A legal view of immunity to Raymond Davis
ISLAMABAD: Does Raymond Davis have diplomatic immunity? A simple answer is no, because he is not a diplomat. Diplomatic immunity in layman’s terms is a form of legal immunity held between governments through treaties, which guarantee that diplomats are given safe passage and considered immune from civil suits or criminal prosecution.
The governing instrument of International Law for diplomatic immunity is called Vienna Convention on Diplomatic Relations 1961, and a lot has been said about this already in press and on TV. However no one has paid attention to a similar treaty of just two years later, called Vienna Convention on Consular Relations 1963 which was adopted by Pakistan through Diplomatic and Consular Privileges Act 1972.
This Convention governs immunities and privileges accorded to Consulate members and its staff. The word “consular post” is defined in Article 1 of 1963 Convention as any consulate general, consulate, vice consulate or consular agency, and consular officer is defined as any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions.
After understanding these two definitions given in Vienna Convention of 1963, one needs to read Article 41 (1) which says: “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”.
Now having read the law, there should be no doubt in anyone’s mind that if a member of US Consulate in Lahore kills someone, he is answerable to a court of law in that jurisdiction, as there is no other crime more heinous or more grave than murder. The next important fact to establish here would be: who is Raymond Davis? This has to be looked further into from two angles: one concerning his legal status and second regarding his factual status. For determining his legal status, the US Embassy Islamabad’s press release of January 28, 2011 is quite helpful which says:
‘A staff member of the US Consulate General in Lahore was 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’.
This statement can be read on US Embassy’s website at http://islamabad.usembassy.gov/pr-11012801.html.
In light of this we can say that Raymond Davis who was a US Consulate Lahore employee shot two citizens of Pakistan, and his accomplices (still at large) ran over another passerby and as he is not a diplomat as per Vienna Convention of 1961 but a consular officer as per Vienna Convention of 1963. Therefore he has no diplomatic or consular immunity as the crime concerned is of grave nature, and his fate is to be determined by the court of competent jurisdiction, which in this case is District and Sessions Court in Lahore.
Now the second angle about Raymond Davis is the factual aspect as to who is Raymond Davis? According to American press, Davis runs a Florida based security company named M/s Hyperion Protective Consultants. Similarly, according to American analysts and security experts this Florida based company sounds like a typical CIA operative. According to Jeff Stein’s report in Washington Post, and the security expert Burton, Davis “had outstanding situational awareness to recognize the attack unfolding and shoot the other men. It shows a high degree of firearms discipline and training.”
And finally the post mortem report of victims establishes the professional style of execution. Another interesting fact is that it took US Embassy days to determine the exact status of Raymond Davis. And to further insult our intelligence the US Embassy press release on the issue on January 29 declares him employee of US Embassy Islamabad (this not so innocent assertion is to claim diplomatic immunity under 1961 Convention). And the story of self-defence does not fit in quite well in the presence of several bullet shots at the back of motor-cyclists. In any event, for a successful plea of self-defence Davis would have to establish grave and immediate danger to his life and the use of reasonable force to avert such danger.
In the end, the uproar of Pakistanis in the aftermath of this incident and the prevailing anger among masses should not be construed as anti-American. Pakistanis do not hate America, for many it is the hope of success and better life. The idea of liberty and freedom flows from US in modern history. But majority of Pakistanis do hate American state’s hegemony, self-righteousness and their policies in the region. American State was much hated in the Arab world for their policies towards Palestine and Israel and now we see uprising in Egypt and Jordan against their dictators who had been toeing American line for too long. This growing hatred in Pakistan for America is rather new for American post 9/11 policies. Let’s hope it does not lead Pakistan to utter chaos.
The writer is a practising lawyer in Islamabad. email: [email protected]