Ascertaining Raymond Davis’s identity

By Rana Sajjad Ahmad  

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.

(The writer is a partner at Rana Ijaz & Partners, a Lahore-based law firm, and a graduate of Columbia University School of Law).

NOTE:This is a cross post.

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Comments

  • Bashir Syed  On January 30, 2011 at 2:51 am

    This incident reminded me of a British Officer during the second World War stationed at Campebellpur Cantonment in Pakistan (now renamed Attock City) driving a jeep, (when I was about 10 years old) and he killed a woman crossing the road, right in front of my eyes. He got out of his jeep and covered the body with white sheet of cloth and drove off, without any regard of Law and Order, and Local Community.
    In my opinion, when Americans picked up Muslims (who never fired a single shot at them ) from Afghanistan and Pakistan by paying millions of Dollars to Musharraf (which he has clearly admitted in his book “IN THE LINE OF FIRE”), and the whereabouts of some of whom have not been found till this day, without any regard of International Law, thus Pakistanis have every right to try this BlackWater (a contracting organization to provide contracted merceneries) employee according to the law of the land. His last name indicates that he might even be an Israeli or holder of Dual citizen-ship. Black Water employs people from all countries, who call themselves “Soldiers of Fortune,” and work as merceneries to kill without any regard of International Law, and whose exploits are boasted in a magazine by the same name, (just check out at http://www.sofmag.com). It’s high time that United Nations took some action to impose International Law & Geneva Convention for the treatment of POW’s, against the Law of the Jungle under which these “guns for hire” operate killing people around the world, without any impunity.

  • Salman Abbasy  On January 30, 2011 at 3:23 am

    Only recently American security agents conducted intrusive body patdowns of the Indian Ambassador and the Pakistani consul general, both females, even after they declared their diplomatic status. Previously, the New York police barged into the Pakistani ambassador’s official residence to arrest him after an American woman accused him of physical violence. If the US authorities can be liberal in their interpretation of the diplomatic conventions, we need not be so literal. The problem is that Pakistan’s intelligentsia has been unable in more than 63 years to shed the inferiority complex instilled by the British colonial masters.

    • S U Turkman  On January 30, 2011 at 3:31 am

      The incidents you are talking about never took place in USA but you have to lie since its part of your Islam to lie.
      Pat Down search of Males by Males and Females by Females is a norm in USA and it has nothing to do with Diplomatic Immunity. Even Senators and Congressmen have to go through it but you had to give the picture you wanted to give because of your hate of USA. Why do you live in USA if you hate it so much, Liar?

  • S U Turkman  On January 30, 2011 at 3:27 am

    So despite that US Ambassador to Pakistan has confirmed that killer of 2 Armed Robbers is his Employee, we are declaring he is not because we believe our Lies can change facts?
    The Writer are bias because none of them think, they fired at that American and he fired back in Self Defense according to Witnesses since they hate Americans.
    One man on Internet is even asking how come those Innocent Pakistanis was shot from back, when they were not and wounds are also on their backs because Bullets went through their bodies.
    One wrote, US States Department says this is not his correct name, when US States Department did not do that.
    Police arrested him and the magistrate even sent him under 6 Day Police remand despite knowing he had Diplomatic Immu8nity. Is this all a part of our Islam?
    I think, not only all Police Officers involved in this case but also the Magistrate should be dismissed from their Jobs for their incompetence, while Allah takes care of all of us lying and cheating.
    Even TV Channels did not show the Witnesses telling the facts. Only 2 Stations produced one Witness and then stopped showing even that Witness. What a country …!
    What a characterless citizens …!

    • pakpotpourri2  On January 30, 2011 at 4:21 am

      Turk,an
      In future you will refrain from abusing failing which I will ban you from posting comments here.I have an intense dislike for rudeness.
      Moderator

  • Mumtaz Piracha  On January 30, 2011 at 7:28 am

    I am skeptical about the real identity and real status of the American because of the conflicting statements from the US Embassy in Islamabad itself.

    • Tariq Saeedi  On February 2, 2011 at 5:53 am

      This S U Turkman chap is the son of late Chiragh Hassan Hasrat, one of the greatest journalists of Pakistan and the first editor of Imroze. The last I know of him (about seven years or more ago) he was driving a taxi in Chicago. He failed in verything in life and takes out his frustration on Islam and Pakistan. He is a blot on the great name of Hasrat saheb. Because of his obnoxious behaviour he has been kicked out of upmteen number of forums.

  • Syed Ataur Rahman  On January 30, 2011 at 7:45 am

    Come on Pakistanis show some guts and do not shrink and fear or worse be bought off by the Americans. Many in Pakistan have sold their souls to the Americans. Mr Sajjad who wrote this article and many other Pakistanis with US degrees turn out to be the biggest lackeys of the Americans. Several from the journalist communities have been bought off. These hordes must have been told by the Americans to start a campaign to protect the Blackwater agent and speak on the issue of diplomatic immunity. This will force the weak Pakistani government to give in and so allow this Blackwater US/Israeli agent to be freed and sent back to his country.
    Firstly, this agent Davies or whatever his name is not a diplomat; the Americans declared him so as an after thought to save his skin. Secondly, the circumstances governing this suspicious shooting resulting in the murder of the Pakistanis must be fully explored. There is more to it than meets the eye and the Blackwater agent might have eliminated them cruelly to squash something that he did not want revealed. Thirdly, even diplomats do not have immunity from murder. I am surprised Mr Sajjad did not do sufficient research to unearth where the diplomats do not enjoy immunity.
    As far as this article is concerned, he started off well; later he seemed to be protecting the American interest and so my suspicion of his loyalty and his ability to speak honestly. The Americans will in all likelihood unleash many more of their paid agents to dis-inform the people and give them incorrect picture. So readers beware.
    For once we as a nation must put sufficient pressure on this weak government not to accede to American pressure. We must protect our rights. While the Americans pick up whom they want and some of them have disappeared, so why can’t we, at least once stand up and show we are not shameless as the Americans accuse us to be.
    I ask again who is this man Turkman? He is certainly not giving his real name. He appears to be an Indian agent and we all should be aware of his role. Also, he is vulgar and derogatory. Let him show his tantrums, but we Pakistanis should be aware of this RAW agent.

  • Tanvir Ahmed Siddiqui  On January 30, 2011 at 9:38 am

    @Moderator Pakpotpourri2: Enough is enough for This a man / women or something in between named TURKMAN. Almost every time i hv read Turkman’s posts eevry word and every line reflects his personal hate for Islam and Pakistan in totality. Taking the advantage of freedom of expression he gets too far out of proportion.His slurs and abuses must be checked..Only measure for such crazy elemnet is Blocakde..We do not want to rebuttle his so abusive language in same manner.He otherwise can be sorted out appropriatly..

  • Mian Saleem  On January 30, 2011 at 10:10 am

    ONE CAN COME UP WITH AS MANY ARGUMENTS AS POSSIBLE, THE FACT IS THE SLAVE NATION THAT WANTS TO REMAIN SLAVE WILL FACE SUCH CONSEQUENCES. NONE OF THE POLITICIAN HAS COME OUT FOR LONG MARCH WHEN ITS OWN CITIZENS ARE KILLED BY THE OUTSIDERS. IT IS IRONY THAT HEAD OF THE POLICE COMING OVER THE TV AND SAYING THE VICTIMS WERE ROBBERS, JUST TO PROTECT HIS MASTERS. THESE POLICE OFFICERS ARE WILLING TO IMPLICATE THEIR OWN COUNTRYMEN PERHAPS AT THE BEHEST OF HIS SENIORS.
    GOD HELP PAKISTANIS

  • AM  On January 31, 2011 at 1:11 am

    This kind of ammunity is rather a surprise o me where iplomat is allowed a free hand even in henious crimes and then be let of as a part of diplomatic ammunity? One would go through gang rapes gang murders and then be let off – what a travestry of the immunity!?
    or can abny one claim such an ammunity if he was an active participant of a terrorist cell? or if a government wants to hve some one murdered say a political opponent – easy. Have an assaisan posted as a staff and murder the opponent and come out clean.

    In think that there must b a cut off point and in henious crimes this may not b possible This is important and I reuest concerned to advise the nation on legal points

  • Tanvir Ahmed Siddiqui  On January 31, 2011 at 5:59 am

    Almost all local and international reports are in conformance that this Man is no ordinary but a professional snipper and was armed with an special extra-ordinary weapon. He was set free to roam and stroll around in down town streets and roads of our cities and towns not for excretions or shopping but under some covert missions. It is now almost confirmed to the possibilities that such elements are major source and resource of all mayhems not only in Lahore but our other cities as well.

  • Masud ul Hasan  On February 2, 2011 at 12:05 pm

    Please note the following provision of Vienna Convention and comment:

    Masud

    ===============================================================

    Article 37

    The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36. 2. 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.

    Did Raymond Davis kill the two persons in performance of his diplomatic duties

    Article 39

    Every person entitled to privileges and immunities shall enjoy them from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.

    Was our Foreign Ministry notified about his appointment? If yes, under which name?

  • Writers Wanted  On February 5, 2011 at 10:01 pm

    Your site is looking awesome. You have some writing talent. I make $10-$50 each blog post I write. It is an awesome way to make extra cash in the current economy. The business I work for has quite a few openings if you enjoy writing as much as me.

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Trackbacks

  • By World Spinner on January 30, 2011 at 3:22 am

    Ascertaining Raymond Davis's identity « Pakpotpourri2's Blog…

    Here at World Spinner we are debating the same thing……

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