Losing Battle of Hearts & Minds

Imagine the following account: A Pakistani man shoots dead two Americans on a busy strip using an unlicensed weapon, and then another Pakistani colleague radioed by the shooter runs over a third American. Then all three try to feel the scene but are overpowered by the police and turned in. The Pakistani man is found to have entered America on a business visa, claims to police that he was a “consultant” to the Pakistani Consulate, but the Pakistani government swiftly changes documentation at the Embassy to include him as an employee, to provide him legal immunity.

The Pakistani government then brings great pressure on America to “follow the Vienna Conventions” and to release the man, including statements from the Prime Minister & President.

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Scene from la-la land? Precisely. It’s hard to imagine that any citizen from any part of the world, let alone from Pakistan, could wreak havoc on a shopping strip in America and get away without consequence.

Such is the hypocrisy of American pressure on Pakistan (threats about  aid, by Obama & to Ambassador) to release the now notorious, Raymond Allen Davis, the businessman-turned-consultant-turned-consular staffer-turned-embassy staffer. The American government wants Pakistan to comply with its own convenient interpretations of the Vienna Conventions for diplomatic immunity.

What Happened? For those unaware of the situation, it is exactly as described at the top, except with roles reversed. On Jan 27, 2011, Raymond Davis shot dead two Pakistanis on a motorcycle in broad daylight on a busy shopping strip. The egregious incident led to three direct deaths and one indirect one when the widow of one of the shooting victims committed suicide due to her sense of hopelessness in a just trial.

Instead of letting Pakistani courts evaluate the legal ramifications of the situation and the extension of Vienna Conventions to Raymond, the entire US government apparatus including President Obama is bearing great pressure on their feeble stooges in the Pakistani government to release Davis without any consequence for his killing spree. By prejudicing a legal case with political expediency, Mr. Obama is further damaging his reputation in the Muslim world, and pretty much hammering the final nail in the coffin of the great optimism in his Egypt address to the Muslim world.

Window into the Vienna Conventions As for the Vienna Conventions, the emphasis on the distinction between consular and embassy staff is not trivial. There is also little doubt that Davis was only placed in the Embassy rolls AFTER the incident.

Davis was not one of the embassy employees listed on January 25, 2010, two days before the incident However, a revised list submitted a day after the incident on Jan 28 carried his name.

So, there are two Conventions in play here. One is the Vienna Conventions on Diplomatic Relations (1961, adopted 1964) and the other being Vienna Conventions on Consular Relations (1963, adopted 1967).

Article 29 of the Vienna Conventions on Diplomatic Relations states that

the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.

The USA would like to see him being treated as a diplomat (linked to the Embassy), with extremely expansive and broad immunity, and not liable to any form of arrest.

On the other hand, consular staffers have much more limited immunity, as under Article 41 (1) of the Vienna Conventions on Consular Relations which states:

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

There is little doubt that the case is extremely grave and Davis would face a competent judicial authority as applied under this scenario, which is why it is understandable why records are being modified (sloppily) to apply Article 29 rather than Article 41.

Which Convention is appropriate? Let’s see what a couple of experts have been saying. In order to be treated as a diplomat, it is more than just being a staffer at the Embassy. Najmuddin Shaikh, a former Pakistan diplomat and Ambassador, concludes that David would have immunity under Article 29 “only if it was established that his presence in Mozang Chowrangi on that day was in ‘execution of his duties’ and that was something that had to be determined by a court of law.”

Similarly, former British Ambassador and Human Rights Activist Craig Murray concludes that the circumstances surrounding Davis do not allow for diplomatic immunity.

Central Intelligence Agency (CIA) Agent Twist Which Vienna Conventions might apply is likely to be only an academic exercise. More than two weeks ago, the Guardian reported that Raymond is in fact a CIA agent. Once that fact is realized, all the pieces of the puzzle fall nicely into place. There was a reason for the sudden rush to classify Raymond as a Consulate staffer, and then realizing the Vienna issue, there was another mad rush to classify Raymond as an Embassy staffer. All done to protect Raymond’s real identity as a CIA Agent, which of course makes the entire issue of diplomatic protection a moot point, as the Guardian hints:

Based on interviews in the US and Pakistan, the Guardian can confirm that the 36-year-old former special forces soldier is employed by the CIA. “It’s beyond a shadow of a doubt,” said a senior Pakistani intelligence official.

Also, from the same article, we find that unsurprisingly, the US stooges in the Pakistani government were fully aware of Raymond’s CIA status but were complying with “immense pressure” of USA directives to circumvent the entire justice system of Pakistan via the Vienna Conventions.

“Immense pressure” is probably being kind to Pakistani government. What is even more unfortunate is the acquiescence of the US media (such as NY Times) to yield to government requests and hide the information from the US public. By continuing to flout it as a case of Pakistan not complying with international conventions, Pakistan again became the whipping boy in the US media, with continuing negative implications for its public image.

A number of US media outlets learned about Davis’s CIA role but have kept it under wraps at the request of the Obama administration. A Colorado television station, 9NEWS, made a connection… [but] removed the CIA reference from its website at the request of the US government. [Guardian]

Aftermath

Writing for CounterPunch, the journalist Dave Lindorff has written

“in other words, the prosecutorial, police and judicial authorities in Lahore and the state of Punjab are doing exactly what they are supposed to do in holding Davis on murder charges, pending a judicial determination concerning whether or not he can properly claim diplomatic immunity. The US claim that Pakistan is violating the convention is simply nonsense.”

In a strange twist, the US government has also been actively seeking an Islamic shariah-based approach of offering blood-money (diya) to seek Davis’s release! This is especially ironic in light of the laughable and Islamophobic attempts by several states to ban “shariah law”.   Under the principles of Qisas, blood money would be an option, only if the relatives of those murdered accept to forgive the murderer, not FORCED to forgive. The ruling emanates from the Qur’anic verse [2.178] that is a clear evidence of Islam’s emphasis of mercy and life over punishment and death.

In conclusion, Davis needs to be tried by the Pakistani courts. If he escapes prosecution, then there would be no bigger travesty of justice, comparable only to the travesty of Dr. Aafia Siddiqui’s prosecution (persecution) and conviction.  I daresay Davis has a better chance of getting a fair trial in Pakistan than did Aafia in a New York court. While Aafia was sentenced to 86 years in prison for the ATTEMPTED murder of US interrogators in Afghanistan (in the complete absence of any forensic evidence), we have here an unarguable killer who America wants freed under the pretext of conventions it itself routinely flouts as Glenn Greenwald cites. From the same linked article, I’ll leave you with more food for thought from Greenwald, one of the few defenders of truth in the American media:

Those crazy, primitive Pakistanis and their inscrutable Muslim customs.  Scandals over diplomatic immunity are usually one-time, aberrational occurrences…  But what happened in Lahore is part of an ongoing, continuous assault by American forces in that region.  They [Pakistanis] (but not we) hear routinely about the killing of their innocent civilians by Americans in their country.  Why don’t we hear much about such things?  The Guardian article provides some insight: A number of US media outlets learned about Davis’s CIA role but have kept it under wraps at the request of the Obama administration.

That’s our intrepid, independent Watchdog press.  The cost of this conduct is so predictable — intense anti-American sentiment and the threats of Terrorism it produces — that a rational person would have to inquire whether that outcome is not a bug but a feature of our policy in that region.

In other words, American hypocrisy in its foreign affairs only leads to anti-Americanism, which ultimately feeds radicalism that will continue to haunt our nation.

Obama Calls Raymond Davis "Our man in Pakistan"

"With respect to Mr. Davis, our diplomat in Pakistan, we've got a very simple principle here that every country in the world that is party to the Vienna Convention on Diplomatic Relations has upheld in the past and should uphold in the future, and that is if our diplomats are in another country, then they are not subject to that country's local prosecution."
--President Obama, Feb. 15, 2011

Raymond Davis is a former Special Forces soldier who, according to the State Department, works for the U.S. embassy in Pakistan. Last month, he shot and killed two Pakistani men in Lahore under mysterious circumstances.

Davis has claimed the men were trying to rob him. The incident took place about eight miles from the U.S. consulate, and Davis was carrying loaded weapons and had a GPS satellite device in his possession. U.S. officials say the men pointed weapons at Davis and he thought his life was in danger. Police say Davis shot each victim five times, including in their backs, and lied to police about how he arrived at the scene.

In a video of his questioning released by Pakistani police, Davis identifies himself as an employee at the consulate in Lahore, saying, "I just work as a consultant there."

Another consulate vehicle, a Toyota Land Cruiser with tinted windows -- which, according to a police report, arrived after the incident in an apparent effort to rescue Davis -- struck and killed a motorcyclist in the aftermath of the shooting. The widow of one of the men killed by Davis then committed suicide.

Four dead people and an imprisoned American are a recipe for a diplomatic disaster. The United States has insisted that Davis, as an embassy employee, has diplomatic immunity and must be released. Sen. John F. Kerry (D-Mass.), a major backer of $3 billion in aid to Pakistan, flew to the country this week to press for Davis's release and predicted the case would be completed "in the next few days." But a Pakistani court on Thursday gave the Pakistani government three more weeks to determine whether Davis qualifies for diplomatic immunity.

President Obama raised the stakes in the dispute at his news conference this week, when he referred to Davis as "our diplomat in Pakistan." The president's phrasing went beyond the State Department's assertion that Davis was a member of the "administrative and technical staff" at the embassy.

Senior State Department officials have said that Davis was not supposed to carry a weapon in Pakistan, while other U.S. officials said that he was a security contractor and did have permission to carry the weapon.

Pakistani news reports have said Davis worked for the Central Intelligence Agency, but the United States has steadfastly declined to say anything beyond the fact that he works for the U.S. government.

Clearly the pin-striped set has evolved over the years, but many Pakistanis have alleged that Davis is a spy who must face justice for the killings. So does he have diplomatic immunity?

The Facts

The key document governing diplomatic immunity is, as the president stated, the 1961 Vienna Convention on Diplomatic Relations, specifically articles 29, 31, 37, and 39. The articles must be read together to get a full understanding of their meaning. Here are the key points:

A diplomatic agent "shall not be liable to any form of arrest or detention." (article 29)
"A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State," with certain exceptions involving property and commercial activity. (article 31)
"Members of the administrative and technical staff of the mission, together with members of their families" will have the same privileges and immunities in articles 29 and 31 as long as they are not nationals or permanent residents of the country. The one exception is that they are not immune from civil suits for acts performed outside the course of their official duties. (In other words, they can be sued if they run someone over when they are off on vacation.) (article 37)
"Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed." (article 39)

The U.S. embassy appears to have complicated matters by first sending a diplomatic note to the Pakistani Foreign Ministry on Jan. 27 describing Davis as "an employee of U.S. Consulate General Lahore and holder of a diplomatic passport." A second note, on Feb. 3, described him as "a member of the administrative and technical staff of the U.S. embassy."

The difference in the phrasing of Davis's employment has allowed Pakistani officials to argue that Davis is actually covered by 1963 Vienna Convention on Consular Relations, and thus has a lesser form of immunity.

However, Article 43 of that Convention states that "consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions." There are exceptions for some civil disputes, such as "damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."

The State Department insists that Davis was identified to the Pakistani government as a member of the technical and administrative staff of the embassy when he arrived in the country, and as such enjoys full immunity. John B. Bellinger III, a partner at Arnold & Porter who was the chief State Department legal adviser in the Bush administration, said in any case he would be fully covered as a consular employee as well.

"It's my understanding that State notified him as a member of the Embassy A&T staff, not consular staff," Bellinger said. "But consular staff also enjoy immunity from the jurisdiction of the receiving state with respect to their consular functions."

Bellinger added: "People are overblowing the 'administrative and technical' staff distinction and making it sound like it's something nefarious, which it is not. It is not a made-up term. A&T staff are an accepted category of staff assigned to an Embassy or Consulate, and are described in the Vienna Convention on Diplomatic Relations."

State Department spokesman P.J. Crowley said that U.S. diplomats do not carry cards attesting to their diplomatic immunity. "Once we provide a diplomatic note that an individual has arrived in country, from that point forward, he or she has diplomatic immunity," he said.

Complicating matters even further is that the language of the 1972 Pakistani law implementing the 1961 Vienna Convention puts the onus on the country's weak government to certify that the person in question has diplomatic immunity if a dispute arises. "The federal government is scratching its head, struggling [with] what stand to take, how to bridge this gap between the Vienna Convention and the deficient implementing law," Pakistani international law expert Ahmer Bilal Soofi told National Public Radio.

In the United States, there have been several high-profile cases in which foreigners have escaped prosecution because of diplomatic immunity, at one point leading to an unsuccessful push in Congress to strip relatives and dependents of diplomats of the privilege.

In 1982, the son of the Brazilian ambassador to the United States shot and seriously wounded a D.C. nightclub bouncer and escaped prosecution because of diplomatic immunity. The State Department even allowed him to stay in Washington.

In 1981, the son of a low-ranking attaché at the Ghanian U.N. mission was arrested in New York after a series of violent rapes at knifepoint. Although two of the victims positively identified their alleged assailant, he was released 45 minutes after he was taken to a police station for questioning and later returned to Ghana. "He looked at me when he left the precinct house and snickered and said, 'I told you I had diplomatic immunity,' " the police detective later told Congress. "He was looking at the women, too, and laughing. They were crying hysterically."

In 1997, Gueorgui Makharadze, the number-two official in the Georgian embassy and a rising diplomatic star, killed a teenage girl in a drunk-driving incident in Washington. In that case, the Georgian government waived his immunity after a request from the State Department; he went on trial and was convicted of manslaughter. The Georgian president at the time, Eduard Shevardnadze, called for new rules on diplomatic immunity, saying, "I cannot imagine diplomacy and politics devoid of moral principle."

The Pinocchio Test

If the State Department is correct and Davis was identified as a member of the embassy's administrative and technical staff when he arrived in Pakistan -- and he was accepted by Pakistan on that basis -- then he should be covered by the Vienna Convention and receive diplomatic immunity, no matter what his job was or how heinous his crimes. The United States has upheld that standard in the past, letting alleged criminals go free. It also does not matter what agency Davis works for back in the United States; U.S. embassies are often staffed with personnel from the Defense Department, Agriculture Department and the like, and they all have diplomatic immunity.

(Many governments place spies on their diplomatic employment list, and if caught by the host country, they are often ejected or exchanged for another spy or prisioner. Some Pakistani officials have suggested that Davis could be exchanged for Aafia Siddiqui, an American-educated Pakistani who was sentenced to 86 years in prison for trying to kill her American interrogators in Afghanistan.)

President Obama, however, may have pushed the envelope when he referred to Davis as "our diplomat." Davis may have had diplomatic cover, but not many diplomats carry a Glock pistol -- and then use it with lethal results. The circumstances of his employment -- and the incident in Lahore -- remain too murky to make a definitive judgment on the president's statement at this point.

By Glenn Kessler

Withholding Judgment