Perils of a “strategic partnership” with the USA – the “Raymond Davis” affair

March 22, 2011

An Analytical Monthly Review editorial.

The early months of 2011 will surely be remembered for the spectacular mass uprisings in the Arab world. And yet, all the while that the world’s attention has been captured by these events, a much less talked about and yet highly significant story has been unfolding in Pakistan. This editorial from the Analytical Monthly Review outlines in detail the “Raymond Davis Affair.” The story of a CIA operative who shot and killed two young men in broad daylight on a busy Lahore street. His escape vehicle, in a bid to spirit him away ran over another man, a street trader, and killed him too. James Bond anyone? This article outlines the lies and deception of the US establishment as it tried to do damage control by claiming that Davis was a “diplomat” and hence had immunity from prosecution by Pakistani courts.

Since this article was written Davis’ release has been secured by offering “blood money” to the families of his victims. It has also emerged that Davis was working with Tehrik-e-Taliban in Pakistan. A recent article in Counterpunch gives more details on the story unfolding since after the piece below was written.

The world of CIA, ISI, RAW and international diplomacy is usually impenetrable, mysterious. However the recent Wikileaks revelations have given the ordinary citizen a rare glimpse into this world. Leaked cables clearly indicate the servility of Indian politicians as well as bureaucrats to US interests. This article is a pointer to the dangers of such servile behaviour. – Ed.

The United States–Indian “strategic partnership” is an ongoing background fact of our lives. For a moment in 2007 national attention was focused on the growth of this far-from-equal military relationship, with the presence of a U.S. fleet in the Bay of Bengal making use of Indian bases in the so-called “Malabar exercises.” The left parliamentary parties gathered effective demonstrations against the presence of U.S. warships and, with the concurrent opposition to the unequal U.S. nuclear treaty, achieved a high-water mark in recent anti-imperialist mobilisations.

In the years since, joint U.S.-Indian military and “security” operations have continued and indeed increased, but the regime has used its resources to keep such events out of the news, and the diminished energies of the parliamentary left have been focused elsewhere. In the coming weeks naval exercises with the U.S. fleet will take place far from our shores, but—a deliberate provocation—in the East China Sea and together with the Japanese fleet. A further shame to the Indian fleet is that this participation shall be based on Okinawa, dominated by vast U.S. bases that the brave natives of that island have valiantly sought to be rid of for fifty years. The Obama administration has, in this regard, as in all others, been a continuation rather than a “change”. In October 2009 “Exercise Yudh Abhyas 2009” brought to India many hundreds of U.S. troops, and was “primarily focused around Counter Insurgency/Counter Terrorism strategies in a semi-urban scenario”, according to The Hindu [1]. The 2010 Obama visit was marked by new arms deals, and secret talks on further U.S. “assistance” to India in “capacity building to strengthen physical security” and “megacity policing.”

It has always been understood that this “strategic partnership” is directed against China, and from the viewpoint of world peace that is bad enough, but it is the vast increase in U.S. intervention in purely internal security matters (“counter insurgency” or “megacity policing”) that should be a primary concern.

Of course the United States has a parallel “strategic relationship” with Pakistan, and exactly how that impacts the U.S.-India “strategic partnership” is a delicate matter largely left unexamined by our mainstream press. We have no desire to speculate about the ploys and secrets of RAW, ISI and CIA , and can claim no expertise in finding our way in that world of night and fog. Yet the sudden unplanned eruption of the “Raymond Davis“ affaire in Lahore has, we believe, significant implications for our sovereignty and independence in the context of a “strategic partnership” with the United States.

On January 27, 2011 a U.S. national, who later identified himself as “Raymond Davis”, driving in a crowded district of Lahore had an encounter with two youths on a motorbike. From inside his car he shot and killed the passenger, 19 year-old Muhammad Faheem. The driver of the motorbike, 22 year-old Faizan Haider, attempted to run away. The U.S. national got out of his car and pursued Faizan Haider. A postmortem showed that Faizan had been shot twice in the back. Witnesses report that Davis calmly took photographs of the dead youths. A second vehicle containing several U.S. nationals, a Toyota Land Cruiser Prado with fake registration plates, travelling in the oncoming lane of traffic, crushed to death 25-year-old Obaidur Rahman, a market trader. It has been reported that the second vehicle was attempting to reach Davis to spirit him away. The operators of the Toyota Land Cruiser, having missed the connection with Davis and having killed Obaidur Rahman, fled to the U.S. consulate in Lahore.

While we can be confident that the above account of the events in Lahore on January 27th is in all essentials correct, all further assertions about the intentions, activities, statuses, and even identities of the U.S. nationals involved can only be regarded as tentative and contested.

In the ensuing six weeks and despite vigorous coverage by international media, the identities of the persons in the Toyota Land Cruiser who killed the random victim Obaidur Rahman have not been disclosed. It is reported that they have been removed from Pakistan and returned to the United States, with the acquiescence of the government of Pakistan. The U.S. consulate in Lahore has refused to give Pakistani authorities access to the vehicle that caused the death of Obaidur Rahman, and as far as it is possible to tell, the matter has been dropped. And surely this is the way that such affairs are supposed to be arranged. The insignificant, barely human, market vendor disappears from among the living with little more notice than if he had been an insect, while the Rambo Superheroes return to the Land of Freedom ready for their next exciting adventure. But, in a sequence not in the script, the flight of Raymond Davis to the U.S. consulate in Lahore was interrupted by a car stalled in his path, and he found himself in police custody, charged with murder. The Pakistani police took possession—among other things—of his gun and ammunition, his GPS device, his infra-red telescope, a wireless set, two mobile phones, a digital camera, a survival kit, five ATM cards and his U.S. “diplomatic” passport.

The response of the U.S. Department of State to the plight of Raymond Davis is itself a remarkable story. Philip J. Crowley, Assistant Secretary of State, asserted on January 27th that the person involved in the Lahore “incident” was an employee of the U.S. consulate, and that the name Raymond Davis was not correct. By January 28th the State Department was insisting that (whatever his name was) he had “diplomatic immunity”, and only weeks later began to use the name “Raymond Davis”. Recordings of what are claimed to be Davis talking on the day of his arrest also have him asserting that he was working at the U.S. consulate in Lahore “as a consultant”. But since consular employees would not have the diplomatic immunity claimed for Davis, the State Department then asserted that he was “technical and administrative staff” of the embassy in Islamabad. And since his name was not included on a list of embassy employees provided to the government of Pakistan on January 25th, it should come as no surprise that a “correction” was made to include his name on January 28th. By February 21st the U.S. was insisting that Davis was a “CIA contractor”.

Constant through this ever-changing account was the U.S. insistence that Davis had “diplomatic immunity” and should immediately be released. President Obama himself was made to announce that Davis was “our diplomat” and must be released. The most powerful figures in the U.S., Admiral Mullen, the Chairman of the Joint Chiefs of Staff, and Leon Panetta, the chief of the CIA, personally made contact with their Pakistani interlocutors to insist on the immediate release of Davis. Senator John Kerry, head of the Senate Committee on Foreign Relations, traveled to Pakistan for the sole purpose of getting Davis released. U.S. funds promised the Pakistani regime have been held up, and the Pakistani regime’s Saudi paymasters have been enlisted in the effort. To their amazement, this effort has—as of the first week in March—not yet succeeded, despite all prior experience with Pakistani military and politicians. But these are not normal times. U.S. insistence from the first has been that it is for the executive of Pakistan to decide the matter, and that holding Davis after U.S. invocation of diplomatic immunity was a violation of “international law”. Instead, the question of the claim of diplomatic immunity has been left to the determination of the Lahore High Court, which has set the date of March 14th for its next public pronouncement on the matter.

What is at issue is the sovereignty of Pakistan when faced with the firm, if indefensible, demands of the superpower. Why “indefensible”? Because the claim of diplomatic immunity for Davis is absurd. It is but the claim of “extraterritoriality” that in the days of old fashioned colonialism prevented the supposedly “sovereign” states of the lesser races, such as China or the Ottoman Empire, from exercising jurisdiction over the citizens of the imperial powers, whatever crimes they may have committed.

As a matter of international law, the Vienna Convention on Diplomatic Relations provides that “technical and administrative staff” of the legation of the sending state are to be accorded complete diplomatic immunity by the receiving state. But even accepting that Davis was notified to Pakistan as “technical and administrative staff” of the legation, which is—to say the least—doubtful, that is not enough. The Vienna Convention requires the sending state to also notify the premises for which the status is claimed, and it is certain that whatever the “premises” Davis was working out of, they were not notified. And that is also U.S. law. The international law principle of comity, which requires that states not adopt an unequal and double standard in their mutual dealings, requires only that Pakistan interpret these provisions as would the United States. Pakistani municipal law incorporates this basic principle of international law. While giving effect to the applicable treaties on diplomatic and consular immunities, the governing Pakistani statute—the Diplomatic and Consular Privileges Act, 1972—explicitly sets out the principle of reciprocal treatment of diplomatic and consular officers and employees in Pakistan. And the United States has, on the precise question, refused to acknowledge diplomatic immunity.

In 1984 a case reached the United States Court of Appeals for the 2d Circuit, the sole case in U.S. law that has decided the questions presented in the Raymond Davis case. United States v. Kostadino [2], 734 F. 2d 905 (2d Cir. 1984). It has not be over-ruled, has been cited recently, and no conflicting case law has come up. The case can be said to be the governing law on these specific issues of diplomatic immunity in the United States today.

Mr. Kostadinov was Asst. Commercial Counselor at the New York City commercial office of the Bulgarian Embassy, whose primary legation building was in Washington , D.C.  He had a Bulgarian “Diplomatic Passport” and was accorded an “A-2” diplomatic visa (issued to technical and administrative staff) by the United States. He was arrested on a charge of espionage and held without bail. The Bulgarian Government invoked his “diplomatic immunity.”  Thus the issues presented, as set out below, were the same as with Davis.

1. When an individual is charged with a crime by the court of the receiving state and “diplomatic immunity” is invoked by the sending state, in the U.S. view of international law, who determines whether the accused has diplomatic immunity?

The answer by the U.S. court was emphatic—in the U.S. view of international law it is the courts of the receiving state that make the determination.

2. When an accused is held without bail and the sending state invokes “diplomatic immunity”—can the accused still be held without bail?

The answer of the U.S. court as to the U.S. view of international law was even more emphatic.  Not only was Mr. Kostadinov held without bail after his government invoked “diplomatic immunity” but Mr. Kostadinov was held without bail, pending the determination of the issue by the Court of Appeals, after the Judge of the court of first instance (the late U.S. District Judge Vincent Broderick) had held a hearing and determined that the accused was a diplomat and entitled to diplomatic immunity.

3. Does entry on a “diplomatic passport” and notification from the sending state and possession of a “diplomatic” visa (a U.S. “A-2” diplomatic visa) issued by the receiving state give diplomatic immunity?

Again the answer of the U.S. court was emphatic, in the U.S. view of international law it does not.

4. Are the activities and location of the individual with diplomatic passport and diplomatic visa relevant to the determination of a claim of immunity under the “technical and administrative ” staff provisions of the Vienna Convention on Diplomatic Relations?

The U.S. court decided that these factors are the determining issue under the U.S. view of international law. It held that although Mr. Kostadinov worked in diplomatic (not consular!) premises in New York City, to assert diplomatic immunity he would have had to be working in the primary legation premises in Washington, DC.

Davis, however one might describe his work, was not employed at the primary legation premises in Islamabad. There can thus be no question but that under U.S. law, as set out in Kostadinov, he would not be entitled to diplomatic immunity. Even a retired U.S. State Department specialist in diplomatic immunity, Ron Mlotek, who was legal counsel at the State Department Office of Foreign Missions for twenty-five years, has admitted as much. Mlotek described [3] the State Department claim of diplomatic immunity for Davis as relying on “legal smoke and mirrors”, suggesting that the U.S. would not grant immunity under like circumstances and that reciprocity was “critical”.

But “comity” is a notion that is appropriate only to relations between sovereign states, and as we most likely shall see in the coming days—though events so far have included some great surprises—the Pakistan regime shall find a way to bow to the demands of the U.S. superpower.

Whatever momentary pleasure these embarrassments of the ISI may give to some of our own specialists in the world of mirrors and deceptions, the moral of the story should be taken seriously. We are headed down the same path of “strategic partnership” with the United States that has brought Pakistan to this pass. As a result of these unexpected events the Pakistani Foreign Ministry has, according to the Indian Express [4], been obliged to reveal that “there are 851 Americans with diplomatic immunity in Pakistan, of whom 297 are not working in a diplomatic capacity” and “sources in the Interior Ministry told … that the number of US non-diplomats [with diplomatic immunity] is 414.” We would like to see raised at question hour an inquiry as to how many U.S. non-diplomat operatives with diplomatic immunity are now present in India, however unlikely there is to be an honest (indeed any) answer to the question.

There should be no illusion as to the regard in which India is held by the intelligence and military commanders of the United States, let alone their subordinates. In January 2010, the Woodrow Wilson International Center in Washington, D.C. held a program entitled “The Emerging U.S.-India Strategic Relationship”. A presenter, Bethany Danyluk of the U.S. security and intelligence contractor Booz Allen Hamilton, reported on her study of perceptions of the U.S.-India relationship. She found that U.S. officials were critical of their Indian counterparts for being “acutely sensitive” about the notion of sovereignty. As the Raymond Davis affaire demonstrates, the primary danger is that they have not been sensitive enough.

References

1. http://www.thehindu.com/news/states/other-states/article38869.ece

2. http://openjurist.org/734/f2d/905/united-states-v-kostadinov

3. http://www.salon.com/news/politics/war_room/2011/02/23/raymond_davis_diplomatic_immunity

4. http://www.indianexpress.com/news/suspected-us-operatives-leave-pakistan/755879/

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