Diplomatic criminal: Will Raymond Davis go unpunished?

Published: February 3, 2011

Davis' identity is still being debated.

On January 27, when American national Raymond Davis was arrested for shooting and killing two Pakistani civilians on a busy road in Lahore, he identified himself as a diplomat. Following this lead, the media initially dubbed Davis as a diplomat; he was then called a consular employee and finally, some reports claimed he was a civilian visiting Pakistan on a business visa.

The US State Department has not divulged much information regarding his identity. On the day of the incident, Assistant Secretary of State Philip J Crowley refused to discuss Davis’ identity and only referred to him an employee at the US Consulate in Lahore.

After the Lahore police conducted an investigation into the matter, Davis was remanded for six days in judicial custody. This development triggered the debate on whether or not Davis enjoys diplomatic immunity as expounded in the Vienna Convention on Diplomatic Relations.

As a diplomat, Davis enjoys immunity

The convention is a multilateral treaty that governs the principles of diplomatic relations between the independent countries. Generally, diplomats and their families enjoy blanket immunity from the criminal and civil jurisdiction of the host country under the Vienna Convention on Diplomatic Relations. According to various news reports, it has been confirmed that Davis doesn’t fall in the category of a diplomat since he was said to be a member of the consular staff. If this is indeed true, then there is a separate multilateral treaty called the Vienna Convention on the Consular Relations which applies to consular relations between countries.

Was he acting as a consular officer?

Unlike the Vienna Convention on Diplomatic Relations, the Convention on Consular Relations doesn’t provide complete immunity to consular officials; this immunity is limited to apply to an official only during the course of his duty. It has been said that at the time of the shooting, Davis wasn’t exercising any consular function.

Several courts in the US have interpreted the scope of ‘consular function’ quite broadly as it is a fact based term. In one of the well known cases, Commonwealth v Jerez, the US court held that a consular officer charged with assault and battery of a police officer was immune under the Consular Convention because at the time of the act, the consular officer was going to attend a cultural function. Hence, he was performing a ‘consular function’.

Technicalities and possible loopholes

It is yet to be determined whether Davis was actually performing the ‘consular function’ at the time of the crime or was conducting private business. Regarding consular immunity from criminal offences, Article 41 Section 1 of the Vienna Convention on the Consular Relations states that a ‘consular officer shall not be liable to arrest or detention pending trial, except in the case of a grave crime…’

‘Grave crime’ is again an expansive term. Although any reasonable person can conclude that there is nothing graver than taking someone’s life, there are certain exceptions such as self-defense which have been invoked by Davis. The Pakistan Penal Code sections 96-106 deal with the issue of self-defense. Section 100 mentions cases in which the right to self-defense resulting in death can be exercised:

The right of private defense of the body extends, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

2. Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault…

Under Section 100 Davis, has a plausible claim that he acted in sheer self-defense because the armed men tried to rob him. However, there are still certain factual questions that remained unanswered:

1. why was a consular officer carrying a gun? A diplomat is allowed to carry a gun only when the host country exclusively permits it.

2. the other thing that raises questions is why weren’t Davis’ identity and job status released earlier.

According to the latest reports, the US government has claimed that Davis had diplomatic status, and is therefore immune from local (Pakistani) jurisdiction. The local media, on the other hand, is brewing its own conspiracy theories about the murky affair.

A diplomatic criminal?

It is apt to note that the concept of ‘diplomatic crime’ isn’t new. Several diplomatic officials in the US have committed serious crimes (including killings) but get away under the cover of diplomatic immunity. If the US government claims diplomatic status for Raymond Davis, bound by the rules of Vienna Convention on Diplomatic Relations, Pakistan will have to release him.

In such a case, the most Pakistan can do is to declare Raymond Davis persona non grata under Article 9 of the Convention. This means that as a ‘diplomat’ Davis would no longer be welcome in Pakistan, and the US government would be expected to recall him and cancel his mission.

ayesha.umar

Ayesha Umar

Interested in current affairs, cultural and gender-based issues Ayesha religiously tweets @ayeshaesque. In her free time she blogs at Fifth Junction and indulges in random photography.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • http://pk.linkedin.com/in/babarjaved Babar Khan Javed

    I can’t believe the author is really posing the question , ‘why was he carrying a gun?’

    being unarmed in a country like Pakistan is one of the stupidest things you can do to yourself and your family.

    “A diplomat is allowed to carry a gun only when the host country exclusively permits it”

    and a President isn’t supposed to sell a trillion dollars worth of natural resources to the highest bidder without the nations consent.

    This is Pakistan, there are no rules.

    Come back to reality. I support Davis’s actions, kill all criminals.

    Ask yourself, what would you do if you’re armed and 2 men on a bike (in Pakistan) approach your window?Recommend

  • vasan

    Your internal minister has declared that Davis carries a diplomatic passport and diplomatic visa. Why would newspapers keep raising this issue again and again “According to various news reports, it has been confirmed that Davis doesn’t fall in the category of a diplomat since he was said to be a member of the consular staff” Who in your country has the final say on this matter of Diplomatic passport/visa, and if he carries a Diplomatic passport/visa, then Pakistan should ask US to waiver the immunity and get on with prosecution rather than keep harping on this and confuse the public. Either the minister is bluffing or the media does not trust himRecommend

  • Adeel Ahmed

    @Babar Khan Javed:

    What has made you make these accusations of the two being criminals?
    There is absolutely no proof that they were… just as you say Davis was carrying a gun, so were these two… And if you tell me about FIR’s against the two guys… then I’ll throw back your own argument… this is Pakistan, there are no rules… FIR’s can be made giving 1000 rupees to a police officer.

    And where is the third car that crushed a man on the road… why isn’t the American consulate flatly refusing to produce the car… which by the way is evidence in a court case and withholding it is a crime in itself.

    Davis shot them in their back… which obviously means that they were not trying to loot him, or anything of that sort…

    but after all this, I believe Davis will be let free because people in out government are scared, corrupt, begging bigots who need America’s support to give them asylum/bail them out when things go bad. Recommend

  • parvez

    Holding a diplomatic passport with a visa that says on official business does not make him a diplomat entitled to diplomatic immunity. For this he has to have our foreign office’s accreditation which is given in the form of a card which he carries with him all the time.
    This I learnt from a TV talk from the statement of a senior ambassador of ours.Recommend

  • Ayesha

    This case has become quite complex due to distortion of facts. In the beginning the news reports had quoted eyewitnesses that the victims were brandishing guns which made it clear that the accused was acting in self defense.

    If the US claimed diplomatic status for Davis than Pakistan should respect the Vienna Convention otherwise Pakistan’s diplomats may suffer in the US as well in case of criminal prosecution. Diplomatic relations are reciprocal.

    @Parvez: Your point is interesting. Recommend

  • http://jannath bvindh

    Going by the Pakistani reaction, I am sure that Raymond Davis killed a couple of righteously guided Caliphs.Recommend

  • Humanity

    @bvindh “Going by the Pakistani reaction, I am sure that Raymond Davis killed a couple of righteously guided Caliphs.”

    I agree.

    Had a Paki killed the two men, the case would already be cold and biting dust with a proclamation note saying good riddance!Recommend

  • http://aamjanata.com Vidyut

    Davis being armed is a complication, but a complication that possibly saved his life? It is not entirely unreasonable for him to arm himself if we look at current circumstances where Taseer was killed by his own guard. As an American, he is probably a high risk person anyway.

    I think the bigger difficulty is going to be in managing the US. If they have claimed diplomatic immunity and it has become a very deliberate and public arrest now, they will see it as a violation of diplomatic immunity – another sign that Pakistan as a country is now ruled by mobs and not commitments and established protocols. I imagine they will exert considerable pressure to get him out, diplomat or not.

    Seeing as how IMF has refused to release money to Pakistan based on the failure to implement reforms, it is possible that other things like this, or NATO trucks, etc can get dragged into this conflict making it very difficult for both, for different reasons. And it will become more and more complicated with the passage of time and will become an issue of pride for both.

    It has become a sign of the volatile times and the total loss of the government’s authority that a mobocracy and judgocracy together are making the decisions while the media cackles on from its respective perspectives and the government trembles in its wake.Recommend

  • faraz

    i must say at this point, Dear Mr. Babar, if you are a pakistani, it is dissapointing to hear that pakistan is pakistan and anything can be done here. I agree the law and order situation is not good, but doesnot mean that consulate officers are allowed to kill anyone in self defense.
    The point to be noted here is there is no proof that the two pakistani guys were there to rob him. We cannot justify that if the President of country is corrupt, disgraceful, dishonest..civillians would be allowed to do anything the wish for.

    Your Support for Davis is purely baseless and emotional action. Recommend

  • rabia

    all pakistani’s are really sorry for the families who have lost their loved ones…
    the thing is that it is a hilarious idea that those guys where not there to rob him..those who are saying they need evidence? weren’t there two other pistols found on the crime scene…????
    i am not justifying what raymond davis did..but the fact is he was defending his life…american’s are way too smarter than us…they are not like us who are losing their lives without knowing why we are being killed?look senator john kerry is here to talk to our leadership…he was so polite at the press briefing …unlike american usual attidude… just for their damn one citizen who killed three people…still they think that he should be realized…how many of our leadership went to america for dr afia.. who had killed no one at all???no one…isnt it shameful enough???she could have been saved…..if our so called leader ship have shown some guts…Recommend

  • http://dunyanews.tv/index.php?key=Q2F0SUQ9MiNOaWQ9MjA0NTg= Muhammad Abu Bakar

    Lahore High Court says no exit before trial to raymond Davis for full story visit http://dunyanews.tv/index.php?key=Q2F0SUQ9MiNOaWQ9MjA0NTg=Recommend

  • http://blogger.com/author/khyrat/ Syed Khyrat Hussain

    Good effort. Latest status is also seen on following link. Please go through it.

    http://bloggerstown.com/2011/02/18/pakistani-government-to-decide-status-of-jailed-american-in-three-weeks/

    ThanxRecommend

  • http://blogger.com/author/khyrat/ Syed Khyrat Hussain
  • http://none Bangash

    why is Davis a criminal ? He has not been convicted by any court.Recommend

  • anonymaous

    yes he has. LOLz. i dont know to laugh at myself or the stupidity of our peopleRecommend