America’s mala fide intent?

It seems there are some in the Pakistani media who will buy into the official US line on Davis and get irked, by the likes of this columnist, enough to name her in their rather histrionic defence of the murderer (regardless of his rather murky status he did kill in cold blood)!

And seeing Christine Fair appear on these pages reminded me of the time her fiddling with statistics on Occupied Kashmir was questioned at a National Defence University seminar in Islamabad, some years ago. We now also know how the US clamped down on its own media on the Davis case and it was an impressive reminder of how ‘free’ the mainstream US media really is. However, there has been a somewhat belated awakening amongst some even in the US media, including an interesting piece by Charles Savage in the New York Times, which seeks to question the whole immunity issue. Perhaps our unquestioning defenders of Uncle Sam should stop and pause, notwithstanding the aid flows into the media.

Meanwhile, the US continues to muddy the grounds of the Davis case and, unfortunately, has succeeded in pushing into the background the issue of what happened to the murderer of the third victim and his car. Amongst the more bizarre logic being offered for freeing Davis, is the argument that the trial would not be seen as ‘fair’ — presumably by those in the US. This is ironic given how the Dr Aafia Siddiqi trial by jury in New York was a visible sham and yet, that has not prevented the US from penalising the lady in a most despicable fashion. In any case, are we to try murderers based on how the US views these trials and condemn the credibility of our judiciary proactively?

While most arguments dealing with Davis continue to touch on the same issues, some new developments are interesting. The first is the growing evidence that Davis was indulging in spying, which makes it relevant for the Pakistani state to formally frame charges of espionage against him. In this connection, his links to banned terrorist groups are also coming to light (including in a report in this newspaper). Under the law, no one can maintain contact with such groups without being questioned at the very least. To allow foreigners to freely have truck with such groups is even worse — whatever their intent. Nor is it far-fetched to assume that Davis may have had something to do with attacks against Pakistan’s security establishment, specifically the military. After all, why were pictures of sensitive military areas found on his person? The point here being that, at a minimum level, the espionage issue should not be neglected and if, as most Pakistani experts think and his visa shows, he is not a diplomat then, he can certainly be tried and punished for this very serious crime. If nothing else, the duplicity of our successive governments, in terms of hidden deals with the US, certainly needs to be exposed through this case and, perhaps, other Davis-like characters expelled forthwith.

The US has now floated another idea — intended to be a threat of sorts from their blinkered perspective — and that is to take the whole issue of Davis’s immunity to the International Court of Justice (ICJ) under the Optional Protocol attached to the 1961 Vienna Convention. Presumably Pakistan is also a signatory to this Protocol and, therefore, if the US decides to take the issue to the ICJ, according to the Protocol, it becomes incumbent upon Pakistan to accept, not only this move, but also the decision that may follow, since, under Article I, disputes of interpretation or application of the Convention “shall lie within the compulsory jurisdiction of the ICJ”. Of course, Articles II and III allow a certain time period in which other options can be exercised, including an arbitral tribunal or a conciliation procedure, since, once the ICJ is approached, its decision in this context will be binding on both parties.

The ICJ option is a viable one since it will clear the issue for both the US and Pakistan but this Optional Protocol (where the word “optional” is actually a trifle deceptive) is applicable to the 1961 Vienna Convention and the whole issue is whether Davis is covered by this or by the 1963 Convention relating to Consular matters, since the US itself first claimed that Davis was attached to the US Consulate in Lahore. It is yet another irony produced by the Davis case, that the US, which is loathe to have anything to do with the ICJ and with the notion of international courts per se, (one can still remember how the US rubbished the ICJ Advisory Opinion on the US mining of the harbour in Nicaragua and how the US has rejected the idea of the International Criminal Court (ICC) precisely to allow its Davis-like characters to kill with impunity), is now going to initiate proceedings in the ICJ. Or, perhaps, that is merely a new form of pressure with which to browbeat the present government. Whatever the purpose, the ICJ is a viable option and Pakistan should not be fearful of it but, surely, first the issue of whether it is the 1961 or the 1963 Convention that applies to Davis, needs to be settled.

One issue has become evident: the US agenda for Pakistan has growing question marks to it. The appointment of Marc Grossman as Holbrooke’s successor is a case in point. A known critic of the ICC, as vice-chairman of the Cohen Group, he has been closely associated with furthering US-India relations, including in the aerospace and defence fields. The Cohen Group was in the forefront of lobbying for the US-India nuclear deal. Earlier, as undersecretary of state for political affairs, Grossman was the main architect of the “Next Steps in Strategic Partnership between the United States and India” initiative. An active Indophile will now be dealing with Pakistan on behalf of the US. This really says it all about US intent in Pakistan.

Published in The Express Tribune, February 26^th, 2011.