Can America Get Away With Murder?

An American Consulate security guard commits cold-blooded double murder and Pakistan is denounced for investigating it. What Does America have to hide?

Pak-American Relations

And if none of the above was the case, the American response simply does not make sense. By trying to bully Pakistan into submission the Americans tried to undermine its sovereignty on an issue in which it had no legs to stand on. It provoked Pakistanis into rising against the American diktat with one voice, which has cornered an unpopular pro-American government, seriously hurting America’s own interests. Pakistanis are reminded once again, so soon after promises were made for a lasting friendship, that Pak-American relations, like always, hang by a thread and Pakistan can be jettisoned any time if it refuses to fall in line when dictated or when the American interests have been served, enormous sacrifices made by Pakistan notwithstanding.

A question being asked in Pakistan is: Is the US serious about putting to risk a strategic partnership with Pakistan on this issue that President Obama was so keen to strengthen few months back, without which the American war on terror cannot not be won, nor can normalcy return to Afghanistan? And there is a strongly emerging public opinion, of which the Americans are no doubt aware, that calls for an end to all kinds of dependence on America.

Diplomatic Immunity Under Vienna Convention?

The US officials vehemently insist that Davis, as a functionary of the Consulate, enjoys a blanket diplomatic immunity under the Vienna Convention and must get immunity from trial. Besides making noises, the State Department or the embassy have not been able to establish their claim. Instead, they have gone on to accuse Pakistan of violating the Vienna Convention. A simple reading of the Convention would show that the US position is utter nonsense.

Whether Davis has diplomatic immunity hinges first and foremost on whether he is actually a “functionary” of the consulate.  Notwithstanding the claims of the US Embassy, Davis was carrying a regular US passport with a business visa when arrested. The embassy is said to have later produced another passport of him with diplomatic visa, the authenticity of which appears doubtful after the statement of former foreign minister Qureshi, who categorically stated that the foreign office has no documentation to establish this man as a diplomat or he was ever granted diplomatic privileges. This evidence is believed to have been conveyed to US officials and Senator John Kerry who visited Pakistan a few days back to seek Davis’s release after which the tone and tenor of the US administration has softened somewhat. Other factors that disprove the US claim are listed later in this piece.

The Vienna Convention that the US officials quote in support of their claim does not provide absolute immunity. It is conditional. 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.” This article differentiates between an act carried out as part of his official duties and one that is his personal act. Any personal actions that lie outside the ambit of official consular duties shall not be covered by “diplomatic immunity.”

Article 37 of the 1961 convention reinforces 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 29 to 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”.

If Davis claims diplomatic immunity from arrest and trial for the crime of a double murder, he will have to prove, firstly, that he fulfills the conditions and possesses necessary documentation to qualify as member of diplomatic staff of the US Embassy, and secondly, even if he qualifies, then he should admit that he carried out the killings while performing official duty.

The US State Department intentionally avoids the mention of a later treaty, the Vienna Convention on Consular Relations of 1963, which further clarifies in Section II, article 41: “…And where there may be a conflict, this would supersede the earlier treaty”. It goes on to say that: “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”.

Vienna Convention, therefore, quite clearly states that Pakistani authorities are perfectly within their rights to arrest, investigate, and prosecute Davis for a grave crime (and murder is as grave a crime as it can get) that he perhaps committed in his personal capacity.

Pakistan’s Foreign Minister is shown The Door

Incidentally, this episode occurred when the federal cabinet was being reshuffled. Due to his old political rivalry with the Prime Minister, Foreign Minister Qureshi, was conveniently eased out in the process. This served another purpose too. The head of a defiant foreign minister was presented to Secretary Clinton. Qureshi settled his scores by spilling the beans to the media about the conclusions that the foreign office had internally arrived at in determining Davis’s diplomatic status. This has made it impossible for Zardari’s men to now fudge the documents.

Did Davis Enjoy Diplomatic Status?

Evidence that is now public shows that Davis was not issued a diplomatic visa to begin with, but a business via. He was not assigned to the embassy in Islamabad, as was being claimed, but was moving between the consulates. The nature of his duty was never provided to Pakistan’s Foreign Office for determination of his status, and all that was known was that he was a technical advisor (security guard). His case was not among the cases submitted by the US Embassy to the foreign office as late as one day before the shooting incident for grant of diplomatic status. And he did not hold the ID issued by foreign offices to diplomats — a universal practice.

An Angry People

A survey for ‘al Jazeera’ by Gallup Pakistan found 70% Pakistanis holding America to be the greatest threat to Pakistan’s sovereignty. Another survey in mid 2009 by the Washington-based Pew Research Center found that 64% of Pakistanis regard America as an enemy, only 9% believing it to be a partner. In another recent poll by World Public Opinion, Pakistan’s perception of the U.S. under the Obama administration was found not substantively different from that of the U.S. under Bush. Only 30% of Pakistanis showed any confidence that the U.S. president would do ‘the right thing regarding world affairs’.

People in Pakistani streets blame America for all of Pakistan ills. They cite a pattern of deceit, exploitation and misuse of trust by America over five decades. They perceive America to be an arrogant, war-mongering super power that, propelled solely by its global agenda and imperial hubris, foments trouble, and attacks and destroys people and countries. They are also angry with the US for using Pakistan in its war on terror and have been demanding immediate end to illegal drone attacks that have claimed hundreds of lives in FATA area.

Against this backdrop, the Raymond Davis incident proved to be a flashpoint. People were enraged, firstly, because an American killed two Pakistanis in cold blood, secondly, because the US administration instead of showing any remorse, began bullying Pakistani government for having arrested Davis and investigating the murder and pressurizing it to release him forthwith, and thirdly, because it once again brought into focus the threat to Pakistan’s security at the hands of the ill-reputed Blackwater and DynCorp.

Coming as it did at a volatile time when the Arab world is rocked by uprisings against corrupt and incompetent US-backed autocracies and when the need for a similar revolution in Pakistan is being openly encouraged by the civil society leaders who draw a parallel with conditions in those countries, the Davis episode has proven to be extremely dicey for Zardari government. On the one hand its tail is being twisted by Washington and on the other the people are ready to lynch it if it succumbs to Washington’s pressure. Prime Minister Gilani admitted this when he said his government is between the devil and the deep sea.

Concerns About Pakistan’s Security

Again into focus is the issue of dangers to Pakistan’s security at the hands of US defense contractors who deploy spies, murderers, terrorists, thugs and rogues under the guise of diplomats to render illegal service for money, including kidnapping, torture, murder, sabotage, etc., acts that the US Constitution prohibits the US government to engage in.

In Pakistan, Blackwater operatives have long been reported to be positioned. Jeremy Scahill, author of the NYT Best Seller Blackwater, in his article “The Secret US War in Pakistan” states: “At a covert forward operating base run by the US Joint Special Operations Command (JSOC) in the Pakistani port city of Karachi, members of an elite division of Blackwater are at the center of a secret program in which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives, “snatch and grabs” of high-value targets and other sensitive action inside and outside Pakistan.”

It is now believed that Davis, 36, a former US Special Forces operative, is either a CIA agent or an employee of a mercenary firm — possibly Xe, the reincarnation of Blackwater. Jeff Stein, quoting Fred Burton, a veteran of the State Department’s counter-terrorism Security Service, wrote in the Washington Post on January 27, that Davis may have been involved in intelligence activity, either as a CIA employee under embassy cover or as a contract worker at the time of the shootings. Burton, who currently works with Stratfor, a Texas-based “global intelligence” firm,  even speculates that the shootings may have been a “spy meeting gone awry,” and not, as US Embassy and State Department officials claim, a case of an attempted robbery or car-jacking.

Or was it that Davis was on an official job and felt threatened by the motorcyclists whom he thought to be intelligence agents tracking his activities whom he could not shake off and hence killed them? Perhaps he had crossed the red line and feared being exposed. 

Blackwater affiliates are said to be honeycombed with CIA, US Joint Special Operations Command (JSOC), Pentagon and State Department in conducting a variety of operations. It is also perceived by the people and the media to be involved in supporting the agenda of destroying the fabric of Pakistan’s nationhood through suicide bombings, fanning religious extremism and supporting nationalist and separatist movements, using Pakistanis whose loyalties are up for sale.

There is a strong belief that Tehrik-e-Taliban Pakistan (TTP) and other terror groups are acting as the front for the American contractors assigned the job of destabilizing Pakistan. Information coming out of foreign office says that Zardari buckled under US pressure and personally authorized visas to hundreds of dubious Americans in connivance with Haqqani, an American stooge of a Pakistani Ambassador in Washington, bypassing the foreign office and the verification process.  Raymond Davis is apparently one such case.

Zardari’s Woes

Rising political temperature caused the government’s coalition partners to distance themselves from Zardari for fear of public backlash. Then there was a hostile media coupled with rightist-led nationwide rallies, which had the potential of getting out of hand, which demanded Davis’s trial.

The Americans showed poor understanding of Pakistan’s ground realities and of the limitations of Zardari government, who is seen as an American poodle. Condescending American attitude and information that Davis was neither a diplomat nor entitled to immunity, evoked hostile response across the country. All this unnerved Zaradri.

In the middle of this debate, the situation took another dramatic turn when the 18-year old widow of one of the slain persons committed suicide because she saw no chance of getting justice and every chance of this American getting away with murder. Her last words on her death bed were: “I want justice done. I want blood for blood”.

This left Zardari and his ilk with no choice but to perforce abandon their earlier position on immunity and, denying that they were under American pressure, publicly took the stand that Davis’s case is for the courts to decide. But the foreign office still not publicly stated the correct position on the immunity issue, in the hope that some way would eventually be found to oblige the US.    

Is There A Way Out?

Currently there is an impasse. The people would not accept any compromise. The Americans now need to act more sensibly and back off to let the temperature cool down. Threats would further worsen an already bad situation. John Kerry, a more seasoned and soft spoken politician, has already been here offering belated condolences and expressing remorse at the loss of life, but has had no success.

Suggestions have been floated that the provision in Pakistani law — blood money in exchange for pardon by the family, could be explored though this has already been rejected by the family which is also under pressure to stand firm on Davis’s prosecution. The president also has the powers to grant pardon to a convict, but only after the whole process of law has taken its course. Nothing can be achieved in a hurry. The Americans overplayed their cards and now need to show patience, whatever the cost.