Cut the Gordian knot
S Iftikhar Murshed
Monday, February 14, 2011
There has been stern criticism as well as exaggerated approbation on my article of February 7 in this newspaper on the Raymond Davis incident. The criticism was more instructive than the appreciation in as much as it demonstrated that unbridled emotion, no matter how sincere and spontaneous, impedes rational discourse. The reality is that the situation has rapidly deteriorated into a full blown diplomatic crisis which is becoming more serious by the day.
This is evident from reports in the American print media, aired as breaking news by almost all Pakistani television channels, that if Davis is not released by February 11, Washington would close its consulates in Pakistan, ask Ambassador Haqqani to leave the US, and cancel President Zardari’s visit to Washington. Though this was denied by the US Embassy in Islamabad, it highlights the escalating tension between the two countries.
Under dispute is whether or not Raymond Davis is entitled to diplomatic immunity after shooting dead two allegedly armed men, Muhammad Faheem and Faizan Haider, in Lahore, on the presumption that they were about to do him harm. A third fatality was that of a man crushed by a US Consulate vehicle speeding helter-skelter down the wrong end of a one-way road in a desperate attempt to reach Davis.
The Shakespearian soliloquy “when sorrows come, they come not single spies, but in battalions,” proved depressingly true with yet another related death. In desperation, Faheem’s grief-stricken 18-year-old widow, Shumaila Kanwal, committed suicide on February 6. As she breathed her last, she lamented that she did not “expect any justice from this government” and pleaded: “I want blood for blood. The way my husband was shot, the killer should be shot in the same fashion”. This heart rending tragedy has further inflamed public anger and is fraught with serious consequences.
It is possible that Shumaila might not have taken her own life had the federal government, and more specifically, the foreign office, come forth with the facts. She did not “expect any justice from this government” because she was unaware of the whole truth which was drowned by her overpowering grief and the din of the popular outcry against the killings. No person in authority dared to state publicly that: (i) Raymond Davis had no apparent motive to kill her husband and his companion other than the claim that he perceived a threat to his life from them and had acted in self-defence; (ii) the right of self-defence is conceded by the Pakistan Penal Code; (iii) the argument advanced by some commentators that the response to a perceived life threat should be proportionate is nebulous, vague, and cannot be quantified, and; (iv) if Davis is a member of the technical staff of the US Embassy as claimed by the Americans, he has diplomatic immunity under article 37 (2) of the Vienna Convention on Diplomatic Relations.
Silence on the part of the government fuelled sensational media reports as a result of which emotions soared sky high. The tragedy has been exploited with abandon by politicians, retired bureaucrats and military officials, commentators and intellectuals alike mostly for no higher motive than self-projection. The refrain that has been reiterated time and again in television talk shows is that Pakistan is a sovereign country, it must therefore stand up to US pressure and enforce its laws. This is as it should be, but the ground realities are somewhat different. The state has surrendered territorial sovereignty to terrorist groups in parts of the tribal areas, ideological and perhaps even political sovereignty to the religious right, and economic sovereignty to external donors.
Excessive caution and prevarication have generated a diplomatic crisis which could have been avoided had the government come out openly on whether or not Davis has diplomatic immunity. Its Hamlet-like indecision has placed it in a situation where it has to navigate through treacherous waters and the options available are not only limited but also difficult. If Davis is released under American pressure, the government may not be able to withstand the tidal wave of protests particularly after the Shumaila Kanwal suicide. The beneficiaries would be the extremist elements who would unleash a reign of nationwide terror. There would be more violence, more suicide bombings, more target killings and the ongoing military operations against terrorist outfits would receive a severe setback.
Should the government stand firm and proceed with Davis’ trial, the consequences would be equally disastrous. The bitter truth is that Pakistan, which spends a trillion rupees more than it earns and has one of the lowest tax to GDP ratios in the world, is dependent for its survival on external assistance by far the biggest portion of which comes either directly from the United States or through American-controlled international financial institutions. According to Christine Fair of the Georgetown University, it is a pity that Pakistan, which has sufficient resources of its own, “must grovel at the table of the International Monetary Fund and other multilateral and bilateral donors.” If Washington were to terminate, or even curtail, economic and military aid, not only would the government collapse but the country would hurtle towards chaos and anarchy. In such an eventuality, the only winners would again be the terrorist groups.
There is however a possible face-saving way out of this situation. The Gordian Knot can still be cut but it entails initial compromise by Pakistan which can always be followed by decisive action to assert its sovereignty. The compromise lies in conceding diplomatic immunity to Raymond Davis as per article 37 (2) of the Vienna Convention. Islamabad would have fulfilled its obligations under international law because of the official notification by the US government that Davis is a member of the technical staff at its embassy in Islamabad.
The firm course of action would involve promptly declaring Raymond Davis persona non grata. Under article 9 of the Convention: “The receiving State may at any time and without having to explain its decision notify the sending State that the head of mission or any member of the diplomatic staff is persona non grata or that any other member of the staff of the mission is not acceptable.” If the sending state does not comply with this demand, the receiving state is not obliged to recognise the person as a member of the mission and may therefore initiate legal proceedings against him.
For such an outcome, Washington would also have to make concessions. Since it has claimed that Davis is a member of the technical staff at the US Embassy in Islamabad, it should apologise for the deaths its officials have caused. Second, it should give a public assurance that Davis and the persons in the speeding vehicle, if they are American nationals, will face trial in the US. If they are locally recruited, then they should be handed over to the Pakistani government so they can be brought to justice.
These measures have to be taken quickly. The longer the delay, the more intense the popular outrage is likely to become. Procrastination is not only the thief of time, but it also eliminates opportunities which usually exist only for a brief moment.
Having a trial for Davis in the U.S. is unwarranted, however, I see no reason why we could not have a face-saving judicial review of some sort, one that would no doubt find he acted in self-defense. (A Pakistani court would probably come to the same conclusion itself, absent the political pressures they would face if they tried Davis).
This strikes me as workable. The Pakistani government sends Davis home with a great harrumphing and a wag of its finger, the embassy sincerely apologizes for the loss of four lives, a review board in the U.S. finds that Davis was justifiably in fear for his life, and both governments tactfully avoid the subject of the driver of the second car.
It's got to work better than what we're doing now.