Thursday, February 24, 2011

The Vienna convention and Raymond Davis

Blackwater Worldwide's new company logo--refer...Image via Wikipedia
I am glad to see the New York Times has finally started to report on Raymond Davis, the American mercenary who shot and killed two youth in Lahore, Pakistan, after misreporting for weeks.

The US has backtracked after first identifying Mr. Davis as a technical officer affiliated with the US Consulate in Lahore. Now the US Government insists that Mr. Davis was attached to the embassy in Islamabad. The change in Mr. Davis' status is warranted by the fact that as an employee of the US Consulate, Mr. Davis would not be eligible for diplomatic immunity.

Consider Article 41 of the Vienna Convention on Consular Relations (1963). In Section II of the treaty, Article 41 focuses on Personal inviolability of consular officers. Part 1 of Article 41 reads:

“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.”


Murder is a grave crime. It is up to the competent judicial authority (Punjab High Court) to determine what truly transpired. If Mr. Davis truly acted in self defense, he should plead his case in the court of law.

Xe Training facility in San Diego, California
But the reality is that Mr. Davis was not even a CIA employee. Mr. Davis, who is a former member of the US Armed Forces and has reportedly worked for the notorious Blackwater, now Xe Services LLC . He was in Pakistan on a contract representing his own company, Hyperion-Protective Consultants LLC, whose address is listed as 5100 North Lane, Orlando, Florida. The address is also a cover-up because the leasing agent of the mall/office complex occupies that address. Furthermore, Pakistani newspapers have reported that Mr. Davis was stationed in Peshawar with the US Consulate for most of his stay in Pakistan.

The fact that the US government lied about his status in applying for his Visa should be a significant concern for the employees of the US State Department. This has put American foreign service employees in a bind because now even genuine US diplomats would now have to prove their bonafides.

Furthermore, what really needs to be debated in the international law is the legality of obtaining fraudulent visas. An individual not part of the US diplomatic core, or its armed forces, or its intelligence agencies, cannot and should not be carrying a diplomatic passport. The Vienna Convention, to the best of my understanding, covers only government employees, and not loosely attached contractors, mercenaries, and others.

There is also the grave concern about Mr. Davis' safety in Pakistan. Short of any other unexpected revelation, his acts could most likely be categorized as manslaughter, which is subject to section 307 of the Pakistan Penal code, rather than section 302, which carries death penalty. Even if he is trailed and convicted in Pakistan, it is highly unlikely that he be awarded capital punishment. Thus, it becomes Pakistan’s responsibility to prevent any harm to his person before and after the trial. One option could be that, if found guilty, he may serve his sentence in the United States, rather than in a prison in Pakistan.

I think it is not hard to imagine what the US government’s stance would have been if an ISI (Pakistan’s intelligence agency) agent on a diplomatic passport from Pakistan were accused of murdering two civilians or muggers in Soho, New York. The US government would have most likely declined immunity to an ISI operative?
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