Pakistan’s polity is so polarized that the case of Raymond Davis has become an highly emotive issue with the ‘liberals’ and the ‘ghairat brigades’ taking positions that would contribute little to resolve the crisis and an already complicated situation that has been made worse by ‘inspired leaks’ through Pakistani police and needlessly strident posture adopted by the US mission in Pakistan.
Upping the ante in a tense stand-off with Pakistan, US President Barack Obama has jumped into the middle of the diplomatic row and has insisted that the jailed American diplomat Raymond Davis must be freed by Islamabad adhering to the Vienna Convention. In the highest level intervention on the issue, Obama said, “simple principle” of diplomatic immunity meant that Pakistan must release the 37-year-old diplomat. Strictly speaking President Obama is wrong.
The Vienna Convention on Diplomatic Relations was concluded on 18 April 1961 and was put into force on 24 April 1964. The diplomatic immunity as incorporated in this Convention does not apply to Raymond Davis, who has been acknowledged as a member of the US mission’s administrative and technical staff and an employee of the US Consulate at Lahore. Why? Paragraph 2 of Article 37 of 1961 Convention says:
“ Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation.”
For the sake of completeness, the immunity referred to in the above is defined in paragraph 1 of article 31 which is reproduced below:
“A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”
Due to unclear and contradictory positions taken by the US officials since the incident, we can say he is a technical staff or a consular employee, but in substantive terms, a covert ops person on contract. Further we have to look at the Vienna conventions bearing in mind the issues of intent, context, precedence, and substance of the matter. The bottom line is that at an extreme and strict level (he was just a consular staff), he does not enjoy criminal immunity. At a different level (let’s accept he was technical member of the mission), civil suit can still be brought against him. In substance, he was a spy or a staff who committed a grave crime. It was never the intent, spirit, or for that matter the letter of the 1963 Convention to provide protection in case of a grave crime. Article 41 of Vienna Convention on Consular Relation of 1963 states:
1. 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.
2. Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.
3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.
The crux of the matter is that members of the ‘administrative and technical staff’ and consular employees (and this would include contract hires such as Mr. Davis appears to be) enjoy limited immunity but no immunity at all in respect of acts performed outside the course of their duties or if a grave crime was committed. If Mr. Davis was a spook, both his functions and the circumstances in which he was arrested suggest that he was acting outside the jurisdiction of normal diplomatic functions. Hence it is pointless to debate whether he had an official visa or not or whether his name was on Pakistan’s ministry of foreign affairs’ list. Both the points are quite irrelevant in substance.
Now let’s come to the viewpoint that this ‘incident’ threatens to isolate Pakistan and could lead to the suspension of the US aid. While the incident has definitely strained an already complex relationship and has caused a major row between Pakistan and the US, it is hard to believe this single incident would change the nature of the permanent and long-term interests that the US has in Pakistan. The strident tone of some of the US officials, both in public and private, is symptomatic of the growing frustration of the US as a power in decline. The US was caught by complete surprise by the peoples’ uprising in Egypt and belatedly realized how little leverage it had despite doling out $2 billion to Egypt every year – including $1.3 billion to its military. Compared to Asia or Latin America, the US had a lot more influence in the Middle East which now seems set to decline dramatically as a wave of popular revolts rock the Arab world.
It appears that some macho and short-sighted members of the establishment have seized on this vulnerability and have decided to play hard ball with the US to get what they want; more arms, more money, hands-off the ISI policy from the US, and an exclusive say when it comes to dealing with the Talibans and Afghanistan. Regardless of these “strategic and tactical” considerations, the manner in which the extremist card and now this incident is being played up by the deep state to pursue its local and foreign political agendas is unwise and short-sighted. No police officer would have dared to call a member of the American mission a cold-blooded murderer unless he had received clearance from the ‘seniors’ in the security establishment.
If this indeed is the case, and indications are that it is, then it should be a matter of grave concern to all sensible Pakistanis because it was similar brinkmanship and adventurism that led to the debacle in Cargill, in the disastrous policies that involved supporting armed thugs and rag-tag militias to pursue “strategic depth” and liberate Kashmir, and so on. If we want to exploit the US vulnerabilities, there are more sensible and less adventurous ways to do that than whipping up anti-American sentiment and religious extremism through pro-establishment right-wing political and media groups.
On the other hand, the United States should stop talking loudly and making threats and come to a pragmatic conclusion. It should ask itself whether after the loss of Husni Mubarak and the threat of a wave of popular revolts throughout the Middle East, is Raymond Davis worth the risk of destabilizing a weak Pakistan? At least, Pakistan calls itself a US ally; something few major Asian, Latin American, or Middle Eastern governments do. Bottom line? Pakistan and the US should quietly find a way to defuse this crisis and if it involves sacrificing a mid-level spy, so be it. After all, he was a James Bond like character driving around with a Gloak gun (usually carried by military and intelligence operatives) and with a killer aim of a marksman.