Search This Blog

Friday, February 18, 2011

An imperial hubris

Editor's Note: The edited version of this article under a different headline was carried by a newspaper today. The writer has offered unedited version of the same to be used exclusively on Pakpotpourri2.

By: Shireen M Mazari 
Once again Pakistan is being subject to the usual US imperial arrogance – this time on the Davis case. We have had threats of all kinds simply to get a murderer released and even President Obama has jumped into the fray, imperially claiming Davis has diplomatic immunity! Of course US Presidents, in recent times at least, have been known for their lies with Bush commencing his Iraq war on the WMD lie and Colin Powell brazenly lying to the UN Security Council! So Obama may be following yet another Bush tradition – after his exuberant adoption of the drones’ policy. Such imperial hubris reflected in the threats of aid and meetings’ cut-offs should be seen as an opportunity by the Pakistani state to re-evaluate its whole relationship with the US and restructure it more favourably. If the whole “strategic” edifice is under threat over the issue of Raymond Davis, one really wonders whether there ever was such a relationship to begin with. Take the example of our longstanding strategic ally China: has this relationship ended despite the targeted killings of Chinese in Pakistan?

Perhaps if the US could see beyond its imperial arrogance, it would realise that right now its own interests would be damaged far more than the suffering the Pakistani nation may suffer – as opposed to the ruling elite – especially in terms of its so-called “war on terror”! But the US rarely sees reality beyond its blinkered vision and its contemptuous arrogance towards the Pakistani state is so immense that it has chosen not to have a lawyer represent Davis in the Lahore High Court!

It is also amusing and ironic to see the Obama Administration, as well as US lawmakers, suddenly accuse Pakistan of not abiding by international law! Given how the US not only flouts international law at every opportunity but refuses to subscribe to accept the International Criminal Court and any International Court of Justice Advisory Opinion that goes against it (Remember the Nicaragua harbour mining case?), it is hardly in a position to adopt the high moral ground on international law. Only recently, the US violated the Non Proliferation Treaty (NPT) it had put its signature to, when it signed its nuclear deal with India – something Senator Kerry felt he should educate us on in terms of the Vienna Conventions. By going for this deal the US contravened Articles I and III:2 of the NPT, which amongst other restrictions, forbid transfer of sensitive and dual use technology to non-NPT states.

However, what is the Pakistan government up to with its Ministry of Foreign Affairs seeking three weeks further to give a simple response to the issue of Raymond Davis’s immunity issue? As if the absurd proclamations and retractions of the PPP office bearers and ministers were not folly enough, we have now had the Punjab Chief Minister state that Interior Minister Rehman Malik had informed him that the Federal Government was going to give Davis diplomatic immunity and would be informing the Lahore High Court of the same. Clearly that too did not happen on Thursday as the case got underway and the nation must be grateful for these small hiccups in the path of total subjugation to the US Will. Unfortunately, the LHC has had to stay the proceedings till the federal government overcomes its habitual pusillanimity when confronted by the US and plucks up the courage to take a clear position on the immunity issue.

But why is the Pakistani political leadership so hesitant on the Davis case since whichever legal perspective one takes, there is no ground on which Davis can claim diplomatic immunity. In view of the documents already in the public domain, including the “official visa” – and there is a qualitative difference between his visa and a diplomatic visa – there is no ground on which Davis could be placed in the category of a diplomat. However, even if one were to concede the US argument of his being “Administrative and technical staff” and thereby entitled to “diplomatic immunity” under the 1961 Vienna Convention; for such staff this “immunity” is not applicable to actions outside “official functions” under Articles 31:1c and 37:2.

In any case, with the material evidence, including photographs of sensitive military offices, recovered from Davis as well as his pay slip for the period beginning September 2010, he clearly falls into the category of being hired by the US State Department’s Bureau of Diplomatic Security and is in all probability a CIA “stringer” intelligence agent. In fact, as the facts of Davis come to light, it appears he may have deliberately allowed the second car to speed away as it may have had more covert operatives in it. Interestingly, in November 2009 and later in 2010, Davis was caught in restricted military locations in Peshawar and sources state that the Foreign Office verbally asked the US Embassy to remove him from Peshawar. Proper interrogation of Davis is essential now for Pakistan to discover the linkages with a range of US covert activities.

While we can sigh with relief over the halt in drone attacks since the arrest of Davis, the cause for this halt is probably the US fear that the location of other stringer agents may be revealed through these attacks. That brings up another interesting aspect of the Davis case: the possibility of charging him with espionage given the massive evidence already available and made public. After all, if the federal and provincial governments manage to persuade, through fair means or foul, the families of the victims to accept “blood money”, Davis still needs to be detained on espionage charges and tried for the same. This is one criminal who must not be allowed to get away with impunity.

Most important, though, the Davis case should persuade the Pakistani state to rein in the thousands of US operatives – both CIA and private security contractors – and rid the country of them as soon as possible so that there is no repeat of this lethal incident again on our territory.
(The writer is a former editor of The Nation and ex-head of the Institute of Strategic Studies in Islamabad).

Tuesday, February 8, 2011

Raymond Davis, Murder and Vienna Convention 1961

By Yasmeen Ali

This ia a Pakpotpourri Exclusive

By: Yasmeen Ali

You cannot open the TV, or read a paper here without more and more news about Raymond Davis and his murderous act. His killing on Jan. 27 of two young Pakistanis has created international waves, too, plunging the Pakistan-America relationship into stormy waters.

A great deal has been written about the case: Raymond Davis’s employment status, whether he is a diplomat or not, who his victims were and what led to their demise at his hands, and finally whether or not Davis can be detained and ultimately tried under the Pakistani Law.

Interestingly though, nobody in the media has made a study of the Vienna Diplomatic Coventions that discuss diplomatic immunity. The convention of 1961 gets cited routinely by the American government, which claims it grants all diplomatic workers immunity from prosecution.

But that claim overstates the case. The actual document — never actually quoted — is more nuanced.

A friend notes, “The issue is not who the two Pakistanis were. The real issue is: The US media has confirmed what the US government is denying: Davis runs a private security firm. He is a military contractor. He is registered in Colorado as the owner of a security firm.” He says the questions that should be asked are: What was his real job in Lahore/Islamabad/Peshawar? And can a diplomats carry an unlicensed gun?”

This same friend also suggests that the indentity of the two Pakistani shooting victims — according to a number of Pakistani reports, and to several in the US, including ABC News, they were working for Pakistani intelligence and were tailing Davis — is a distraction. He says the real issues are what Davis was doing here and secondly, can a so-called “technical advisor”–the term the US State Department finally settled on to describe his job — claim diplomatic immunity?

I would argue, though, that the real issue is a general ignorance concerning what diplomatic immunity is, and whether such immunity extends to all acts of any nature committed by an individual, even if that individual does qualify as a diplomat. All other questions are a distraction.

The concept of diplomatic rights was established in the mid-17th century in Europe and since then came gradually to be accepted throughout the world. These rights were formalized by the 1961 Vienna Convention on Diplomatic Relations, which protects diplomats from being persecuted or prosecuted while on a diplomatic mission.

However, if we examine the specific articles of that Vienna Convention of 1961, some interesting facts emerge.

First, Article 29 states that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving or host state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity. But those, like the US State Department and Davis’s Pakistani attorney, who demand the release of Raymond Davis on this ground, have obviously neglected to read, or don’t want others to read, the related articles within the Convention which strip away any absolute blanket coverage under the guise of “diplomatic immunity” for visiting or appointed diplomats.

Article 38 of the Vienna Convention 1961 states that except where additional privileges and immunities have been specifically granted by the host State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.

The above article clearly differentiates between an act carried out as part of his official duties and those done as a personal act. Any actions done personally and outside the ambit of official consular duties shall not be covered by “diplomatic immunity.”

Article 37 of the 1961 convention goes on to reinforce the above limitation on immunity by stating:

…Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.

The question then becomes not whether or not those murdered were Inter-Service Intelligence (ISI) agents, robbers or fruit sellers, but whether Davis did or did not have diplomatic immunity, but whether his fatal shooting of the two men was conducted while he was involved in performing his official duties.

If the answer to that question is no, Raymond Davis cannot claim diplomatic immunity.

The US State Department is also carefully avoiding mentioning a later treaty, the Vienna Convention on Consular Relations of 1963. That treaty, which extends and further clarifies, and where there may be a conflict, would supersede the earlier treaty, states in Section II, Article 41 in its first paragraph regarding the “Personal inviolability of consular officers”:

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.

The law here would seem to be quite clear. If Davis was in Lahore on anything other than official consular business, and if he killed two people “in cold blood” as the Lahore prosecutor has stated, then legal authorities in Pakistan are absolutely within their rights under the Vienna Conventions to be holding him for trial.

If he is released before a judicial determination regarding his claim of immunity, or if he is found to be properly detained but is released anyhow before standing trial for the killings, it would be not because he has diplomatic immunity, but because of political pressure from the US. But that would be something that is outside of the realm of the law.

Yasmeen Ali is a Pakistani attorney who lives in Lahore

NOTE:This article was published in PAKISTAN OBSERVER and COUNTER PUNCH