Fixating on the wrong issues

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Much of what was being suspected about Raymond Davis is proving correct as information on the man, his military service, his operation here and his possible contacts with some terrorist groups attacking Pakistans interests, trickles in. Soon enough, there will be more, leading to a better, though not necessarily a fuller understanding of the United States strategic games in this region.

This has led to an error of conflation. Everyone wants to claim the mans scalp. But the relevant issue, no matter what mischief Davis was up to, remains his status. Is he a diplomat or not? It is important to underscore this point because the majority of commentators in the media have begun to point to the information trickling in as reason to keep the man here and punish him for murdering the two boys. That is not correct.

Espionage is an activity all states indulge in. It is an open secret that embassies have undercover intelligence staff whose job it is to pick up intelligence on the receiving state as part of multiple input the sending state requires to devise its policies towards the receiving states. They are almost always posted as diplomats so they can avoid the jurisdiction of local laws and being tried for espionage if and when caught.

Not always is this covert, cloak and dagger stuff. For the most part it is overt and embassies rely on open sources for picking up info and collating and analysing it. But, depending on the nature of relations between the sending and receiving states and also the interests of the sending state, the intelligence operatives can also run covert operations. Since they are posted as diplomats, if and when caught, the person is declared persona non grata and asked to leave the country. Beyond that the receiving state can do nothing.

Moreover, the onus of accepting a national of another state is on the receiving state. The receiving state can refuse a particular name and the sending state has to abide by that decision.

The real question then is not what Davis was doing, whether he is Xe or CIA or Lucifer himself. The ONLY relevant question is his status. If he does not enjoy diplomatic status then he has to be tried in Pakistan. If he does, he walks away.

We now have two versions on that. The one given by former Foreign Minister Shah Mahmood Qureshi is unambiguous, categorical and unequivocal i.e., Davis does not enjoy blanket immunity. This would mean that while Davis does enjoy some immunity, he is not immune to prosecution in cases involving a grave crime. So, does he fall under the Vienna Convention on Consular Relations 1963? Mr Qureshi, while saying that he does not enjoy blanket immunity has not told us why? The details are still missing and might be part of what Mr Qureshi says is up his sleeve.

The issue, as it has unfolded since Mr Qureshis press conference, is heavily tinged with politics and expediency on all sides. This is only worsening the situation.

The American view is that Pakistan is violating international law and, as one senior US administration official reportedly put it, it does not matter what Davis was doing. The relevant issue is whether he is a diplomat and the answer to that question was yes.

This question and its answer should not have been difficult but has become so. Given the groundswell of emotions in Pakistan, Mr Qureshi needs to stop scoring political points and tell his audience why the Foreign Office thinks Davis does not enjoy blanket immunity. Is it a problem of interpretation of law? Could be. So, how can it be resolved?

I had suggested, on the basis of a proposal by Jurist Feisal Naqvi, that the issue may be taken to an independent tribunal of the International Court of Justice. The ICJ tribunal, in an advisory capacity, could be asked by Pakistan to determine if Davis enjoys diplomatic immunity. This would put the matter before impartial inquiry which has become an absolute necessity given how this incident has unfolded. If its an issue of interpretation, lets get an impartial tribunal to do that.

The second important matter relates to how Davis should be treated in the event that it is proved beyond any doubt that he does not enjoy diplomatic immunity. It is a matter of some concern that commentators, while insisting that he be tried in a Pakistani court, have already condemned him for murder. While one can understand the public sentiment, though it cannot be condoned, the Punjab Law Minister, Rana Sanaullah, has no business to appear on TV channels and play to the gallery by declaring that Davis is a murderer.

What is worse is that no one has challenged him on this count. Given his position he should open his mouth with great responsibility. The problem is that he is not exactly known for choosing his words carefully.

This is a bogus approach. Davis criminality or innocence can ONLY be determined by a court of law. In fact, he should be free to choose his defence counsel and must be afforded a clear, transparent trial. That is the essence of rule of law and an independent judiciary which we keep invoking but which is being undermined by pre-trial talk that has already given a verdict on Davis criminality. The important point in this is that even if someone has been clearly seen by others to have murdered a person in cold blood, then too law has to take its course. Witnesses have to speak before the court and the court has to give its verdict on whether the man tried for murder is guilty or not.

The issue has already been confused; lets not confound the confusion.

The writer is Contributing Editor, The Friday Times.