cheap? First it was drone attacks and now the killing in broad daylight of three Pakistanis.

That said, all these may be valid questions but are not the ones that should influence how the Pakistan government would deal with the Raymond Davis case. The key question remains that of diplomatic immunity.

Meanwhile, the second track that Pakistan-US governments are engaged in is the crisis resolution track. For starters, the government has assured the US of Raymond Davis’s personal security while in jail. The fact that the governor of Punjab was killed by a member of his own elite police force guard means that the US has a valid concern with regards to Davis’ security. On the issue of immunity, Pakistan has told the US that it can contest Pakistan’s position in the Lahore High Court. And in hiring a lawyer to present its case in LHC, the US embassy has shown its willingness to acknowledge the validity of the Pakistani law in this matter.

Within the context of retaining Raymond Davis in Pakistan or handing him over to the US, the question of his diplomatic immunity is key. The other two questions, one the nature of his crime and the other on his covert activities, are secondary. Significantly, despite Pakistan’s clear position on legal immunity and an equally clear position by America which is insisting that a case for immunity does exist, some grey areas of interpretation may appear in the different vantage points of the two sides. Pakistan’s Foreign Office obviously invokes the Pakistan’s Diplomatic and Consular Privileges Act, 1972 while ruling on diplomatic immunity. The US, meanwhile, is invoking the Vienna Convention of 1961. Their conflicting positions flow from their different interpretation of who holds the final word on diplomatic immunity, the sending country or the receiving country and from what SOPs (standard operating procedures) must prevail in providing diplomatic immunity.

Other than settlement of the immunity issue by the court, the two governments could employ a different approach. One option for the US government could be to reach out to the families for an out-of-court settlement, provided that it pursues this sincerely and with a degree of humility.

Meanwhile, the recurrent problems of this crisis-prone relationship are mirrored in popular narratives and polls. For example, according to the latest Gallup’s annual World Affairs poll, Pakistan is categorised as one of the four least-liked countries in the US. Similarly, for Pakistanis, America is also not a popular country — liked even less than India. Clearly, the chronic issue of mutual distrust needs to addressed through more transparent and candid policy dialogues. And, perhaps, resolving the Raymond Davis crisis in a mutually acceptable way could be an important step in that direction.

Published in The Express Tribune, February 15^th, 2011.