Raymond Davis Case: Does not have full diplomatic immunity: UK Experts - The Guardian

[Awesome]

Another massive blow to the American position dealt by the British

This CIA agent is no diplomat | Craig Murray | Comment is free | guardian.co.uk

I tread with some caution in discussing the case of Raymond Davis, the CIA agent facing charges of double murder in Pakistan and the threat of the death penalty. I add my plea to the voices urging the Pakistani government to ensure Davis does not hang.

But one thing I can state for certain: Davis (as we will call him for now) [Asim's comment: I wonder what they are about to reveal about his name next] is not a diplomat and does not possess diplomatic immunity. There is some doubt as to who he really is, with the charges against him in Pakistan including one that he obtained documents using a false identity.

Watching Barack Obama's presidency has been a stream of bitter disappointments. His endorsement of Davis as "our diplomat" and invocation of the Vienna convention on diplomatic relations was, in its sheer dishonesty, as sad an Obama moment as any.

As a general rule, international treaties are written in very plain language and are very accessible. That is certainly true of the Vienna convention. Unfortunately I can see scant evidence that any journalists have bothered to read it.

Leaving aside staff of international organisations recognised by the host country as having diplomatic status (and there has been no claim yet that Davis was actually working for Unicef), in bilateral diplomatic relations the provision for diplomatic immunity is tightly limited to a very small number of people. That makes sense when you consider that if Davis did have diplomatic immunity, he would indeed be able to avoid detention and trial on a murder charge. The world community is not going to make that impunity readily available.

Full diplomatic immunity is enjoyed only by "diplomatic agents". Those are defined at article 1 (e) of the Vienna convention as "the head of the mission or a member of the diplomatic staff of the mission". Helpfully the diplomatic staff are further defined in the preceding article as "having diplomatic rank". Those ranks are an ascending series of concrete titles from third secretary through to ambassador or high commissioner. Davis did not have a diplomatic rank.

But there is a second category of "administrative and technical staff" of a mission. They enjoy a limited diplomatic immunity which, however, specifically excludes "acts performed outside the course of their duties". (Vienna convention article 37/2.) Frantic off-the-record briefing by the state department reflected widely in the media indicates that the US case is that Davis was a member of technical staff covered by this provision.

But in that case the US has to explain in the course of precisely which diplomatic duties Davis needed to carry a Glock handgun, a headband-mounted flashlight and a pocket telescope. The Vienna convention lists the legitimate duties of an embassy, and none of them need that kind of equipment.

It appears in any event unlikely that Davis ever was a member of the technical staff of the embassy or consulate. Under article 10 of the Vienna convention the host authorities must be formally informed – by diplomatic note – of the arrival and departures of such staff, and as embassies under article 11 are subject to agreed numerical limits, that in practice occurs when another member of staff is leaving. If this was not done Davis was not covered even in the course of his duties.

Pakistani senior ex-military sources tell me there is no note appointing Davis as embassy or consulate staff, and that appears to pass a commonsense test – if the note exists, why have the Americans not produced it?

Finally, possession of a diplomatic passport does not give you diplomatic status all over the world.

I hope this helps clarify a position that the US government, and the media it influences, have deliberately muddied. Sadly this whole episode reflects the US's continuing contempt for the basic fabric of international law. It sits with its refusal to sign up to the international criminal court so that US citizens may not be held accountable for war crimes, with its acknowledged overseas assassination programme, its one-sided extradition treaties and claims of extra-territorial jurisdiction over offences committed outside the US.

We hoped it might get better under Obama. It is not.

"We've got a very simple principle here that every country in the world that is party to the Vienna convention on diplomatic relations has upheld in the past and should uphold in the future, and that is, if our diplomats are in another country, then they are not subject to that country's local prosecution," Obama said in a press conference. "We expect Pakistan, that's a signatory and recognises Davis as a diplomat, to abide by the same convention ... I'm not going to discuss the specific exchanges that we've had [with the Pakistani government], but we've been very firm about this being a priority."

Massive.

Craig Murray is an author, blogger and human rights activist. Formerly a diplomat, he was the UK's ambassador in Uzbekistan from 2002 to 2004. He stood as an independent parliamentary candidate in Blackburn in 2005. Craig is also an honorary research fellow at the University of Lancaster School of Law

It turns out, on the international level, people are equally irked by the blatant abuse of the vienna conventions in a double murder trial - as much as Pakistanis are.

Will experts of other nations also step up? If you support the US position now, you'll have to support it happening in your own country tomorrow.

 

[VCheng]

Opinions are fine, but let's wait for the formal process to proceed in the LHC, shall we?

 

[Awesome]

Opinions are fine, but let's wait for the formal process to proceed in the LHC, shall we?

Well I did write ": UK Experts" not ": LHC Verdict". Also we need to spread the word

 

[WAQAS119]

Opinions are fine, but let's wait for the formal process to proceed in the LHC, shall we?

Don't worry son! Don't worry! You are trying too hard!

 

[VCheng]

Well I did write ": UK Experts" not ": LHC Verdict". Also we need to spread the word

Fair point Sir. Spreading the word is fine too, I can understand that as well. But just a little more patience for a fair process to move forward is good too, given that a High Court has the matter under consideration, and it is supposed to be impartial. I have every confidence that it will be so.

 

[A1Kaid]

Good to see UK experts voicing their criticism on the RD case.

Full diplomatic immunity is enjoyed only by "diplomatic agents". Those are defined at article 1 (e) of the Vienna convention as "the head of the mission or a member of the diplomatic staff of the mission". Helpfully the diplomatic staff are further defined in the preceding article as "having diplomatic rank". Those ranks are an ascending series of concrete titles from third secretary through to ambassador or high commissioner. Davis did not have a diplomatic rank.

But there is a second category of "administrative and technical staff" of a mission. They enjoy a limited diplomatic immunity which, however, specifically excludes "acts performed outside the course of their duties". (Vienna convention article 37/2.) Frantic off-the-record briefing by the state department reflected widely in the media indicates that the US case is that Davis was a member of technical staff covered by this provision.

But in that case the US has to explain in the course of precisely which diplomatic duties Davis needed to carry a Glock handgun, a headband-mounted flashlight and a pocket telescope. The Vienna convention lists the legitimate duties of an embassy, and none of them need that kind of equipment.

Pakistani members on this forum have been saying the same thing all this time, the same arguments and points have been made. Yet, there still remain people in denial and argue full diplomatic immunity to Raymond Davis. In fact, it seems he has no diplomatic immunity at all.

Don't get me wrong "Raymond Davis" is an agent, just not a "diplomatic agent".

 

[A1Kaid]

"Raymond Davis" has CIA immunity.

 

[DV RULES]

Davis may not have immunity: US expert



By Muhammad Aqeel Feb 27, 2011

LAHORE - An expert who previously worked in a key US State Department diplomatic affairs position was questioning the Obama administration’s claim that Raymond Davis, the American currently imprisoned in Pakistan after killing two men, had diplomatic immunity, news website Salon.com reported.

The website said that Ron Mlotek, who was a specialist in diplomatic law, had served for 25 years as legal counsel at the State Department Office of Foreign Missions, which regulates foreign missions in the US. In an interview with Salon.com, Mlotek said there remained crucial unanswered questions in the case, and that the question of Davis’ immunity was not nearly as clear-cut as the administration had argued.

“On the basis of what has been publicly reported, it appears to me that the State Department is relying on legal smoke and mirrors,” the site quoted Mlotek as saying. In his former position, Mlotek had dealt with many cases of alleged crimes by foreign representatives in the US, the site reported.

The Obama administration had argued that Davis’ detainment was not permitted because he had full diplomatic immunity - a position which, if he did actually enjoy such immunity, would be correct, the site reported Mlotek as saying. The site reported that there were two relevant international treaties to consider when deciding whether Davis had immunity: the Vienna Convention on Consular Relations (1963) and the Vienna Convention on Diplomatic Relations (1961).

When a diplomatic officer or a consular officer was dispatched to a foreign country, Mlotek said, the US informed the so-called “receiving state” that the officer was arriving and describes his or her job at the embassy or consulate, the site reported. The mode of official communication was called a “diplomatic note.”

After getting the notification, the receiving state - in this case Pakistan - typically recognized the person as a diplomatic officer or a consular officer and issued some kind of diplomatic ID card or notice of recognition, the site stated. Diplomatic officers received full immunity, while consular officers got only limited “official acts immunity”, the site reported.

This difference was crucial in Davis’ case because the administration had changed its story about Davis’ status, it said. In late January, the site added, the administration described Davis as “a staff member of the US Consulate General in Lahore”, but later on, they insisted that Pakistan had been officially informed in early 2010 that Davis was “a member of the administrative and technical staff” at the embassy.

Consular officers therefore had a lesser class of immunity that covered only actions that were part of their official duties, the site said. “Davis’ official duties almost certainly would not have involved using an unregistered pistol against Pakistani civilians,” it quoted Mlotek as saying.

Assuming what the administration was now claiming was true, there was a second set of potential flaws in the claim of full immunity according to Mlotek, the site said. If the US had informed Pakistan in 2010 that Davis was working at the Islamabad embassy, why was he actually working in Lahore? Mlotek summarises the potential problem:

“Suppose we not only lie about the fact that he's a spy, but we lie about the fact that he has anything to do with the embassy in Islamabad. And then, to top it all off, not only is he not in Islamabad, he’s in Lahore. He’s not even working in the premises of the consulate. He’s working in a secret facility that we have not announced.

The Vienna Convention specifically obligates the US to tell Pakistan about where their premises are. And not only that, he’s carrying a weapon - we didn’t tell the Pakistanis that. At what point do you say the diplomatic note was not valid?” the website quoted the former specialist as saying.



Davis may not have immunity: US expert

 

[Solomon2]

They enjoy a limited diplomatic immunity which, however, specifically excludes "acts performed outside the course of their duties". (Vienna convention article 37/2.)

As it explicitly states, this provision only applies to civil and administrative jurisdiction, not criminal. That means, for example, Pakistan could dun Davis for paying a gun license fee and ordinary Pakistanis sue him for causing property damage outside the course of his duties but charges of murder or manslaughter remain the jurisdiction of the sending country and therefore Davis has immunity from prosecution by Pakistani courts.

Sad to say, just because you read it in the Guardian doesn't mean what you read is true. Even if it comes from the pen of a former diplomat.

2.Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles imported at the time of first installation...

[Article 31-1] A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction...

 

[DV RULES]

The core of the dispute with Pakistan about Raymond Davis (let’s understand it before it sparks fires with Pakistan)


25 February 2011
diplomatic immunity, pakistan, raymond davis

The fog spewed by America’s geopolitical experts (mostly faithful lapdogs for the US government, abetted by the lackeys of the news media), has obscured the core dispute between the US and Pakistani governments. Was Davis an embassy employee? That’s the question. If he was just a consular employee he had a minimal level of immunity. It’s a simple question, although impossible for outsiders to answer. This is the third in this series (see other links at the end).

Global wars are won by alliances. The Davis affair has angered many people in Pakistan, seen as yet another US insult to their sovergenty. Whatever Davis was doing in Pakistan, its strategic cost might be high.

Understanding the situation begins with the facts. Neither government has been helpful; here we examine the various stories. The US government provided several stories, but giving no supporting evidence. The Pakistani government, probably hoping this nightmare ends soon, has done rebuttal by leak (while its government churns). Conflicting assertions, where loyalists believe the home team story — and refuse to see the other side.

The first US announcement said Davis was a consular employee (matching the ID he carried): Embassy Statement Regarding Lahore Incident, US State Department (Islamabad), 28 January 2011:

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.

Realizing that this meant no criminal immunity for Davis, eventually a new story emerged. As in this “background briefing” teleconference by the State Department on 21 February. Excerpt (red emphasis added):

We still believe earnestly that Mr. Davis is a member of the administrative and technical staff of the Embassy in Islamabad and is entitled to full immunity from criminal prosecution and should not be arrested or detained. And we will continue to work with Pakistan to resolve any differences that we have on this issue.

With that, I thought we’d bring in one of our foremost experts in international law just to kind of go through this issue with you. It is a background call attributable to a Senior Administration Official. For your knowledge, it’s [name redacted from transcript].

… First, on January 20th, 2010, the U.S. Embassy in Islamabad notified Mr. Davis as a member of the administrative and technical staff under the Vienna Convention on Diplomatic Relations. That’s a treaty to which both the U.S. and Pakistan are parties without reservation, along with 185 other countries. From that point, he enjoyed the status as a member of the staff of the mission. He enjoyed privileges and immunities against local criminal law, including inviolability of person, inviolability from arrest and detention, immunity from criminal jurisdiction.

… When people come into post, we send them a diplomatic note to the Ministry of Foreign Affairs and we describe someone as head of mission, a member of the diplomatic staff, or a member of the staff of the diplomatic mission. And he was notified as a member of the administrative and technical staff of American Embassy Islamabad. That was on January 20th, 2010.

… the relevant notification is the one shortly after he arrived, January 20th, 2010, a diplomatic note, which I think has been shown to the press, which says we have the honor to inform the Ministry of Foreign Affairs of the assignment of Mr. Davis, administrative and technical staff, American Embassy Islamabad.

But I find no mention of any journalists seeing this note, and nobody asked for it on the call. Justin Elliott of Salon asked, and got this reply:

State Department spokeswoman Nicole Thompson tells me that the January 2010 diplomatic note regarding Davis will not be made publicly available. “We don’t release diplomatic communications,” she said.

So much for the government’s evidence. Other sources tell a different story. Glenn Kessler at the Washington Post (citing no source):

The U.S. embassy appears to have complicated matters by first sending a diplomatic note to the Pakistani Foreign Ministry on Jan. 27 describing Davis as “an employee of U.S. Consulate General Lahore and holder of a diplomatic passport.” A second note, on Feb. 3, described him as “a member of the administrative and technical staff of the U.S. embassy.”


More detail from “Davis was not a diplomat when he killed“, The News International (Pakistan newspaper), 18 February 2011 — Excerpt:

T

he US Embassy documents as provided to the Government of Pakistan expose the US case of Raymond Davis, whose name was missing in the January 25, 2011 list of pending cases but got inserted in the revised list sent to the Government of Pakistan on January 28, a day after he killed two Pakistanis in cold blooded manner.

Documentary evidence reveals that the US Embassy in Islamabad on January 25th forwarded 48 names of its employees, both diplomats and non-diplomats, to the Ministry of Foreign Affairs for the issuance of relevant diplomatic identity card by the latter. This list of 48 employees did not include the name of double murderer Raymond Davis. According to the documents, the list of 25th January included the following names: …

Three days later, on Jan 28, a day after Davis killed two Pakistani young men in Lahore, the US Embassy re-sent the revised list of pending cases. This list included the name of Raymond Davis at No 5. The revised list included these names: …

Why is this important?

The US State Department explains the importance of this question in their publication Diplomatic and Consular Immunity: Guidance for Law Enforcement and Judicial Authorities“. Consular officers have little immunity. Excerpt (red emphasis added:

Members of Consular Posts

Countries have long recognized the importance of consular functions to their overall relations, but consular personnel generally do not have the principal role of providing communication between the two countries-that function is performed by diplomatic agents at embassies in capitals. The 1963 Vienna Convention on Consular Relations grants a very limited level of privileges and immunities to consular personnel assigned to consulates that are located outside capitals.

There is a common misunderstanding that consular personnel have diplomatic status and are entitled to diplomatic immunity.

Consular Officers.

Consular officers are those members of consular posts who are recognized by both the sending and the host country as fully authorized to perform the broad array of formal consular functions. They have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court).5

… As indicated, official acts immunity pertains in numerous different circumstances. No law enforcement officer, State Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed.

Consular Employees.

Consular employees perform the administrative and technical support services for the consular post. They have no personal inviolability, only official acts immunity, and enjoy immunity from the obligation to provide evidence as witnesses only in respect of official acts. …

The core of the dispute with Pakistan about Raymond Davis (let’s understand it before it sparks fires with Pakistan) « Fabius Maximus

 

[American Eagle]

You have spent a lot of time composing your analysis.

The simple International Law fact is you misunderstand the term "diplomat" which causes you to miss the point.

Mr. Davis was appointed a diplomat by the US Dept. of State which hired him through a holding company with State assuming all liability for the employee of the company retained, which in turn supplied Mr. Davis to State.

Mr. Davis has been certified as a Diplomat with the US Embassy in Islamabad through summer 2012, with a valid FO VISA issued in Islamabad appended to his Diplomatic Passport. Both the passport and VISA are usble to do one's diplomatic job nationwide in Pakistan.

All this has been gone over time and again.

A separate subject is the fact that Mr. Davis was the victum of a failed stick up by known to the Pakistani police robbers. He defended himself.

But, with Diplomatic Immunity all of that failed robbery on his person is moot under Diplomtic Immunity.

What is your military interest in the PDF, if you would care of answer? Are you a student or are you now serving in a military and if so of which nation?

Thanks for your effort. You write well, but in this case you are off the subject. Have a good day.

 

[VCheng]

Guys, March 3rd is only TWO days away. I am sure we can be patient till then for the process to move forward.

 

[Awesome]

Fair point Sir. Spreading the word is fine too, I can understand that as well. But just a little more patience for a fair process to move forward is good too, given that a High Court has the matter under consideration, and it is supposed to be impartial. I have every confidence that it will be so.

I have the full confidence that the court will act in accordance to the law, and the evidence provided. The supposition that the court would be wrong or unfair "is a non-starter". If Immunity is presented after this, I'll raise my voice against the federal government not the courts.

Impartiality does not mean justice, since that depends upon what is presented to the court.

 

[Awesome]

I'm really waiting for the British papers to dig out his real name, if by any chance its not Raymond Davis, thats the simplest way to disbarr anything and everything the US embassy has been saying about him.

The British guys have deep links within the US, our media does not.

 

[BATMAN]

Fair point Sir. Spreading the word is fine too, I can understand that as well. But just a little more patience for a fair process to move forward is good too, given that a High Court has the matter under consideration, and it is supposed to be impartial. I have every confidence that it will be so.

Guys, March 3rd is only TWO days away. I am sure we can be patient till then for the process to move forward.

Corrupt judiciary will not dare to aquit him but the verdict was sent out by Fozia Wahab and the judiciary by forcing him as diplomat.

We know where judiciary and govt. is taking it.... the sacking of forein minister and his subsequent statements clearly says that he was forced to issue letter.

As a matter of fact he came on bussiness visa and was not listed in diplomatic staff's list.

Now judiciary is practically asking for immunity letter. We know whats becomeing of it.

Rest is all in the article... which describe who is termed as diplomat and how far immunity goes.

Mulla Zaeef was a diplomat but he served his term!

There are many other examples from history where even princes (natural diplomats) were subjected to trials and punishment in fair courts of Europe.

More over spy have no immunity. Raymond Davis is accused of having links in various bomb blasts in country resulting in hundreds of deaths.