By Ejaz Haider
The Raymond Davis case, or shall we say the Who-is-Davis case, is getting murkier. Rehman Malik has told the Senate that Davis is an accredited diplomat and he has Davis’ entire file which shall be produced in the court. Right! Davis is a diplomat except his name is not Raymond Davis! So, what kind of file does Malik have on the guy who shot two boys, even if in self-defence, and whose name is not Davis but who is a diplomat?
ABC News, reporting on January 28, said Davis’ record shows “experience in the US Special Forces” and also mentioned that “Davis runs Hyperion Protective Consultants, LLC, a company that provides ‘loss and risk management professionals’.” The same story says that “Pakistani officials named Davis as the accused American to ABC News, in reports and in court documents Thursday, but State Department spokesman P J Crowley said the name had been misreported”.
Did Crowley go on to tell ABC News and the rest of the press who the guy is? No, he didn’t. Here’s the exact quote: “I can confirm that an employee at the US consulate in Lahore was involved in an incident today…It is under investigation. We have not released the identity of our employee at this point.”
[NB: Crowley said “employee at the US consulate” in Lahore, a very important fact which we shall park for a while but return to shortly.]
If Crowley didn’t release the name of “our employee”, how does ABC News know the man’s record shows experience in the US Special Forces or that he runs Hyperion Protective Consultants? And if this information, as put out by ABC News, is correct then they know who the man is but have chosen to withhold his identity, no prizes for guessing at whose behest.
The man has not been ID-ed by the US consulate in Lahore or the US embassy in Islamabad. Would Malik tell us what Davis’ name is since he is not Davis but Malik now has his full file? But let’s even leave this. Why did it take the government nearly a week since the shooting to determine that Davis is a diplomat considering that this could be done in less than an hour? The Ministry of Foreign Affairs maintains regularly updated lists of diplomats and this list is a published document. Is Malik’s statement an ex post facto attempt to grant the man diplomatic status for reasons that need no explanation?
This is the point at which we return to Crowley’s statement to the press – “I can confirm that an employee at the U.S. consulate in Lahore…” This has now been changed to this man being an employee of the US embassy. Why?
Because, and this is important, there are two different Vienna Conventions, one on diplomatic relations (1961) and the other on consular relations (1963). The consular staff, including the consul general, enjoy a lesser degree of immunity than the embassy staff identified as accredited diplomats. Article 41 to 43 of the convention and the sub-clauses make clear rules binding on the receiving (host) state and clauses 1 and 2 of Article 41 captioned Personal inviolability of consular officers read:
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. (Emphasis added)
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.
Given this, the story is now being twisted to prove that Davis is in fact a US embassy employee and a diplomat rather than just a “technical advisor” at the US consulate in Lahore. But there’s more.
The procedure for diplomats is simple. When a sending state posts a diplomat to a receiving state, the diplomat applies for a visa to the embassy of the receiving state. His application clearly states his status, the position he is going to occupy and the nature of his work. After he arrives in the receiving state, the embassy is supposed to send a letter to the Foreign Ministry of the receiving state requesting that he be issued a diplomatic card. This card is his accreditation for local authorities. The person’s name is also listed by the ministry which publishes lists of accredited diplomats.
But even the Vienna Convention on Diplomatic Relations (1961) makes clear in Article 31-1(c) that “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: An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.” (Emphasis added)
Here, there is stronger immunity, but not a blanket one.
Questions abound: why is Davis now being presented as a US embassy employee rather than a US consulate employee? What kind of visa(s) did he apply for at the Pakistan embassy in Washington; who cleared him and on what basis? When did Davis apply to the FO for a diplomatic card through the US embassy when he reached here? What is the nature of his official functions given that he travels back and forth with a high degree of frequency? Why did he have on his person maps, sophisticated electronic equipment and an illegal semi-automatic pistol? Was he performing official functions? If yes, what kind of function would take him to Jail Road; if not, then both under the convention on consular relations as well as diplomatic relations, he cannot be let off until all the facts have been determined.
Right now, nothing is clear, not even his name. As I have written elsewhere, what is required is transparency both by the sending and receiving states. That has not happened so far. In fact, in all the hullabaloo about the shootings, the third person, the biker crushed to death by the backup vehicle, has been forgotten. The US consulate has still not surrendered the vehicle and its occupants.
Determining the facts is important also because, finally, Article 31 (4) makes clear that “The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State”, which means that if this man is found guilty of using excessive force, he could also be tried in the United States.
The writer is Contributing Editor, The Friday Times.