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The Case of Raymond Davis: International Law Perspective

January 29, 2011

On January 27th an American national Raymond Davis, who identified himself as a diplomat, shot and killed two Pakistani civilians on a busy road in Lahore while the third person got killed when a separate car rushed to rescue Davis. That car couldn’t be intercepted, however, after the shooting people held Davis when he tried to escape.

Initially, the media reports dubbed Raymond Davis as a diplomat, than he was called a consular employee and later some of the reports claimed he was a plain civilian visiting on a business visa. The US Department of State didn’t divulge much either. When on the day of incident the Assistant Secretary of State, Philip J. Crowley, was asked about the incident, he refused to share much information about the identity except that he called him an employee at the U.S. Consulate in Lahore.

After initial investigation by the Lahore police, Davis was remanded for six days in police custody. This development triggered the debate that whether Davis had the diplomatic immunity as expounded in the Vienna Convention on Diplomatic Relations. It is a multilateral treaty that governs the principles of diplomatic relations between the independent countries. According to various news reports it is confirmed that Davis doesn’t fall in the category of a diplomat. 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.

Davis was said to be a member of the consular staff, if so, than there is a separate multilateral treaty called the Vienna Convention on the Consular Relations which deals with the consular relations between the countries. Unlike Vienna Convention on Diplomatic Relations the Convention on Consular Relations doesn’t provide complete immunity to consular. The consular immunity under the Convention is limited to the course of his duty only. Many claimed that at the time of 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 very 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 from mission to attend a cultural function hence he was performing a ‘consular function’.

It is yet to be determined that whether Davis was actually performing the ‘consular function’ at the time of the crime or was on a private business.

About consular immunity from criminal jurisdiction Article 41 Section 1 of the Vienna Convention on the Consular Relations states that:

‘Consular officer shall not be liable to arrest or detention pending trial, except in the case of a grave crime…’

‘Grave crime’ again is an expansive term. Although any reasonable person can conclude that there is nothing graver than taking someone’s life but there are certain exceptions such as self defense which Davis claimed. The Pakistan Penal Code sections 96-106 deals with the issue of self defense. Section 100 mentions cases in which the right of 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:-

First: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault…’

Under Section 100 Davis can have 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 as to why a consular officer was carrying a gun. Diplomat is allowed to carry a gun only when the host country exclusively allow. The other question raising issue is that why Davis’ identity or his job status wasn’t released earlier. According to the latest press release the U.S. claimed that Davis had the diplomatic status hence he was immune from the local jurisdiction.

The local media, on the other hand, is throwing its own conspiracy theories from time to time since the facts about Davis’ real status are quite murky. It is, however, 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 they get away under the cover of diplomatic immunity. If the US claims a 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.

Edited version on: The Express Tribune

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9 Comments leave one →
  1. January 30, 2011 7:32 am

    I am surprised that you completely ignore the THIRD death and the injuries inflicted on some dozen innocent persons when a rescue vehicle drove recklessly into the crowd. WHO WAS THE DRIVER OF THIS SECOND VEHICLE? Why has he not been named?

    It is very annoying to read reports which refuse to consider the full ramifications of an incident.

    • January 30, 2011 10:51 am

      You are asking me a factual question as to who was the driver of a third car. It is for investigators to determine. Apparently it seems third person wasn’t hit by Davis’ car so I didn’t mention it.

      I gave a broad overview of Davis’ case (only) as to what usually happens when a ‘diplomat’ or ‘consular employee’ gets involved in a serious crime in the receiving country.

      Yet the facts of this case are quite twisted. From the real status of Davis – which by the way is crucial for this case – because if he is even a consular level employee he can’t claim immunity for killings; to a question whether the action of self defense was proportionate or was it actually self defense etc. are not very clear.

  2. January 30, 2011 4:11 pm

    So far as I can see, Davis is just one part of the story which is unfolding. The Americans seem to have organised a Rambo-like rescue act, which failed to save Davis but did crush to death a Lahori while wounding a dozen others. There is something very fishy about the whole affair.

    It seems pointless to go on. The duplicity and dishonesty of the USA governments and their diplomats appear to be boundless. Probably they will manage to whisk away both murderers, with a wink and a nod from their factotums in the Pakistani government. Following the WikiLeaks revelations, I wrote:
    “The evil scenario that emerges is one of the USA government, and its diplomatic missions abroad, being enmeshed in an intricate worldwide web of intrigue and conspiracy, the full extent of which few had suspected”. You can read the full post here:

    http://sakibahmad.blogspot.com/2011/01/end-of-conspiracy-theories.html

    This is actually a continuation of the immediately preceding blog post, “Anne Patterson, Queen of Pakistan”, which you may also want to read.

  3. Hegemon permalink
    January 30, 2011 8:54 pm

    He is obviously one of those secret CIA guys that help the Paki Secret Service identify and kill suspected AQ members. That’s why he was armed. He may have been following a suspect at the time. They shouldn’t let those guys drive around in 60K dollar SUV’s. It’s just asking for trouble. Those 2 that died were either common criminals or maybe protection for the AQ ‘high value’ target that was under suspicion. One way or the other they won’t be trying anything like that ever again.

  4. Shaheen permalink
    February 17, 2011 11:22 am

    It is now very much clear that Mr. Davis is not a diplomat. When his passport was submitted to Pakistan embassy in USA, he was not declared member of diplomatic mission. So he is not authorizes for any immunity. Furthermore, Viena convention 1961 does not give licence to kill. What viena convention actually means is that the host country should not tease the diplomats under the cover of any crime against the host country. The persons who were cruelly murdered never allowed him to kill them.
    He has committed murder of two persons directly and two persons indirectly. As a matter of justice he must be punished for his crime. Being an American does not give him licence to kill. Things recovered from him indicate that he was on some criminal mission.

    • February 17, 2011 3:06 pm

      Generally speaking, Vienna Convention on the Diplomatic Relations does provide blanket immunity from criminal and civil jurisdiction of the host state. It is a customary Int. law that every state is expected to honor. The host state can request the wavier of immunity which the sending state may or may accept.

  5. February 24, 2011 9:28 am

    I’m glad to find your blog Ayesha. I have yet to have a detailed discussion with someone or as many on the Raymond Davis case and discuss the case only in accordance with the LAW. I’m finding it hard to decipher the legal rights and obligations and challenges from all this explosion of emotionally charged articles appearing in the news.

    In my mind, though I’m not a lawyer, the questions which clearly need to be answered, whether he’s a diplomat who enjoys full immunity? Or he’s a consular staff member who enjoys limited immunity? Or he simply came on a business visa, therefore, does not enjoy any immunity at all? If he has any diplomatic immunity, was he certified/notified to that effect before the incident, or is the claim of immunity coming after the incident? If the host govt. has any discretion to retroactively certify the diplomatic status, then isn’t that discretion unconstitutional? Regardless of all of the above, doesn’t the family of the victim deserve justice above all geneva conventions? In my mind, these are all legal questions which should be addressed in the courts.

    My only complaint with the Media, and especially Pakistani media, is why are we not talking about the LAW? We must talk about the LAW and follow the LAW in its entirety.

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