The Case of Raymond Davis: International Law Perspective
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