In calling a CIA contractor of the Blackwater/Xe variety discharging no diplomatic duties and responsible for killing two Pakistani citizens pointblank, “our diplomat in Pakistan,” the US President was certainly disingenuous, if not deceitful. Even more shameful has been the unionised agreement of mainstream US media not to disclose the truth about Davis, while being aware of it, at the Obama administration’s request. Do the New York Times and the Washington Post owe it to the US administration to manipulate facts and give effect to the official US national security doctrine, or do they primarily owe allegiance to the truth?
The Raymond Davis affair, and the response it has elicited from the US and Pakistani governments as well as the media, exposes the frozen mindsets our states and societies remain mired in. What we are witnessing is megalomania dressed as patriotism. Through its handling of the Davis case, the US has reiterated its selective adherence to rule of law and the concept of sovereign equality that backs the doctrine of diplomatic immunity. Starting with the US president and secretary of state, US officials have made no bones about their willingness to use all other means fair or foul – from threats and manipulation of facts to financial incentives – to get their way on the Davis issue.
The trappings of power are incredibly intoxicating, even more so in the Third World where the ordinary Joe seems awed by authority. The paramount incentive to acquire power, for the neighborhood ruffian as well as those in the highest echelons, is to possess the ability to flout law and due process. And the inability of the powerful to get their way, whether right or wrong, makes them mad. In Pakistan, we understand this sentiment well. While we hate those who can flout their muscle and rise above the law, we secretly wish for similar preferential treatment so long as anyone else is getting it. We want rule of law. But till we get it in an unadulterated form, we want to be part of the crowd that can flout it. But such duplicity doesn’t make us comfortable with the powerful rubbing the noses of lesser humans in dirt. It makes us angry.
We are angry at our own elites putting the rest of us down, but interestingly, even more so at western powers treating our elites as poodles. We forget to attribute responsibility to our own who are willingly auctioning their souls to the devil. Our sense of disempowerment convinces us that our elites, when in power, have no option but to sell out. There is a sense that none of us are free agents with a will to make choices, but pigmies who don’t even possess the ability to comprehend our own manipulation at the hands of others. Feeble self-esteem coupled with an unshaken belief in the omnipotence attributed to the US disables us from apportioning blame proportionately and judiciously when it comes to Pakistani elites working hand-in-glove with US administrations to promote their self-interest and US state agenda. Many of us then call such lack of objectivity nationalism.
Being a CIA agent doesn’t disable Davis from claiming diplomatic immunity. The law on the issue is clear. The primary question that needs to be answered is whether, as a US representative, Davis was covered under the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations. The former provides immunity to members of the diplomatic mission, including administrative and technical staff, against criminal prosecution. The latter provides general immunity, but not “in the case of a grave crime pursuant to a decision by the competent judicial authority”. The legal status of Davis as a member of the US diplomatic mission in Pakistan or a Consulate-General rests on what was stated in the notification issued by the US to Pakistan’s foreign office in regard to Davis prior to the shootings in Lahore.
Both conventions rely on this notification. Whether Davis’ passport is a diplomatic or a regular one or whether his Pakistani visa reads official or business are ancillary details. A foreign official is clothed with immunity at the time that the sending state issues a notification that the receiving state accepts without objection. The US cannot confer immunity on Davis by notifying him as a member of the diplomatic mission ex post facto. And Pakistan cannot denude him of immunity that he otherwise enjoyed in accordance with any notification issued by the US regarding his status prior to the shootings. The outcome of the immunity debate thus rests on facts and will have to be determined by the courts in Pakistan. But the judiciousness of such outcome will depend on the ability of the Pakistani state to present unadulterated facts to the court.
Johan Galtung posited the structural theory of imperialism almost half a century back to explain the tremendous inequality within and between nations. At the risk of simplifying (with apologies to Galtung), he saw the world as well as each nation divided into a center and a periphery with the center comprising elites and ordinary people forming the periphery. He argued that imperialism is a structural relationship whereby the center in the dominating nation works in concert with the center in the dominated nation for the mutual benefit of the both. This creates a vertical relationship between the dominating nation and the dominated nation together with a conflict of interest between the center and the periphery of the dominated nation.
In other words, structured domination rests on the alliance between elites or power wielders in the Third World with elites or power wielders of a superpower to serve the interests of both elites and the interests of the superpower at the expense of ordinary people in the Third World. The theory helps explain the historically cozy relationship between the Pakistani political and military elites and successive US administrations on the one hand and growing anti-American sentiment on the streets of Pakistan on the other. Does the Raymond Davis case suggest that Galtung’s world is now changing with multiple centers of power and elites emerging within the dominated states like Pakistan – such as an independent media and a reformist judiciary – not amenable to be wooed into a relationship of structural dependence by global powers?
Or is the Raymond Davis case a mere aberration – a consequence of a temporary turf war between the elites in the center and the periphery (the ISI and the CIA in this case)? What if Raymond Davis had the exact same legal status and had killed the two Pakistanis just the way he did, but the CIA had kept the ISI informed about his real identity and scope of work? Would he still be arrested and tried for murder? Would the federal government have dithered in granting immunity if the ISI and the Khakis weren’t breathing down its neck? Is this really about rule of law and the value of Pakistani life or a nasty ego feud between faceless elites in the US and Pakistan?
One fears it is the latter because the US still illegally controls airstrips in Pakistan and conducts predator strikes that claim Pakistani lives more indiscriminately than the Lahore shooting. And while parliament cries hoarse over drone attacks, there is no parliamentary or judicial inquiry into who authorises them or why they continue. Now that the failure of the US and Pakistani elites to preserve their harmony of interest on the Davis affair has flagged the issue, we need to ask ourselves critical questions about the nature of the relationship between the US and Pakistani elites and insist on revisiting our concepts of national security, patriotism and strategic partnership such that they serve the interests of the ordinary Pakistani squeezed into the periphery.
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
The Raymond Davis affair, and the response it has elicited from the US and Pakistani governments as well as the media, exposes the frozen mindsets our states and societies remain mired in. What we are witnessing is megalomania dressed as patriotism. Through its handling of the Davis case, the US has reiterated its selective adherence to rule of law and the concept of sovereign equality that backs the doctrine of diplomatic immunity. Starting with the US president and secretary of state, US officials have made no bones about their willingness to use all other means fair or foul – from threats and manipulation of facts to financial incentives – to get their way on the Davis issue.
The trappings of power are incredibly intoxicating, even more so in the Third World where the ordinary Joe seems awed by authority. The paramount incentive to acquire power, for the neighborhood ruffian as well as those in the highest echelons, is to possess the ability to flout law and due process. And the inability of the powerful to get their way, whether right or wrong, makes them mad. In Pakistan, we understand this sentiment well. While we hate those who can flout their muscle and rise above the law, we secretly wish for similar preferential treatment so long as anyone else is getting it. We want rule of law. But till we get it in an unadulterated form, we want to be part of the crowd that can flout it. But such duplicity doesn’t make us comfortable with the powerful rubbing the noses of lesser humans in dirt. It makes us angry.
We are angry at our own elites putting the rest of us down, but interestingly, even more so at western powers treating our elites as poodles. We forget to attribute responsibility to our own who are willingly auctioning their souls to the devil. Our sense of disempowerment convinces us that our elites, when in power, have no option but to sell out. There is a sense that none of us are free agents with a will to make choices, but pigmies who don’t even possess the ability to comprehend our own manipulation at the hands of others. Feeble self-esteem coupled with an unshaken belief in the omnipotence attributed to the US disables us from apportioning blame proportionately and judiciously when it comes to Pakistani elites working hand-in-glove with US administrations to promote their self-interest and US state agenda. Many of us then call such lack of objectivity nationalism.
Being a CIA agent doesn’t disable Davis from claiming diplomatic immunity. The law on the issue is clear. The primary question that needs to be answered is whether, as a US representative, Davis was covered under the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations. The former provides immunity to members of the diplomatic mission, including administrative and technical staff, against criminal prosecution. The latter provides general immunity, but not “in the case of a grave crime pursuant to a decision by the competent judicial authority”. The legal status of Davis as a member of the US diplomatic mission in Pakistan or a Consulate-General rests on what was stated in the notification issued by the US to Pakistan’s foreign office in regard to Davis prior to the shootings in Lahore.
Both conventions rely on this notification. Whether Davis’ passport is a diplomatic or a regular one or whether his Pakistani visa reads official or business are ancillary details. A foreign official is clothed with immunity at the time that the sending state issues a notification that the receiving state accepts without objection. The US cannot confer immunity on Davis by notifying him as a member of the diplomatic mission ex post facto. And Pakistan cannot denude him of immunity that he otherwise enjoyed in accordance with any notification issued by the US regarding his status prior to the shootings. The outcome of the immunity debate thus rests on facts and will have to be determined by the courts in Pakistan. But the judiciousness of such outcome will depend on the ability of the Pakistani state to present unadulterated facts to the court.
Johan Galtung posited the structural theory of imperialism almost half a century back to explain the tremendous inequality within and between nations. At the risk of simplifying (with apologies to Galtung), he saw the world as well as each nation divided into a center and a periphery with the center comprising elites and ordinary people forming the periphery. He argued that imperialism is a structural relationship whereby the center in the dominating nation works in concert with the center in the dominated nation for the mutual benefit of the both. This creates a vertical relationship between the dominating nation and the dominated nation together with a conflict of interest between the center and the periphery of the dominated nation.
In other words, structured domination rests on the alliance between elites or power wielders in the Third World with elites or power wielders of a superpower to serve the interests of both elites and the interests of the superpower at the expense of ordinary people in the Third World. The theory helps explain the historically cozy relationship between the Pakistani political and military elites and successive US administrations on the one hand and growing anti-American sentiment on the streets of Pakistan on the other. Does the Raymond Davis case suggest that Galtung’s world is now changing with multiple centers of power and elites emerging within the dominated states like Pakistan – such as an independent media and a reformist judiciary – not amenable to be wooed into a relationship of structural dependence by global powers?
Or is the Raymond Davis case a mere aberration – a consequence of a temporary turf war between the elites in the center and the periphery (the ISI and the CIA in this case)? What if Raymond Davis had the exact same legal status and had killed the two Pakistanis just the way he did, but the CIA had kept the ISI informed about his real identity and scope of work? Would he still be arrested and tried for murder? Would the federal government have dithered in granting immunity if the ISI and the Khakis weren’t breathing down its neck? Is this really about rule of law and the value of Pakistani life or a nasty ego feud between faceless elites in the US and Pakistan?
One fears it is the latter because the US still illegally controls airstrips in Pakistan and conducts predator strikes that claim Pakistani lives more indiscriminately than the Lahore shooting. And while parliament cries hoarse over drone attacks, there is no parliamentary or judicial inquiry into who authorises them or why they continue. Now that the failure of the US and Pakistani elites to preserve their harmony of interest on the Davis affair has flagged the issue, we need to ask ourselves critical questions about the nature of the relationship between the US and Pakistani elites and insist on revisiting our concepts of national security, patriotism and strategic partnership such that they serve the interests of the ordinary Pakistani squeezed into the periphery.
The writer is a lawyer based in Islamabad. Email: sattar@post.harvard.edu
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