Original Articles

Clarity in the Raymond Davis Incident – by Rusty Walker

On the face of it, the Raymond Allen Davis incident would appear to be a simple homicide investigation of a double murder, or double shooting, by an American clandestine operative in Pakistan. There would be additional investigation into two related deaths.

In such a case, it would seem likely that the alleged crime is investigated in the locale in which the incident took place, Lahore, and the perpetrator, if guilty is brought to justice locally or if innocent, is set free. But, few things are simple in trans-national politics, especially when they involve the world’s foremost Super Power and occur in one of the most important countries in the world for the U.S. in its war against terrorism in Afghanistan, namely Pakistan.

Politically, this incident is being used by the establishment  and its proxies to settle scores with the US and seriously damage the PPP government.  The establishment has already claimed the Foreign minister Shah Mehmood  Qureishi,  who has started reading from the typical Anti-American establishment playbook!
 
The official claim from the United States is that one of its “diplomats,” Raymond Davis, was threatened by two men with guns, attempted robbery ensued, and subsequently, he shot and killed them in self-defence. The U.S. further claims he was arrested and “illegally detained,” due to internationally agreed policies of “diplomatic immunity.” According to U.S. officials, Davis came to Pakistan on a “diplomatic passport” and is a “member of the technical and administrative staff” of the embassy in Islamabad. U.S. officials do not believe reports that the two men Davis shot and killed were working for the ISI. There are allegations that the men had robbed another person before they approached Davis’ car, however, the Pakistan government continues to investigate these claims, including any consideration of diplomatic status.
 
All histrionics aside, the diplomatic process seems to be following the typical manoeuvres expected of two nations with their own self-interests at stake.  However, standing by to inflate passions is the commercial press in Pakistan that will never let a crisis go to waste without pushing a rabid anti-American agenda. The media coverage can either report such incidents responsibly, waiting for facts to be corroborated, or, act irresponsibly by leaking unsubstantiated rumours in an effort to incite public opinion and create an atmosphere of chaos and contention. The established press appears so far to take the latter tactic by sensationalizing scenarios with wild speculation in an effort to further stir up anti-American sentiment which is neither good for the U.S., nor good for its ally, Pakistan.
 
For example, uncorroborated stories in the press have claimed Davis shot the victims in the back multiple times, and other stories refer to the victims on motorcycles as “boys.” It is doubtful they were boys in the sense of adolescents, and perhaps this is another attempt to cloud the issue, as there are assumptions made on both sides in advance of clear facts. Of the third person killed, run over by an official-looking car allegedly coming to Davis’ rescue, some accounts with no sources given, claim that the U.S. Embassy is harbouring this car and its occupants. However, all these details are mixed with heated speculation at this point. Further complicating the situation is the fact that, Shumaila, the widow of Faheem Shamshad, one of the victims, committed suicide. She had apparently been convinced by premature, inflated rumours that the shooter might be released by the Punjab police. She died dramatically proclaiming “blood for blood.” How someone could have been brought to suicide so quickly is alarming in itself. Could it be related to misleading and biased press reports? The right wing media subsequently portrayed Shumaila’s suicide as having “saved herself from agony.” All these questionable reports tend to play on the emotions of citizens, rather than appealing to reason.
 
Swirling conspiracy theories and speculation in the press fill the void where investigative facts are absent. Another example includes assumptions that the victims might be ISI agents, possibly carrying ineffective pistols, only one of which was loaded, while Davis responded with a “good shoot” (in CIA language), with a more professional Glock. These accounts have added to public questions and misconceptions. Whether the shooting was justified or not, Davis is now in the middle of two nations in the process of off the record communications.
 
Islamist Politicians are publicly characterizing this as two nations squaring off, and determined not to lose face. This political-speak is not accurate, and only tends to divide the populace while encouraging us to take sides. In addition, the Punjab Provincial government lead by a strident PML N and its judicial allies are using this dramatic event to place the PPP lead government in an unmanageable corner. In this circus atmosphere, the Tehrik-i-Taliban Pakistan (TTP) weighed in, absurdly demanding that the Pakistan government execute Davis or turn him over to the TTP. More of these opportunists will no doubt try to increase tensions against the PPP lead government and inflame passions against the U.S., instead of more responsible efforts towards clarity and facts. The initial press reports seemed to be less inflammatory and held a consensus for self-defence (although, this is still under investigative determination). The Pakistani Spectator, February 17, 2011, for example published the following,  “Raymond Davis and Role of our Media” by Majid Maqsood which cites:
 
“I have been reading all reports that appeared in different Newspapers and watching almost all discussion on our channels just after the shot dead two people by Raymond Davis in Lahore. On very first moments Geo TV showed eye witness who were saying: There were two persons and both having pistols chased the Gora (English Man) and they wanted to stop and rob him but Gora did not waste a second and he fired at people in front of his car and when both felt down, he came out and took their pictures and tried so hard to flee but he could not out from congested area”
 
Many eye witnesses were shown on different channels but that footage was not repeated at all. It is also reported by Media that these robbers also snatched Mobil and  goods from other people, which has been recovered from Hospital but mostly writers calling them innocent people like Raymond Davis was such extremist like many here in Pakistan killing innocent people who had nothing to do with National policy and politics.”
 
Who Raymond Allen Davis is personally and officially will be a factor in determining his international fate. Davis is a thirty-six year old, former Special Forces soldier from Virginia, fluent in Pushto and Urdu, who identified himself as a “Department of Defense contractor.” He is co-owner of Hyperion Protective Services. In Davis’ association with either, CIA or security contractor services, he is naturally placed in the cloak and dagger realm, feared not only by civil society, but the security establishment and terrorist organizations alike. The Pakistan establishment has targeted security contractor companies like DynCorp and its Pakistani affiliate InterRisk and Xe, formerly Blackwater. So, there has been controversy over American security contractors in Pakistan over recent years. But, these are details that will emerge during full investigation, and can still be considered irrelevant when dealing with the heady issues of claims of diplomatic immunity by nations that tend to gloss over details. The U.S. began with a strong statement threatening a discontinuance of foreign aid, but, then followed with a more conciliatory gesture on February 15, by sending U.S. Senator John Kerry to Islamabad in an apologetic plea. Senator Kerry expressed sorrow for the deaths, while still requesting Davis’ release and the assurance that a “criminal investigation” would take place if he were released into U.S. custody. Although President Obama has also cited “diplomatic immunity,” the Pakistani government understandably has avoided a firm stance on Davis’ legal status. So, both sides have determined that Davis will not go Scott-free in any case scenario without a full investigation into justice. 
 
Nations have agreements to deal with such incidents that take place in other countries. In this case, the Vienna Convention on Diplomatic Relations in 1961 established the guidelines for “diplomatic immunity.” As for determining whether Davis is in fact a diplomat, the US Embassy gives us the following Islamabad press release on January 28, 2011 about Raymond Davis, “A staff member of the US Consulate General in Lahore…involved in an incident yesterday that regrettably resulted in the loss of life. The US Embassy is working with Pakistani authorities to determine the facts and work toward a resolution.”

(Source: US Embassy’s website  http://islamabad.usembassy.gov/pr-11012801.html).
 
A later release confuses the issue with another US Embassy press release on January 29 declaring Davis as a “US Embassy Islamabad employee.” Nevertheless, this establishes Davis’ status as a diplomat, but not necessarily immunity.
 
The formal issue may come down to: what is the current law for legal immunity? Legal immunity is the international law agreed to between governments through treaties. The International Law for diplomatic immunity is called 1961 Vienna Convention on Diplomatic Relations, but, later the Vienna Convention on Consular Relations was written in 1963, and adopted by Pakistan through the 1972 Diplomatic and Consular Privileges Act. If you read the later 1963 Act, you find that the word “consular post” is defined as “consulate general, consulate, vice consulate or consular agency, and consular officer” or any person, entrusted in that capacity of consular functions. So, according to the later law, he is not a “diplomat” as defined in the Vienna Convention of 1961, but rather a “consular officer” as defined in the Vienna Convention of 1963. [Article 41 (1) reads as follows: “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.”].
 
Thus, it follows that if Raymond Davis is, as stated, a member of the (Lahore or Islamabad) US Consulate and kills two Pakistani citizens, and a third dies in an alleged attempt to rescue him, it seems to also follow that a local investigation would need to be conducted in order to determine whether it was a “crime,” or self-defense. Then, if it is determined by the local investigation and evidence that a crime was committed, he is subject by the 1963 Act to a court of law in that jurisdiction by a “competent juridical authority,” under the clause: “grave crime.” Under this law it would appear that Raymond Davis has no diplomatic or consular immunity due to its “grave nature,” and the possibility of a determined “crime.”
Further investigation into rights of immunity should also come into play: Davis was traveling on a “black” diplomatic U.S. passport, issued to American diplomats. But, being eligible for a diplomatic passport does not necessarily afford the holder of the passport full diplomatic immunity. Full diplomatic immunity requires accreditation as a diplomatic agent by the receiving country and appears on a list of diplomats in the embassy. Reports from some sources are that Davis appears to have been added to this list after the incident. Foreign employees at an embassy or a consulate not on a diplomatic list are only protected by functional immunity. This means they are only protected from prosecution related to their “official duties.”
 
So, even if Davis was a contract employee assigned to the U.S. Consulate in Lahore, Davis would not have full diplomatic immunity, and further, if he was involved in a shooting not associated with official duties, he would not be immune from local legal process or prosecution.
 
It might very well be, that these are the issues that are under advisement between the two countries official and unofficial discussions- not to mention seemingly unrelated issues of the future of foreign aid and U.S. funding of Pakistan military and civilian projects, the usefulness of Pakistan in the on-going Afghanistan conflict, questions over safe-haven of terrorists in North Waziristan, questionable security establishment loyalties, and the future relations of both nations. Such international incidents as this take on immense importance in terms of global image, but also mutual goals.
 
Whether we like it or not, the fact is that United States and Pakistan, like all countries involved in the war on terrorism, are deeply involved in intrigue to some extent, including spy activity and it is always a national embarrassment when dark forces come to light. Nations expect such developments and the extremists among us always use such incidents to further their radical agendas. Diplomatic immunity is very helpful in getting the lengthy investigations and courtroom drama out of the foreign country, and back into its homeland. There are numerous historic battles between nations, including Pakistan, (See: http://cafepyala.blogspot.com/2011/02/brief-history-of-diplomatic-immunity.html) over diplomatic immunity issues that I will not go into because in reality it has no bearing on any new incident. It never does. While the two nations remain clearly at odds over the right to lawful custody versus “Diplomatic Immunity,” at this point, it is irrelevant as to whether Raymond Davis is a CIA spy or whether the ISI was involved or were simply thieves attacking him.
 
Throughout history the details of “Diplomatic Immunity” between nations are rarely followed by the letter of the law, and always complicated and usually controversial. Most experts in Pakistan’s legal and foreign offices tend towards giving Davis immunity from prosecution, although this is a matter still under dispute for the reasons I stated above, and is left to legal interpretation. All this remains to be seen, and should not be interpreted as good vs. evil, or the strength of one country over another as some elements of the commercial press would have us believe.
 
In the end, Pakistanis must realize that Americans, whether on the Left or on the Right, respect the rule of law.  If Raymond Davis is subject to legal prosecution and is not protected by immunity, so be it. What should not happen is Pro Taliban parties like the PML N, PML Q and PTI using this incident to inflame passions and create a lynch mob! Similarly, Pakistan’s judiciary has lost a lot of credibility since the heady days of 2007.  They should stick to the letter and spirit of the law and ensure that both the investigations and trial of Raymond Davis are fair and free from the influence of powerful rogue elements within the establishment.  Anything less would be a grave injustice to all parties concerned.

 

Rusty Walker is an educator, author, political commentator, ex-military, from a military family, retired college professor, former Provost (Collins College, U.S.A.), artist, musician and family man. Rusty Walker is an ardent supporter of Pakistan.

About the author

Nighat

15 Comments

Click here to post a comment
  • On the issue of immunity, Raymond Davis, does not stand a chance, specially so when it has been confirmed that he is a contract employee which does not cover the blanket immunity as per Vienna Convention. USA must understand that feelings among common people on this incident is very tender and against Davis, so it is not wise to pressurize the government to give immunity previlege as a special case. Because of him, four persons lost their lives and the case has already been filed in the court. It is no Musharraf days.

    However, Davis has a strong case of self defence, if in the mashirnama (personal belongings at the crime scene) the possession of pistols with slain persons have been recorded.

    Whether the two murdereds were ISI men it will never come up during the trial, so this skeptic aspect should be forgotten once for all. Period. But, later developments in the case would perhaps give some pointation.

  • Right, Khalid. You appear to echo my main thesis which is to not fall for press hype obfuscation, or the default of opportunists that will attach every questionable thing the U.S. has ever done to this unique incident.

    As the process unfolds between two nations, there will be a public persona and behind-closed doors persona- a very different and respectful series of private talks are in negotiation that we do not see in the public forum.

    In the end, it should always come down to the rule of law- a fair trial- free of agendas, regardless of the country wherein justice takes place. If it happens in Pakistan, a fair trial that affords a transparent defense and prosecution, witnesses, and honest justice it could well serve to elevate the current establishment’s much-needed judicial credibility.

  • The issue boils down to finding out what really happened and to stop conducting a media trial of sort where some “facts” are exposed and then suppressed as if the media (due to commercial interests) has undergone a severe attack of amnesia.

    Unless Raymond Davis was a mad man on drugs, fact remains that something must have happened! Considering the crime situation in Pakistan he could have felt threatened and fired in self defence. Over reaction? Perhaps! Why make sure the two attackers are dead? Your guess is good as mine!! Therefore it is better to wait for court proceedings to emerge so come to know what really happened. If ISI is selecting petty thieves and criminals as informers, then boy! They must be pretty hard up!!

  • Thanks Walker for rejoinder. Whatever you have said any sane person would think the same way. We want and the whole world expects justice be done on the factual grounds. But I am afraid, Raymond Davis has applied for in-camera proceedings, which according to your reasoning, would not satisfy the world no matter it was decided on merits. Justice must not only be heard but also be seen.

  • Rusty is, as usual, objective, thorough and dispassionate when discussing international relations. My take-out of his article is the last para, which in letter as well as in spirit is also the bottom line.

    “In the end, Pakistanis must realize that Americans, whether on the Left or on the Right, respect the rule of law. If Raymond Davis is subject to legal prosecution and is not protected by immunity, so be it. What should not happen is Pro Taliban parties like the PML N, PML Q and PTI using this incident to inflame passions and create a lynch mob! Similarly, Pakistan’s judiciary has lost a lot of credibility since the heady days of 2007. They should stick to the letter and spirit of the law and ensure that both the investigations and trial of Raymond Davis are fair and free from the influence of powerful rogue elements within the establishment. Anything less would be a grave injustice to all parties concerned.”

  • Yes, Shoaib, the last paragraph, as a summation, contains the core of the thesis I am setting forth, and I agree that it is a good way to grasp the entirety of the message.

  • This article is a muke attempt to save the criminal by citing only one sided story, not even mentioning the crimes of the people who killed the 3rd Pakistan and the emabssy’s role of hidding the killers and shipping them out. Now that the whole story of Davis being a spy and CIA agent being confirmed, this article seems a last fantasy to try to lessen the crimes. Sorry to say, that embassy staff lied about the spy, so did kerry and so did obama. We do not need criminals hiding as diplomats, supporting TTP bandits, inciting drone attacks etc. as we are learning more and more about the criminality of this man and many more Davis out there in the streets. We need the country to be free of agents, subversive acitivites sponsered by the embassy and better that the embassy packs its bags with its agents and aid and go back to where they came from. We do not need terrorism in our country.

  • Salman said:”This article is a muke attempt to save the criminal by citing only one sided story”
    A rather cynical response, for no apparent reason except that you just don’t trust me because I am an American. My essay was published several days before the Guardian story, facts were not established yet. In fact, my story doesn’t attempt to tell Davis’ side at all. Reading my article closer you might notice I brought up Davis’ involvement with the CIA before the Guardian supposedly “scooped it.” If I was biased, I would never have mentioned it. My main concerns were less about Davis, and more about calming down incendiary commentary and irresponsible reporting before facts were allowed to emerge from Pakistani investigation. You’ll also discover if you read it closely that I gave reasons why Davis might very well not have immunity.

    My hope would be that you and others would have the decency to judge people and their stories on the merit of their content not predetermined beliefs about someone who happens to be American. Pakistan has friends here in the states as well.