Defusing the Davis affair

M Saeed Khalid
A pall of gloom hangs over already troubled Pak-US relations following the murder on January 27, 2011 of two Pakistani youths by an American agent in Lahore. A third young man was crushed to death by the US Consulate’s vehicle that rushed to the rescue of their trigger-happy national. While the assailant identified as Raymond Davis was successfully intercepted by the traffic wardens, those travelling in the second vehicle managed to return to the Consulate. The Lahore police was justified in arresting Davis as he was trying to escape from the scene. The first statement issued by the American Embassy after the tragedy described the unnamed attacker as a staff member of the US Consulate in Lahore. Under the Vienna Convention on Consular Relations of 1963, consular officials do not enjoy immunity from prosecution if charged with committing a grave crime. However, the US modified its initial stance by declaring the accused as a member of the Embassy invoking immunity from criminal jurisdiction under the Vienna Convention of 1961 that deals with Diplomatic Relations.

Their anxiety to get Davis out of police custody has only added to the anger of bereaved families and Pakistanis in general. While pursuing relentless efforts to press for his release on the basis of diplomatic immunity, US officials have glossed over two possible courses to be followed in the event of crimes committed by individuals who enjoy immunity as members of a diplomatic mission.

The Vienna Convention of 1961 provides that the sending state, in this case, the US, can revoke the immunity of a member of its diplomatic mission so that the person can be tried in the courts of the state where the crime was committed. In a famous case, the US pressed the Republic of Georgia to revoke the diplomatic immunity of one of its diplomats posted in Washington so as to try him for causing the death of a US national in a traffic accident. The sending state can also try the person under its own laws. While insisting on its agent’s release, the US has not even hinted at these possibilities. It is not clear if the Pakistan Foreign Office has raised these options with the US. But it has avoided taking a definitive position on the American claim that Davis is a member of the US Embassy. American posturing so far strengthens the perception that it does not really care for the lives of non-Americans. If the US does not act to soothe feelings in this country, the shooting spree at Mozang will cause further damage to what is left of the friendship between the two countries.

The Foreign Office’s reluctance to clarify its position on Davis’ status has led the Lahore Court to ask for a formal opinion on this crucial point. The barrage of statements asserting that the matter is in court is not helpful in the present situation as the court is itself seeking the federation’s guidance on how to proceed further in this complex case. If the Foreign Office confirms the US contention that Davis is a member of its Embassy, then Pakistan has the option of asking the US Government to revoke his immunity. Or, it can ask the US to give an undertaking that, if repatriated, Davis will be tried under US law for killing two Pakistanis.

If, on the contrary, the Foreign Office determines that Davis is not a member of the Embassy, then there is nothing preventing his trial in a Pakistani court. In both cases, it is for the courts to pronounce on the plea of self-defense advanced by Davis. The matter can best be settled through diplomatic negotiations between the two governments in consultation with the families of the three victims. The US must also come clean about the identity of the person driving the vehicle that fatally wounded the third Pakistani.

In view of the extraordinary character of this case, the judiciary should be spared from deciding this matter as a simple criminal case. Some cases involving employees of diplomatic missions have been resolved through compensation to the bereaved families. This could be a possible way forward in the Davis case provided the Foreign Office confirms that the accused is a member of the US Embassy in Islamabad. In exchange, the US must agree to respect Pakistan’s sovereignty in processing visa applications of its agents. Additionally, the murders in Lahore should lead to stricter measures directed toward putting an end to the free movement of armed US personnel on our streets.