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The core of the dispute with Pakistan about Raymond Davis (let’s understand it before it sparks fires with Pakistan)

25 February 2011

Summary:  The fog spewed by America’s geopolitical experts (mostly faithful lapdogs for the US government, abetted by the lackeys of the news media), has obscured the core dispute between the US and Pakistani governments.  Was Davis an embassy employee?  That’s the question.  If he was just a consular employee he had a minimal level of immunity.  It’s a simple question, although impossible for outsiders to answer.  This is the third in this series (see other links at the end).

Global wars are won by alliances.  The Davis affair has angered many people in Pakistan, seen as yet another US insult to their sovergenty.  Whatever Davis was doing in Pakistan, its strategic cost might be high.

Understanding the situation begins with the facts.  Neither government has been helpful; here we examine the various stories.  The US government provided several stories, but giving no supporting evidence.  The Pakistani government, probably hoping this nightmare ends soon, has done rebuttal by leak (while its government churns).  Conflicting assertions, where loyalists believe the home team story — and refuse to see the other side.

The first US announcement said Davis was a consular employee (matching the ID he carried):   Embassy Statement Regarding Lahore Incident, US State Department (Islamabad), 28 January 2011:

A staff member of the U.S. Consulate General in Lahore was involved in an incident yesterday that regrettably resulted in the loss of life. The U.S. Embassy is working with Pakistani authorities to determine the facts and work toward a resolution.

Realizing that this meant no criminal immunity for Davis, eventually a new story emerged.  As in this “background briefing” teleconference by the State Department on 21 February.  Excerpt (red emphasis added):

We still believe earnestly that Mr. Davis is a member of the administrative and technical staff of the Embassy in Islamabad and is entitled to full immunity from criminal prosecution and should not be arrested or detained. And we will continue to work with Pakistan to resolve any differences that we have on this issue.

With that, I thought we’d bring in one of our foremost experts in international law just to kind of go through this issue with you. It is a background call attributable to a Senior Administration Official. For your knowledge, it’s [name redacted from transcript].

… First, on January 20th, 2010, the U.S. Embassy in Islamabad notified Mr. Davis as a member of the administrative and technical staff under the Vienna Convention on Diplomatic Relations. That’s a treaty to which both the U.S. and Pakistan are parties without reservation, along with 185 other countries. From that point, he enjoyed the status as a member of the staff of the mission. He enjoyed privileges and immunities against local criminal law, including inviolability of person, inviolability from arrest and detention, immunity from criminal jurisdiction.

… When people come into post, we send them a diplomatic note to the Ministry of Foreign Affairs and we describe someone as head of mission, a member of the diplomatic staff, or a member of the staff of the diplomatic mission. And he was notified as a member of the administrative and technical staff of American Embassy Islamabad. That was on January 20th, 2010.

… the relevant notification is the one shortly after he arrived, January 20th, 2010, a diplomatic note, which I think has been shown to the press, which says we have the honor to inform the Ministry of Foreign Affairs of the assignment of Mr. Davis, administrative and technical staff, American Embassy Islamabad.

But I find no mention of any journalists seeing this note, and nobody asked for it on the call.  Justin Elliott of Salon asked, and got this reply:

State Department spokeswoman Nicole Thompson tells me that the January 2010 diplomatic note regarding Davis will not be made publicly available. “We don’t release diplomatic communications,” she said.

So much for the government’s evidence.  Other sources tell a different story.  Glenn Kessler at the Washington Post (citing no source):

The U.S. embassy appears to have complicated matters by first sending a diplomatic note to the Pakistani Foreign Ministry on Jan. 27 describing Davis as “an employee of U.S. Consulate General Lahore and holder of a diplomatic passport.” A second note, on Feb. 3, described him as “a member of the administrative and technical staff of the U.S. embassy.”

More detail from “Davis was not a diplomat when he killed“, The News International (Pakistan newspaper), 18 February 2011 — Excerpt:

The US Embassy documents as provided to the Government of Pakistan expose the US case of Raymond Davis, whose name was missing in the January 25, 2011 list of pending cases but got inserted in the revised list sent to the Government of Pakistan on January 28, a day after he killed two Pakistanis in cold blooded manner.

Documentary evidence reveals that the US Embassy in Islamabad on January 25th forwarded 48 names of its employees, both diplomats and non-diplomats, to the Ministry of Foreign Affairs for the issuance of relevant diplomatic identity card by the latter. This list of 48 employees did not include the name of double murderer Raymond Davis. According to the documents, the list of 25th January included the following names: …

Three days later, on Jan 28, a day after Davis killed two Pakistani young men in Lahore, the US Embassy re-sent the revised list of pending cases. This list included the name of Raymond Davis at No 5. The revised list included these names: …

Why is this important?

The US State Department explains the importance of this question in their publication Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities“.  Consular officers have little immunity.  Excerpt (red emphasis added:

Members of Consular Posts

Countries have long recognized the importance of consular functions to their overall relations, but consular personnel generally do not have the principal role of providing communication between the two countries-that function is performed by diplomatic agents at embassies in capitals. The 1963 Vienna Convention on Consular Relations grants a very limited level of privileges and immunities to consular personnel assigned to consulates that are located outside capitals.

There is a common misunderstanding that consular personnel have diplomatic status and are entitled to diplomatic immunity.

Consular Officers.

Consular officers are those members of consular posts who are recognized by both the sending and the host country as fully authorized to perform the broad array of formal consular functions. They have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court).5

… As indicated, official acts immunity pertains in numerous different circumstances. No law enforcement officer, State Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed.

Consular Employees.

Consular employees perform the administrative and technical support services for the consular post. They have no personal inviolability, only official acts immunity, and enjoy immunity from the obligation to provide evidence as witnesses only in respect of official acts. …

Other posts about the Davis affair

  1. The Raymond Davis incident shows that we’re often ignorant because we rely on the US news media.  There is a solution., 18 February 2011
  2. How to lose an ally: updates on the Raymond Davis affair, 20 February 2011
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