Mar 9, 2011

Caught in conundrum

Raymond Davis case has become more than purely legal or even a diplomatic issue

By Ahmad Nazir Warraich analysis

In today’s Pakistan, Raymond Davis has become perhaps the most famous foreigner. A lot has been written and said about his case, both in the electronic and print media. Various aspects of the case have been discussed threadbare. In this regard as I see it, there are four angles to this highly charged issue, which need to be kept in mind to understand its complexity, and any resolution will perhaps have to be based on all four. The first is realpolitik, second is political, third is legal and fourth is moral. This case has divided the people and intelligentsia across the board, leaving the issue confused. My endeavour in this article will be to delineate the issue dispassionately, and leave the readers to make up their own minds, in accordance with their own reading of the situation, and worldview, but based on appreciation of realpolitik, law, politics and morality.

The first aspect is based on the concept of Realpolitik. It is a word which is used to refer to the fact that the world politics or inter-state relations are based on sheer self-interest and power balance, with law and justice being of secondary importance in this calculus. Since times immemorial this has been the basis of international relations. However, in the last century after the formation of United Nations the international community has invested international law with a veneer of justice and rule of law. But the reality is that there is no overarching international authority to regulate these affairs. There is no real equivalent of the three organs of the government, i.e., executive, legislature, and judiciary, at the international level. Therefore, there is no body to enforce international law. At end of the day, international law is dependant on the principles of reciprocity and power politics for its implementation.

The genesis of international law lies in giving some order to an order less international polity, where each state is theoretically sovereign, and free to pursue its national interests, which may run contrary to the national interests of the other states. Additionally, within its borders each state is sovereign and has control over how to deal with people subject to its jurisdiction. This natuarally has the potential to create problems when interests of two states clash, and when one state feels that its citizen is being ‘maltreated in the other’.

The second aspect is political. Let us look at the politics involved at the national level. The issue of Raymond Davis has aroused intense internal political activity, involving all political forces. Foreign policy issues are being played out on the streets, which is dangerous even in the best of times, let alone the precarious times we live in. Pakistan is broadly divided along two lines, anti-Americanism and pro-American sentiment. The anti-American sentiment is postulated by people who feel that we have towed the American line for too long. ‘We will eat grass, but not bow before US pressure’, is the emotionally charged sound byte of this group. Fair enough, we have been mistreated by US for decades, and in the regional political construct are second to India traditionally in the American eyes, and a pawn to be used in the various Great Games taking place in the borderland of South Asia and Central Asia, without their being much interest in our well-being per se.

The pro-America lobby, which in my view is a misnomer, as many of them are also against such American policies, are perhaps showing a greater concern for the realities on the ground, and, therefore, advocating a stance based on ‘realism’, in view of our not just economic dependence on US, but also the geo-strategic compulsions of our neighbourhood.

In addition, the whole scene is complicated by the domestic political parties, each vying to make the most of the situation, some to embarrass the government, others to gain some political space in the domain dominated by the two main parties. The fiercely strong and independent media also sees this as news worthy item, and has accordingly given the issue a lot of space and time.

The third aspect is legal. Such is the role of emotions and feelings, that the legal aspect seems a subsidiary issue to be interpreted in accordance with the political and emotional bent of the individual. There are two aspects to the legal issue, the international law and the national law issues.

The relevant international law issues are the provisions of treaty and customary law and practices with regard to the immunity provided to diplomatic and consular staff of foreign countries. The primary legal provisions are contained in the two Vienna Conventions on Diplomatic Relations of 1961 and Consular Relations of 1963. There is lack of clarity on which treaty will apply, as the US State Department seems to have not taken a clear stand on it initially, and first declared Raymond on the staff of the Consulate, and later declared him to be a diplomat. The local commentators believe that the fact that he was working and living in Lahore means that he was having a consular status and not a diplomatic status. Needless to say, a diplomat has greater privileges/immunities than a consular staff.

In both cases he enjoys certain immunity, even the statement given by Shah Mahmood speaks about ‘no blanket immunity’, not about no immunity. In this regard, the Articles most quoted are 31 of Diplomatic Relations and 41, of the Consular Relations. Article 31 provides immunity from criminal action to diplomats whereas 41states that such a consular staff shall enjoy immunity from arrest, except for ‘grave crimes’. The matter is further confused as the Foreign Office has avoided taking a clear stance on the status of Raymond.

The relevant national law provisions are, of course, the national criminal law. With respect to the national legal position, the matter shall be decided by the courts, which have won the confidence of the people through their independence, and therefore, everybody, including the government and opposition have put their trust in them.

The fourth aspect is moral. Morality demands that anybody who does wrong should be punished. This is perhaps the strongest argument in this case. Somebody who does wrong should be punished, irrespective of the fact that he is the citizen of a superpower or of a zero power. There are various kinds of immunities, some for high officials and others for diplomats. The purpose for giving high officials immunity is to free them from the threat of court cases so that they may perform their duties in accordance with the discretion provided to them by the relevant laws and regulations.

The rationale for providing the cover of immunity to diplomats and consular staff is based on different grounds. This is based on the centuries-old reciprocal need to protect each others representatives in foreign lands, which was established as a cardinal principle of diplomacy. This natuarally would apply even when they did something wrong. The problem is what to do when they do so, but at the same time not compromise their immunity. The solution that the international community has consensually come up with is that in such a case the state of the diplomat may waive the immunity, or it may try him at home.

The case has become more than purely legal or even a diplomatic issue. It has rightly raised the ire of Pakistanis as the very tragic and unfortunate deaths of three of our countrymen are involved. This has come in the background of frequent drone attacks taking place in the tribal areas where the human ‘collateral damage’ taking place, angers vast sections of the society. There is a general feeling that successive governments, both civil and military have historically not stood up to the Americans. In this background, the case has adopted a special importance. This is perhaps why the government(s) have preferred to let the courts decide the issue, as there are political and diplomatic costs involved, whichever way the government goes. The case has become a source of opportunity as well of problem for Pakistan, only time will tell how it is resolved.

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