UPDATED: The "Raymond Davis" Case: the part the US plays

For update as of 13 February (Pakistan time) see post above on this blog as well as on blogsite: One Heart For Peace for this same date.

photo from AP wires showing widow's body with family member(s). The woman widowed as reaction to husband's death due to crime committed by an American named "Raymond Davis" committed suicide. Mr. Davis has been called differing names by differing American officials). She said before taking the poison that she feared the murderer would be set free.

This incident and all that is entailed by the Pakistani justice system is yet another crucial conflict is exposing the distrust between the US and "Ally"? Pakistan. Although the news from Egypt on the protests is huge and deserving - we ignore this current conflict in Pakistan to the detriment of crucial relationships with a named "ally". Doesn't this case affect us all? (see items UPDATED Tuesday & Wednesday 8-9 February, 2011 as well as the KEY brief from a lawyer familiar with immunity laws -find this below the wired news)

First, here's a brief summary I've paraphrased with liberty from a larger piece by a friend and journalist:

On Thursday, 27th, an American shot down two motorcyclists in Lahore. Another car, apparently connected with the same American, overran a civilian within minutes. The one who shot the motorcyclists escaped from the scene but was chased by the traffic police and arrested. He was identified as Raymond David, an American who had once been intercepted while trying to enter the cantonment with a weapon (which diplomats are not usually supposed to carry).

The law minister promised that access would be gained to the driver of the other car by the next evening. This promise was not known publically to have occured.

The next day, the police got a six-day remand of Davis from the court. Davis pleaded self-defense. Highly suspect: the autopsy reports showed that the victim who died on the spot had received four bullet wounds, the one who died in the hospital had received three, and the one ran down by the other car died of head injuries.

The following day, the US embassy demanded Davis' immediate release under diplomatic immunity. This was turned down by the Pakistani government since the issue was sub-judice and the embassy was asked to present its argument in the court.

In the meanwhile, the Supreme Court chief justice Javed Iqbal ordered that Davis should not be allowed to leave the country.

Notable: this incident happened during the same time period Pakistan's Supreme Court had given hint that it would press criminal charges against officials involved in the abduction of the "missing persons".

On separate charges of corruption, the Federal Investigation Agency (FIA) had started investigations against its own chief on orders from the Supreme Court. Hence, there is a high expectation in the public that the law of the land would be upheld even against odds.

"Respect the law, and trust the judiciary to dispense justice." Is not this the noblest and safest approach for those who can influence public opinion in the case of Raymond Davis in Pakistan, US or elsewhere? Since Pakistan and the US are allies (and both are facing more and more near unsurmountable challenges) why not fall back on an ideal that ought to be equally dear to all civilized societies can be a good way of responding to this latest crisis.

In Washington, the State Department announced that the person arrested was a diplomat but the name given by the media was not correct. Following this, the media soon changed the name to Raymond Davis (hopefully getting it correct this time?).
The name Raymond Davis reported to have been given to the alleged perpetrator of the crime AFTER the crime brings up even more suspicions when upon seeing that this is quite a common name.

Latest News:

US Cuts Ties here A big question is the degree of reaction by the US authorities and WHAT is perhaps being shoved under the rug? Isn't this a time more than most for diplomacy and a look at consensus on international LEGAL agreements?

Replies sought on pleas for Davis record here

Diplomat Davis Faces Forgery Charge here

UPI wires 7 February, 2011:

Two men allegedly shot by U.S. diplomat Raymond Davis were allegedly linked to the Pakistani intelligence agency, a security source disclosed. Davis, whom Washington described as a member of the "technical administrative staff" at the U.S. Embassy in Islamabad, was arrested last month on charges he shot two Pakistanis. He said the shootings were in self-defense. Washington and Islamabad are at odds over the status of his diplomatic immunity. Islamabad is reluctant to release the American, however,Read more here Why should US blame Pakistan officials if they are not caving in before the world - especially if there is good legal reason to support Davis' trial in Pakistan? What is the part the US plays in goodwill and law? See lawyer's excellent summary below.

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4 pm EST 7 February, 2011 Online News:

US insists release of Robert Davis; Pakistan adamant on legal course

ISLAMABAD: Warning that delays in unconditional release of Robert Davis could adversely affect bilateral ties, US on Monday once again insisted upon earliest possible release of the American involved in killing of two people in Lahore.

According to sources, the intimation to this effect was made during the meeting between US ambassador to Pakistan Cameron Munter and President Asif Ali Zardari. The President, however, made it clear on the US ambassador that the matter was subjudice before a court of law and the verdict of the court must be awaited.

The President reiterated during the meeting that Pakistan values its relations with US and desires durable bilateral relations. However under the present circumstances the immediate release of the US national in question was not possible before the relevant court disposes off the case.

Spokesperson to the President Farhatullah Babar briefing the media about the meeting said that the two discussed Pak-US bilateral relations.

Cameron Munter, who had arrived from Washington after discussing the Raymond Davis issue with his govt, gave a message from his government to the President regarding the immediate release of Robert Davis, he added. He said that the matter of Raymond Davis lies with the Punjab govt and the federal govt is in constant touch with the Punjab govt on the issue.

Earlier, UK High Commissioner Mr. Adam Thomson also called on the President and discussed bilateral relations.

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In preparation for articles on this case (mine and perhaps others) - I am collecting and posting NOTES below. The points are a condensation of various trusted sources (some are named and some will most likely be named soon upon permission.)

The following is almost verbatim (slight editing and a few omissions. This case is much more crucial than appears to meet the eyes of American reporters. Here is a summary of a legal background for both Pakistan and the US which certainly figures in this case.

Connie

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From a well-informed lawyer: Salahuddin Ahmed

Pakistan is a signatory to the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The substance of both Conventions are part of Pakistani law through the Diplomatic & Consular Privileges Act 1972.

Under the Vienna Convention on Diplomatic Relations, a diplomatic agent cannot be arrested or detained. Period. No exceptions. The same for members of the technical and administrative staff of a diplomatic mission.

Many other countries in the world have adopted this convention and usually hold to the same. Whether an ethical consideration or no, such a convention is also to protect the lives and property of each nation's own diplomats.

Thus, if Pakistan was to prosecute a U.S. diplomat rightly accused of murder in Islamabad - what would stop the U.S. from bringing trumped-up terrorism charges against a Pakistani diplomat in Washington? The whole diplomatic system would be jeopardized.

Perhaps, the closest a country has been to ignoring the Convention was when someone fired a machine-gun from the Libyan embassy in London upon a crowd of protesters outside and killed an unarmed British police-woman as a result. The UK police laid siege to the embassy for more than a week (in itself a violation of the Convention). The British police were not allowed to enter the embassy and/or to waive diplomatic immunity for the Libyan embassy staff. The Libyan police were ordered to besiege the British Embassy in Tripoli. Eventually, the UK broke off diplomatic relations with Libya but the embassy staff was nevertheless allowed to return to Libya unhindered.

Pakistan could thus become an international pariah with such willfully violating of this Convention as to confer immunity upon such diplomats. A first step might be that all NATO countries (and other countries under US influence) would then withdraw their diplomatic missions from Pakistan citing 'risks to personnel'.

However, consular staff (as opposed to diplomatic staff) enjoy only a limited immunity under the second Vienna Convention. The second Convention does not protect them against 'grave crimes'.

The US originally termed the man known as "Raymond Davis" as a staff member of the Lahore consulate. That was insufficient to save him from a murder charge - given the limited immunity conferred by the second Convention. Therefore, "Raymond Davis" was subsequently termed a staff member of the US Embassy in Islamabad assigned to the Lahore consulate. This would bring him under the protection of the first Convention.

Who will decide what was his actual/official US capacity?

The courts?

If Davis raises a plea of diplomatic immunity, the court should ask the Federal Government to verify his status. Section 4 of the Diplomatic & Consular Privileges Act 1972 states that 'if any question arises whether or not any person is entitled to any privilege or immunity under this Act... a Certificate of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact'.

In other words, the courts have to accept the government's finding. The reason for maintaining the government's primacy in the matter is that the delicate matter of maintaining diplomatic and foreign relations is not considered to be within the competency of the courts alone.

Under Article 10 read with Article 39 of the first Convention, the Ministry of Foreign Affairs has to be notified of the appointment of persons to a diplomatic or consular post and about their entry into the host country. Such immunity and privileges are expected to start from entry for eligible persons by the host country for the purpose of taking up their post. (Or - if such officials were/are already in the host country at the time of their appointment - this immunity was/is to begin from the time such an appointment is notified to the Foreign Ministry of the host.

The holding of a diplomatic passport alone means nothing.

There is therefore only one question that is to be answered. On the date when Raymond Davis killed the two men in Lahore, was his status as a diplomat duly notified to the Ministry of Foreign Affairs? If not, the Pakistani government would be completely within its rights under the Conventions to deny him immunity.

The fact that the Foreign Ministry has refused to comment tends to indicate that his appointment was not notified. Otherwise, the government could have easily used the dictates of law as an excuse to hand him over. It is clear that the only compulsions currently operating upon the government are political (both American and perhaps other parties) and not legal.

However, the government cannot bury its head in the sand for much longer nor can it pass the buck on to the courts (who are obliged to accept the government's certificate in the matter).

The other issue that bears greater scrutiny (than appears to have been given thus far) is the profile of the 3rd man who was killed by the SUV coming, evidently, to save Davis. Was it driven by a consul official?

As pointed out above, consul officials are not immune from arrest for grave crimes. Manslaughter is a grave crime. In any event, the consul is not immune from civil suits in relation to road traffic accidents. Why are there so few reports about the background of the third man? What are possible options under consideration in his case?

Last, since the question of 'green cards and dollars' came up, shouldn't the wishes of the deceased closest family members be considered? While they may indeed want to see Davis punished ... they may instead be of the view that nothing will bring back the dead. Should that decision not be theirs without influence by other perceptions of 'honour' and 'national pride'?