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Revisiting relations with the US

March 26, 2011

ON March 16, the alleged American spy Raymond Davis, who gunned down two Pakistanis, was set free by the trial court in Lahore after he had paid blood money to the heirs of the deceased in accordance with the law of the land. The very next day a US drone strike in North Waziristan killed some forty-one people, the majority of whom were civilians, in blatant violation of international law.

While the release of the American has come in for sharp criticism at the hands of a section of society and politicians for allegedly being yet another instance of shameful surrender to Washington’s dictates, the drone strike precipitated an unusually tough reaction from the civil and military establishment. Both the Raymond Davis case and the drone attacks are a commentary on Pakistan-US relations.

Raymond Davis had killed two people in Lahore in what he called self-defence on January 27, 2011 and was immediately put behind the bars. From the very outset, the American authorities in Washington and its mission in Islamabad had maintained that being a diplomat, Mr Davis enjoyed complete immunity under the Vienna Convention on Diplomatic Relations of 1961 and therefore he should be released forthwith.

The Vienna Convention on Diplomatic Relations deals with the privileges and immunities of diplomats. Article 29 of the Convention states: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Article 31 adds: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” However, under Article 32, the immunity may be waived by the sending state (in the instant case the USA). Under Article 37, the immunity is also available to administrative and technical staff of the mission.

In addition to the Vienna Convention on Diplomatic Relations, there is also the Vienna Convention on Consular Relations, 1963, which defines the privileges and immunities of consular officers. Article 41 (1) of the Convention states: “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.” Article 43 adds: “Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.”

The above provisions show that whereas the immunity available to diplomats is complete, that of a consular officer covers only the acts performed in exercise of consular functions and certainly does not extend to “a grave crime.”

It follows that if Mr Davis was a diplomat or a technical or administrative officer of the American mission in Islamabad, he could not be arrested and tried on any ground including homicide. On the other hand, if he was merely a consular officer, he did not enjoy immunity on the charge of homicide. Therefore, the important question was whether Mr Davis was a diplomat. Article 1 (e) of the Vienna Convention defines a diplomat as “the head of the mission or a member of the diplomatic staff of the mission.” Under para (d) of Article 1, the members of the diplomatic staff are the members of the staff of the mission having a diplomatic rank. Did Mr Davis have a diplomatic rank?

The question was to be settled by the Pakistan government — ministry of foreign affairs to be precise. Both the above referred Vienna Conventions have been incorporated into the Pakistan’s domestic legal regime vide the Diplomatic and Consular Privileges Act of 1972. Section 4 of the Act provides that If any question arises whether or not any person is entitled to any privilege or immunity under the law, “a certificate issued by or under the authority of the Federal Government stating any fact relating to that question shall be conclusive evidence of that fact.”

However, despite passage of one and half month, the foreign office did not come up with a categorical response affirming or denying whether Mr Davis was entitled to diplomatic or consular immunity under the Vienna Conventions and the domestic law. In all probability, the American was not a diplomat, otherwise the government would not have wasted a moment in declaring the immunity available to him. This is corroborated by the statement of former foreign minister Shah Mehmood Qureshi that the record available with the ministry did not confirm diplomatic status of Mr Davis.

The Foreign Office’s dilly dallying over the diplomatic status of Mr Davis sum up the basic character of Pak-US relations. Pakistan is a politically unstable, economically fragile and aid-addict country, which needs American capital as well as goodwill of multilateral donors to meet its widening current account and fiscal deficits and keep the wheels of the economy moving. On the other hand, the US, the globe’s sole superpower, needs Pakistan to win the war against Al Qaeda and its affiliates — the foremost item on Washington’s national security agenda.

When a politically and economically vulnerable country like Pakistan is so vital to the national security of a superpower, the logical result is increased interference in the domestic affairs of the former ranging from governance to the macro management of the economy.

Besides, we, the Pakistanis, have the incorrigible habit of looking to foreigners — mainly but not merely Americans to be sure — to settle domestic political issues thus inviting and re-inviting external intervention. Contrary to what they may state publicly, our leadership, elected or unelected, wearing the garb of democracy or in uniform, religious or secular, leaves no stone unturned in courting American friendship and good-will.

Hence, in the instant case, from the very outset both the federal and Punjab governments sought to shift responsibility on each other as neither wanted to annoy either Americans or the public. In the end, courtesy another Muslim country, an ‘amicable’ solution to the problem was found and Islamic law was used to let Mr Davis off the hook. However, the fundamental question regarding the status of Mr Davis — a spy, a diplomat or a consular — remains in the dark.

Raymond Davis had killed two Pakistanis and the case may be treated as a past and closed transaction. However, hundreds have been perished in drone attacks. The matter has repeatedly been taken up with Washington at the highest level and on each occasion Americans have assured to respect Pakistan’s sovereignty and our leadership pledged to safeguard the motherland’s territorial integrity at all cost. Yet it is unlikely that the strikes will come to a halt, as they form an important part of the implementation of US counter-terrorism strategy.

How can a country repeatedly violate the sovereignty of another in violation of international law and the UN Charter, kill its people and get away with that? The answer is that states differ in their capacity for and susceptibility to foreign interference. Whereas some states pursue remarkably independent policies, others are sovereign in name only and in practice are no more than satellite states. Generally, the more powerful a state, the more sovereign it is. Hence, in practice, state sovereignty is manifested in national power taking all its elements into account. In the end, a state must be capable of protecting its sovereignty.

Is Pakistan capable of that defence? Our nuclear power status coupled with a massive military might have constituted a strong deterrence against US raids in our territory. But we need to look at other elements of national power in which we are deficient. Undoubtedly, the economy is the Achilles’ heel. Decelerating economic growth, growing fiscal and current account deficits and falling levels of investment and savings mean that the economy is in a dismal situation and in dire need of foreign capital. An economy too weak to walk without the crutches of foreign assistance is a drag on national power and hence sovereignty.

There is no dearth of political leaders who aver that Pakistan should break the begging bowl and take bold decisions notwithstanding the state of the economy. Some even maintain that Pakistan should go to war against the US. Every nation, no doubt, has to take some bold decisions. But such decisions require a credible leadership — another element of national power. Do we have such leadership? Do we have leaders who can stand by the people in their hour of trial, who can share their enormous wealth with the masses, and are ready to part with their privileged position in society?

It is a nice political slogan that the nation should prefer eating grass to begging for foreign assistance. But who will eat grass? The leaders who say this have a most luxurious lifestyle, which will make even the richest in the developed world envious of them, live in palatial houses, drive in imported bullet-proof cars, and have scores of gun-totting body guards. A country can hardly take bold decisions when such leaders — on either side of the political divide — are around.