Davis must face justice - Asif Ezdi - Monday, March 07, 2011

Source : http://thenews.com.pk/TodaysPrintDetail.aspx?ID=34830&Cat=9

At the hearing of the Raymond Davis case on February17, the Chief Justice of the Lahore High Court adjourned the case till March 14 to give the federal government more time to file a reply on the question of diplomatic immunity. Again, while hearing an application in connection with the case on March 2, the court observed that it is for the federal government to decide whether Davis enjoys diplomatic immunity.

Yet the government continues to evade the issue. It is not clear what it hopes to gain by this dithering. The only thing that is certain is that the Zardari government has been feverishly trying for a deal with Washington under which Davis could be released in return for some “concession” which could make the arrangement palatable to an outraged Pakistani public. Not so well-known is the fact that in its keenness to reassure Washington of its “pro-American” credentials, the PML-N is also prepared to cooperate in finding a way of returning Davis to the US in return for some cosmetic concessions by Washington. This is confirmed by an ABC News report on February 28 that according to Pakistani officials in both Lahore and Islamabad, Davis’s release was a “matter of time”, and that the Pakistan government was waiting for the public furore over the case to wane before releasing him.

It is no secret that in the wake of the Kerry visit, intensive contacts have been taking place between the two countries, especially through their military and the intelligence establishments, to work out an arrangement for the release of Davis. The issue was discussed thoroughly at Kayani’s meeting with Mullen in Oman on February 23. The Oman meeting has been followed by telephonic contacts between CIA Director Panetta and ISI chief Pasha.

The government first offered to release Davis, if Aafia Siddiqui was transferred to Pakistan to serve her sentence here. But this proposal was immediately shot down by the White House. The two sides are now trying to work out an arrangement for the release of Davis in return for the payment of blood money. This is precisely the fear that had pushed Shumaila Kanwal, wife of one of the victims of Davis’ shooting, to suicide. But our rulers are more concerned about currying favour with Washington.

Some of the details of the negotiations being held with Washington, which were divulged by The Washington Post on March 2, are also worrisome. The government has to explain why it is contemplating involving the Saudi or UAE government as an intermediary, as that newspaper reported. The government must also explain why it has permitted the ISI to take charge of this matter.

ISI should confine itself to questions of intelligence cooperation alone. Not only that, a senior ISI official has been sending emails to The Washington Post on the progress of negotiations on the Davis case. That is certainly no part of ISI turf and should stop immediately. One of these emails expresses the Pakistani desire to be regarded as partners, rather than subordinates. “We need to be treated with trust, equality and respect,” it says. This is a legitimate wish. But this wish will be fulfilled not through entreaties but only if we conduct ourselves with dignity and self-respect. We should start by refusing to make any shabby deals in the Davis case.

We have a strong case under international law and should not make any compromise on this point. At a background briefing on February 21, an unnamed “senior administration official” gave the first detailed presentation of the US legal position. His main point was that since Davis had been duly notified on January 10, 2010 as a member of the embassy’s administrative and technical staff, he had acquired full immunity from criminal prosecution.

However, he conveniently omitted saying that any immunity conferred by such a notification ends on “termination of functions with the mission”. Since Davis was not included in the list of embassy staff sent on 25 January 2011, it can only mean that his functions at the mission – and with it whatever immunity he claims under the earlier notification – stood terminated on the date this list was sent, meaning two days before the incident.

I raised this point on March 2 in a discussion of the Davis case with John Bellinger, a leading US expert on international law, on a private TV channel. Bellinger’s credentials are impeccable. He served as legal adviser at the State Department under Condoleezza Rice from 2005-2009. Not surprisingly, Bellinger maintained that Davis’ diplomatic immunity had not been affected by the omission of his name from the January 2011 list. He gave two reasons: first, that the omission was an inadvertent mistake; and, second, that the original notification of Davis was “official” while the omission of his name was “unofficial.”

Both these contentions are difficult to accept. First, if the omission of Davis’ name was a mistake, he would not have been described as a consular employee by the State Department (January 27) and by the embassy (January 28). Second, both the original notification on Davis and the omission of his name were made in formal communications (notes verbales) of the embassy. Therefore, both have the same “official” character.

Not all American experts share the view that Davis has immunity. Ron Mlotek, a specialist on diplomatic law who served as legal counsel at the State Department dealing with such issues, has said that the American position is very convoluted and appears to be based on “legal smoke and mirrors”.

The US case is weak but it is being very forcefully articulated. Our case is strong but the Zardari government is shying away from presenting it to the world in order not to “anger” Washington. The senior US official who gave a briefing on February 21 was asked what Pakistan had to say to the US stand. His reply was that he had not seen the Pakistani counter-argument. He was not the only one. No one knows precisely what the Pakistani position is, apart from the fact, as declared by Gilani, that there is a “difference of opinion” between the two countries because of “ambiguity and inconsistency that is reflected in the available record”.

Clearly, Pakistan needs to declare forthrightly and unambiguously that Pakistan does not recognise Davis as a member of the embassy staff. Not only that, the government must also present its detailed case under the Vienna Convention on Diplomatic Relations (VCDR), as the US has done. This can be done in a “background briefing”, as the State Department did, so that it may not bind us in any legal proceedings.

The US is right, however, that the question of diplomatic immunity cannot be resolved by the national courts of either country. Pakistan must therefore take the matter to the International Court of Justice. By signing the Optional Protocol under the VCDR, the US accepted the jurisdiction of the ICJ for disputes under the Convention. As reported by the press, the US has withdrawn from the ICJ’s jurisdiction for disputes under the Vienna Convention on Consular Relations (VCCR). But since the US claim is based on the VCDR, it would not affect the ICJ’s jurisdiction in the Davis case.

Bellinger argued against taking the matter to the ICJ as this would be a prolonged process taking a year or more. However, this does not have to be the case. The Iranian hostages’ case, which the US took to the ICJ in November 1979, was decided in May 1980 – in only six months.

We have a good chance of winning the case in the ICJ and vindicating our stand. There is also another reason why we must refer it to the ICJ. If we want Davis to be exchanged against Aafia, we must first obtain an ICJ judgement. If he is then convicted by our courts, the Americans will surely listen to any proposals for a swap. But not before that.

The writer is a former member of the Pakistan Foreign Service. Email: asifezdi@yahoo.com

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