The Raymond Davis case: Options for the government

There will be little stomach for defying public sentiment and letting Davis go, but the alternative is far worse.


Najmuddin A Shaikh February 10, 2011

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.

COMMENTS (24)

Michael Piston | 10 years ago | Reply However, he can be sued.
Michael Piston | 10 years ago | Reply 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.
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