The more the Davis case gets entangled, the more seem clearer the ways of its eventual unraveling. The question of the moment: Does Davis have diplomatic immunity? The Americans insist he does and that he be handed over immediately. Pakistan, on the other hand, is plagued with the endless debate of whether he has the right to immunity or not. The government has adopted a clear stance: he shall be taken to court. But saying this is not enough to untangle this mess.
It is not possible to ascertain Davis status as a diplomat in the court. I can remember no example where a diplomatic dispute between two countries, which falls under the jurisdiction of international laws, was decided by the lower courts of one of the nations involved. Furthermore, how will the US be bound by a Pakistani courts judgement? Will it abdicate its stance in the face of a courts judgment?
The entire argument between the US and Pakistan is about whether Davis can be tried in a Pakistani court or not? The governments stance that the court shall decide might buy it time but not for long. The courts decision is going to come sooner or later and since the murder was committed in broad daylight, Raymond Davis cannot deny it. He claims that he shot in self-defence while the police says is false according to their investigations. Anyways, this claim will be tested in the court. But the real problem still remains: how to appease the US? Because unless the US mollifies, the issue will remain up in the air.
Why dont we adopt a way that both countries are bound to accept. Obviously, an international arbiter is required for that. For that, we need to go to International Court of Justice. Our dispute with the US is about the interpretation of law. The point that I am going to make relates more to application than interpretation; the fact that whether outsourced employees of an embassy have immunity under the Geneva Convention of 1961 and 1963 needs to be sorted out regardless of the current dispute.
For the past 15 years or so, recruiting people of private agencies for military and diplomatic services has been done time and again. The US uses hired gunners for services during the war and expects the same prerogatives and privileges for them which are accorded to regular Army personnel. But the US itself neither applies the same laws to them which its regular Army personnel are subject to nor are they given the rights which regular Army personnel are entitled to. The same applies to gunners and sabotagers employed for diplomatic missions.
At the moment, the Raymond Davis case presents the same quandary. The Government of Pakistan says that he is not entitled to immunity because he is not a diplomat. The GoP cites the Geneva Convention and interprets in a way that is not acceptable to the US. This is the basic question without answering which this dispute cannot be solved. No court decision in Pakistan is going to mitigate it and as the US insistence for release and the concomitant refusal from Pakistan get more forceful, the animosity will also deepen.
Doubtless, there is no gain for the US in prolonging the matter but it is going to be very damaging for Pakistan. We dont have anything to threaten America with. Think about it: what can we possibly say to them? That we will bar trade with it? Break diplomatic relations with it? Stop buying weapons from it? Cut the supply line to its troops in Afghanistan? Impose sanctions on it? Firstly, these threats will be perceived as empty threats. We can possibly only act on one of these: cutting supply lines. The US will surely be hurt by this but it isnt so weak and helpless that it cant come up with an alternative. All the other threats will only hurt us.
On the other hand, the US is fully capable on acting on all of its threats. We cant win this war of threats and intimidation. The only recourse we have in this situation is that we challenge Americas view on a point of law and logic. We should present our case in the international court and prove categorically that Davis does not have immunity.
This might be the first case of its nature in the ICJ. It was only possible for Iraq and Afghanistan to have brought such a case because the US has used hired gunners only in these two countries. Hamid Karzai has ordered Blackwater to exit Afghanistan but the Afghan government lacks the strength to implement its decision and the employees of Blackwater still roam the Afghan streets. This company has committed many atrocities in Iraq. They have even gunned down innocent bypassers for sport. But that country is also occupied by the American forces and hence not in a position to challenge the US. Davis also works for a company like Balckwater: Hyperion Protective Consultants. It is a company in Florida which provided personnel to the CIA for activities in Pakistan. Davis came to Pakistan under this arrangement.
We can raise the question that whether a UN member country can demand diplomatic immunity for an outsourced employee? I think when the Geneva Convention talks about the status of diplomats, it is talking about regular staff of the embassy. Not every hired Dick and Harry can be given diplomatic status. All employees are indeed hired on a contractual basis but that contract is with the State Department or the Foreign Ministry, not with some private company. Such an employee cannot be entitled to immunity. We must keep this aspect in mind.
The writer is one of Pakistans most widely read columnists.
