Diplomatic Immunity and the Raymond Davis Case

The shooting to death of two Pakistani youths, namely Faizan Haider and Muhammad Faheem, by a U.S. Consulate official, Raymond Allen Davis, and the death of a third Pakistani, namely Obaid-ur-Rahman, by a vehicle operated by the U.S. Consulate, in Lahore on 27 January 2011 has, once again, raised concerns relating to the conduct of American officials working for the U.S. Embassy and Consulates in Pakistan.

Raymond Davis was arrested by the Punjab Police on the same day and, on 28 January 2011, was presented before a magistrate in Lahore, who remanded him into police custody for six days. On 29 January 2011, three days after the incident, the U.S. Embassy in Islamabad, without even naming Raymond Davis, called for his release whilst claiming that he was a diplomat and was being detained illegally in violation of the Vienna Convention on Diplomatic Relations, 1961 (the “Vienna Diplomatic Convention”). On 1 February 2011, the Lahore High Court, in response to a public interest petition, restrained Pakistani authorities from handing Raymond Davis over to the U.S. authorities and has ordered his name to be placed on the Exit Control List to prevent him from leaving Pakistan.

It may be pertinent to note that the U.S. Embassy’s press release of 29 January 2011 makes the following, rather surprising, claim:

“On January 27, the diplomat acted in self-defense when confronted by two armed men on motorcycles. The diplomat had every reason to believe that the armed men meant him bodily harm. Minutes earlier, the two men, who had criminal backgrounds, had robbed money and valuables at gunpoint from a Pakistani citizen in the same area.”

One wonders the basis on which the U.S. Embassy is claiming that two of the deceased had criminal backgrounds or had committed any crime. The deceased have not been found guilty of the offence alleged by the U.S. Embassy, either by the investigating police authorities or by any court of law. In making such an unwarranted claim, which is against diplomatic norms and also amounts to unlawful interference in a legal process of a host state in violation of Article 41(1) of the Vienna Diplomatic Convention, the U.S. Embassy has clearly overstepped its bounds.

The press release goes on to say:

“When detained, the U.S. diplomat identified himself to police as a diplomat and repeatedly requested immunity under the Vienna Convention on Diplomatic Relations. Local police and senior authorities failed to observe their legal obligation to verify his status with either the U.S. Consulate General in Lahore or the U.S. Embassy in Islamabad. Furthermore, the diplomat was formally arrested and remanded into custody, which is a violation of international norms and the Vienna [Diplomatic] Convention, to which Pakistan is a signatory.”

It seems that the U.S. Embassy is unaware that when a foreigner is arrested and claims diplomatic immunity, it is not the legal responsibility of the arresting authority, in this case the Punjab Police, to ascertain his diplomatic status; it is the responsibility of the arrested person and his embassy or consulate to establish his diplomatic credentials and the same cannot achieved by orally boasting of diplomatic immunity without any documentary proof. The Vienna Diplomatic Convention does not require states to assume that every foreigner is a diplomat. It is the responsibility of all diplomats to carry on their persons, at all times, their diplomatic identity cards, which are issued by the Foreign Ministry of the host state and to produce the same on demand when required by any government authority, including law enforcement agencies such as the police. The U.S. Embassy has overlooked the fact that Mr. Raymond Davis was arrested from a non-diplomatic vehicle (with non-diplomatic registration plates) and he failed to produce any diplomatic identity card to establish his diplomatic credentials.

Also, the mere holding of a diplomatic passport does not confer diplomatic status on someone. Diplomatic status must be expressly recognized by the host state. For example, a foreign diplomat in India will not be a diplomat in Pakistan. He may visit Pakistan using a diplomatic passport, however, he will have no diplomatic immunity in Pakistan by virtue of his diplomatic passport because he is not a member of any diplomatic mission in Pakistan and has not been recognized as such by Pakistan. Recognition of diplomatic status is expressed through the issuance of a diplomatic identity card to a person by the host state, which, in the case of Raymond Davis, seems to be absent.

Earlier, the U.S. Embassy issued the following press release on 28 January 2011, a day after the arrest and detention of Raymond Davis:

“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.”

Clearly, there is an inconsistency in the U.S. Embassy’s presses releases of 28 January and 29 January. The U.S. Embassy did not raise the issue of diplomatic immunity a day after the arrest and, in fact, referred to Raymond Davis as being a “staff member of the U.S. Consulate, General in Lahore”. In other words: a consular officer. The U.S. Embassy’s press release of 28 January only reinforced the belief of the Punjab Police and the Punjab Government, and justifiably so, that Mr. Raymond Davis was not a diplomat but a “consular officer” and, as such, not immune from detention and prosecution.

Under the Vienna Convention on Consular Relations, 1963 (the “Vienna Consular Convention”), consular officers do not enjoy unfettered diplomatic immunity. Article 41 of the Vienna Consular Convention states:

“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.”

It is evident that shooting to death of two human beings constitutes “a grave crime” pursuant to the Vienna Consular Convention and Raymond David’s detention is pursuant to a judicial process, having been authorized by a competent judicial authority as per the Vienna Consular Convention.

What needs to be appreciated by the U.S. Embassy is that if a Pakistani national, shoots dead two Americans on the streets of New York using an unlicensed weapon whilst driving a non-diplomatic vehicle and is, subsequently, arrested by the New York police and claims diplomatic immunity without producing any diplomatic ID, will the New York police be bound to release him or keep him detention till such time that he or the Pakistani Consulate in New York establishes his diplomatic credentials? Clearly, the New York police will have the right to detain him till such time.

Therefore, in light of the aforesaid, the arrest of Raymond Davis by the Punjab Police was legal and not in violation of the Vienna Consular Convention or, for that matter, the Vienna Diplomatic Convention (both ratified by Pakistan in its Diplomatic and Consular Privileges Act, 1972). Furthermore, the continued detention of Raymond Davis is not a violation of the Vienna Diplomatic Convention till such time that it is proved that he is a diplomat.

The U.S. Embassy, until now, has failed to establish the diplomatic status of Raymond Davis. Indeed, the evidence so far is to the contrary. A local news channel has shown a letter written by the U.S. Embassy dated 20 January 2010 wherein it is informing Pakistan’s Foreign Ministry that Raymond Davis is a member of the Embassy’s “administrative and technical staff” and requesting for him the issuance of a “non-diplomatic ID” card. This letter clearly shows that the U.S. Embassy itself did not recognize Raymond Davis as a diplomat. It, therefore, seems that the U.S. Embassy’s 29 January 2011 press statement claiming that Raymond Davis is a diplomat is an afterthought intended to shield him from criminal prosecution.

No one should dispute the fact that diplomats are immune from criminal prosecution under the Vienna Diplomatic Convention (Article 31(1)). Even if we were to hypothetically assume, without admitting, that Raymond Davis is a diplomat, there are still options that can be exercised. The Vienna Diplomatic Convention clearly reveals its spirit when it states, in its preamble, that “the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” The Vienna Diplomatic Convention allows foreign states to (i) punish their own diplomats for committing crimes in host countries (Article 31(4)) or (ii) waive the diplomatic immunity of its diplomats so that they can be prosecuted by the host state (Article 32). Therefore, the host state may itself request the foreign state to waive the immunity of a diplomat so that it can prosecute such diplomat.

The Vienna Diplomatic Convention also contains a mechanism under which a diplomat can be stripped of his diplomatic status and immunity by the host state. The host state has the authority under Article 9 of the Vienna Diplomatic Convention to declare a diplomat as a persona non grata and, thereafter, under Article 43(b), to issue a notice to the foreign state’s embassy informing it that it refuses to recognize such person as a member of the foreign country’s diplomatic mission. Upon receipt of the notice under Article 43(b) by the foreign state’s embassy, the diplomat in question forthwith ceases to remain a diplomat and is automatically stripped of his diplomatic immunity. Therefore, even if it is established that Raymond Davis is a diplomat, the Government of Pakistan can strip him of his diplomatic status and immunity by, firstly, declaring him a persona non grata under Article 9 of the Vienna Diplomatic Convention and, thereafter, by issuing a notice under Article 43(b) of the Vienna Diplomatic Convention to the U.S. Embassy, Islamabad informing it therein that Pakistan refuses to recognize Raymond Davis as a member of the U.S. diplomatic mission.

Even if Pakistan does not take the above action, the U.S. can take the moral high ground and itself waive diplomatic immunity for Raymond Davis. There are precedents in this regard and one need not look beyond the manner in which the United States itself views diplomatic immunity. Though, in the case of Raymond Davis, who is a junior functionary, the U.S. Embassy is claiming diplomatic immunity for a person who shot dead two Pakistani youth using an unlicensed weapon, the U.S. itself demanded the lifting of immunity of a senior diplomat who accidently killed a U.S. citizen in a car accident on its soil.

In 1997, Gueorgui Makharadze, the Georgian Deputy Ambassador to the United States, accidently killed an American teenager in a road accident in Washington, D.C. The U.S. exerted extreme pressure on the Georgian government to lift his diplomatic immunity even though it was not a deliberate shoot-to-death killing, as in the case of Raymond Davis, but a car accident. The Georgian government finally relented “in the interests of U.S.-Georgian relations and on moral and ethical grounds.” Makharadze was tried in a U.S. court, found guilty of manslaughter and sentenced to 21 years in prison. While lifting Makharadze’s diplomatic immunity, then Georgian President Eduard Shevardnadze observed, “I cannot imagine diplomacy and politics devoid of moral principle.”

Even if Raymond Davis is a diplomat, wouldn’t it be prudent for the U.S. to follow little Georgia’s example and lift his diplomatic immunity in the interests of U.S.-Pakistan relations and on moral and ethical grounds. Or, perhaps, unlike Georgia, the United States of America sees diplomacy as being devoid of moral principles.

The writer, Rai Muhammad Saleh Azam is a High Court Advocate based in Lahore and a partner in the law firm Azam & Rai

This post was submitted by Rai Muhammad Saleh Azam.

37 thoughts on “Diplomatic Immunity and the Raymond Davis Case”

  1. F^%K the president of PAKISTAN,i dont have enough words for him as it encompasses the whole story behind.It aint the first time of injustice viewed by millions.

    God bless Pakistan & its lovers.

  2. I KNOW HE WILL GET AWAY PAKISTANI NATION LIVE FOR THEIRSELF.

    THEY SHOULD START HANGING SHOES AROUND THEIR NECK INSTEAD OF WEARING THEM.

  3. hmain b Afia ki bari aisa hi krna chahiye tha lakin afsos hm nay khud usy america k hawalay kia ab agr hm mei kuch insaniyat hoi to sari qoum mil k Afia ki azadi k liye koshish krain or is raymond devis ko tb tak arrest rukhain or waisa hi salook krain jo Afia k sath ho raha hai

  4. Well written Rai Sb,

    @ Dr Jawwad Khan: Egypt, Tunisia???? do u see. now don't tell me thesis leadership crisis. see in egypt this is a leaderless movement

  5. @ Shehzad!

    You shouldn't ignore the other factor who brought these people on the streets in first place.Husni mubarak is ruling since 30 years and Zainul abdeen governed on Tunis for 25 years.

    So why now? Because these countries didn't have genuine leadership or you can say that these dictators intentionally eliminate and crushed the process of emergence of a genuine leaders.

  6. ^^^^ Raymond Davis Case ^^^^^

    Guess what, due to this bastard, The victim FAHIM's wife commuted suicide and she passed away yesterday.

    now Guess what Raymond, just because of you, 4 people lost their lives! You tell me, you deserved DEATH or NOT.

    the answer is HANG HIM !!!!! as soon as possible in LAHORE !!!!!!!!!

  7. It can be predicted that in the eventuality of Davis not being released by the Pakistani authorities, he might be shot dead by a paid assassin while in custody. This will not only finish the matter, rather put Pakistan in an embarrassing position having failed to protect a US citizen…

  8. "The U.S. exerted extreme pressure on the Georgian government to lift his diplomatic immunity even though it was not a deliberate shoot-to-death killing, as in the case of Raymond Davis, but a car accident."

    The author misunderstands. If the diplomat had killed in self-defense that would be covered under diplomatic immunity; however, this guy was very drunk. It was personal, non-political, irresponsibility; there is no way this guy could have driven a car without unreasonable risk of committing manslaughter, either by American or Georgian standards. Since no possibility of innocent confusion existed, this sort of conduct was NOT covered under diplomatic immunity.

    1. @ Soloman2: I'm afraid you're wrong. Georgia's Deputy Ambassador was indeed covered by diplomatic immunity and his diplomatic immunity was expressly waived by Georgia at the repeated requests of President Clinton, that too, reluctantly because he was considered one of Georgia's star diplomats. Google it.

    1. According to Vienna Convention on Consular Relations on 24 April 1963, Pakistani police can arrest Raymond Davis because he had murdered two innocent Pakistani men.

  9. We must be ashamed. we are miserable people… we have no living standard , self respect and power to prove our self Right….. we just eat and sleep…… we must be ashamed .

  10. Why was this person fleeing the scene in the first place?

    Isn't fleeing the scene criminal in itself?

    Why are TOP lawyers supporting him?

    Does it mean that the Lawyers are BIKAOO?

  11. "Raymond Davis" isn't even correctly identified. It took a week for them to figure out there should be an article in his hometown paper that a local man was arrested for murder in Pakistan, and when it appeared in the Denver Post, there was enough info to show that he wasn't in the intelius.com database, which for an American is likely to be a sign that his identity is a fake. I tried names of various ordinary Americans I know on the site (I am an American) on the site and they were all in there with correct info. If he entered Pakistan with a false identity, he CANNOT have been accepted by Pakistan as a diplomat.

    1. Helen Davis

      Raymond is a Murderer, a con artist, and a liar. You can keep your money. Your money is used up by your imperial institutions themselves. It will be a good riddance to free ourselves of United Stated of Amnesia!

    2. The undeniable fact is the US money only serve the interests of the terrorist US regime not Pakistani people. It is the US regime that is terrorizing Iraq, Afghanistan and Pakistan so now we know that the US regime is the Nazi regime of the 21st century.

  12. What a bunch of nonsense. Raymond Davis is clearly and American employed by the U.S. Government in Pakistan pursuant to that employment. If the U.S. says he is to be accorded diplomatic immunity then end of story. If the U.S. had any kind of leadership all these little countries would begin to sit up and take notice of who rules the roost, and those that don't can suffer the consequences. We clearly need the affection of the Pakistani nation like we need another wart. The failure of the U.S. to deploy any nukes since 1945 has clearly cost us a lot of respect in the last 60+ years.

  13. Few simple questions:

    1. What would have the Americans done if any of our diplomats had committed two murders on the road in front of scores of people in Washington DC?

    2. Where in the world are the "diplomats" taught accurate firing techniques and trained with the best ammunition in the world? Where in the world are they trained to use accurate spycams and carry up linking equipment while on the move?

    3. Is there anyone in the USA please, who could tell us the real identity of this man? If the ID is fake, he cannot be granted any immunity under any law (as discussed by one of the commentators above)

    4. Where is the driver and the accomplices who killed the third innocent guy while trying to reach to Raymond's car from the wrong side of the road? Hiding in US consulate? Great that the Americans hire drivers as diplomats as well!

    Pakistani leaders – don't let this guy go! Intelligence agencies – please get to his real identity!

    Letting him go will be a Waterloo for the leaders in Pakistan!

  14. The undeniable fact is Raymond Allen Davis had deliberately murdered two innocent Pakistani men in cold blood.

    Raymond Allen Davis lies by saying falsely that after one of the young men allegedly brandished a pistol at him, Davis opened fire and killed both of them with his own 9mm Glock pistol that was not licensed. Davis claimed to the police his actions were in ‘self-defense' but we all know that he is a pathetic liar. Lahore’s police chief, Aslam Tareen, said no finger prints had been found on the triggers of the pistols found on the bodies of the two men and the laboratory tests showed the bullets remained in the magazine of their gun, and not the chamber. (Source: Diplomatic Immunity or License to Kill, timesofindia.indiatimes.com, Feb 11, 2011).

    Faizan and Faheem received three injuries each from the back side. The murderer himself admitted that he fired at Faizan from the back when he was running. So it was not self defence but a ruthless horrible murder that caused the deaths of four innocent persons. The witnesses say that the victims did not aim at the murderer.

    According to Vienna Convention on Consular Relations on 24 April 1963, Pakistani police can arrest Raymond Davis because he had murdered two innocent Pakistani men.

  15. If he is really not a diplomat then Pakistani courts should not release him at any cost.

    Now American government will try to settle down things with the families of 3 victims but hopefully their plans will get failed!

  16. We have no right to celebrate independence because we are still a slave and we take dictations from our lord America for every single issue in the country. As Raymond had allegations of double murdering and his act was strongly condemned by the whole nation, he was set freed. Imagine the intensity of heat and grief on the sad incident that wife of a victim committed suicide out of feelings of helplessness and despair from the justice delivering faction of the society. Religious groups and political parties pushed the families of victim to accept blood money referring it as a shariah law. At last but not least it was proven that money can buy you anything even pardon. It is shame for the whole nation that we have no dignity but compromises in life .we pardoned Raymond Davis for three lives but could not manage a pardon for Aafia for just attempt to attack on Nato officer. Shame, woe and curse many times on all of us for being sold out for dollars and humble slaves of America.

    Another victim of Raymond Davis found in a posh area of Lahore

    live pakistan news

  17. I’d like to thank you for the efforts you have put in writing this blog. I am hoping to view the same high-grade content by you later on as well. In fact, your creative writing abilities has motivated me to get my own site now ;)

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