Ascertaining Raymond Davis’s identity

Irrespective of his identity or legal status, the question is whether he should be allowed to get away with murder?


Rana Sajjad Ahmad January 29, 2011

The murder of two Pakistanis by the American man identified as Raymond Davis has riled many Pakistanis. Besides fanning the anti-American sentiment, it has also perplexed Pakistanis because of the rather mysterious manner in which the whole incident played out. From a legal standpoint, solving the mystery of the American’s identity is the most critical part of the ongoing investigation, since it would determine whether or not he has diplomatic immunity from criminal prosecution in Pakistan.

There are some indications that Raymond Davis is not a diplomat. However, irrespective of his identity or legal status, the relevant question is whether Raymond Davis should be allowed to get away with murder? This question ties in with the larger issue of how the principle of diplomatic immunity could be abused under certain circumstances.

By way of background, the foundation for this principle was laid down in the Vienna Convention on Diplomatic Relations, 1961, which is considered the most important international agreement on diplomatic immunity. The relevant part of Article 31 of this Convention sets out the immunity of a diplomatic agent from the criminal jurisdiction of the country in which the diplomatic agent is working. A diplomatic agent has been defined in Article 1 of the convention as the head of the mission or a member of the diplomatic staff of the mission which includes administrative, technical and service staff of the mission. Therefore, strictly in accordance with the Vienna Convention, if Raymond Davis’s identity as a diplomatic agent is established, he should be let off the hook.

While this law may seem discriminatory and abhorrent, especially in this particular case, at the state level, it is quite fair and uniform in its application to diplomats. In fact, in the area of diplomatic relations, it has its roots in the principles of goodwill and reciprocity. The US itself is no exception in generously granting diplomatic immunity even in some cases involving serious offences. In one case, the son of a military attaché from Ghana who was suspected of committing 15 rapes was allowed to leave the US without being prosecuted on the grounds of diplomatic immunity.

So why is the principle of diplomatic immunity so widely recognised and enforced? One of the rationales for granting diplomats this privilege is their lack of understanding of the local customs. If this is the case, what is the basis for granting immunity from criminal prosecution? It should be easy to understand that regardless of what state the diplomat is working in, rape and murder are not part of its local customs.

Under the Vienna Convention, the only way a diplomat could be prosecuted for a crime is if his own state expressly waives the immunity. Yet, it could be charactericed as an irrelevant provision that would hardly be enforced regardless of how heinous the offence is. In the case of Raymond Davis, the US government has already raised the issue of diplomatic immunity. Assuming Raymond Davis is a diplomat, the demand is legal. Moreover, I cannot think of many states that would waive this immunity to enable prosecution of its diplomats in a foreign country.

Clearly, the principle of sweeping diplomatic immunity needs to be revisited. Like any law, the benefits of the law should be balanced against the costs. Under prevailing principles of international law, the benefits of sweeping diplomatic immunity seem to outweigh the costs, including the costs of not prosecuting diplomats and their family members for rape and murder.

Published in The Express Tribune, January 30th,  2011.

COMMENTS (48)

Khan | 10 years ago | Reply Raymond Davis is not a diplomat because under the statute of vienna convention on diplomatic relations 1961 articles 10, 13, 17 and 19, the Ministry of Foreign Affairs has to be notified of a diplomat's arrival n his precedence in the receiving state. Qureshi's statement of Davis as not being notified by the Foreign Ministry as a diplomat makes it clear that he isnt a diplomate. What's the point of holding up arguments with US regarding his immunity blanket once he isnt a diplomat at all??!!
Aamir | 10 years ago | Reply everyone here is looking raymond case on different angles, everyone is free to give his opinion, everyone here loves pakistan................let us suppose the 2 boys killed were robbers, and they want to stop an American for dollars. but..........can America answer these questions that...! 1) why an American embassy official in private car with no embassy plates was there. 2) why he was given a full back cover with high speed jeep. 3) why he was holding GPS, Maps, Digital cam, compasses etc in his car. 4) why he was fully loaded with illegal weapon. 5) why he took pictures after killing the boys. and many questions which are waiting in minds of pakistanis. if i say, that Raymond Davis tried to hire these boys on payment for terrorist activities and due to some mistakes in process they chase him and tried to clear the issue....... what would be the answer ? as police recovered Mobiles and foreign currency which may be given them in bargain. he killed one boy from inside of his car and other injured was killed when he chased him or from out of his car. (people present on crime scene reported this) he tried to remove the witness of his failed bargain. he was given a GPS with tracks to locate his target because he might be newer to that area. his GPS should also be checked to have already saved coordinates. all this is not enough but more to have clear decision.
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