Investigators and experts are the opinion that under investigation American involved in the murder of civilian in Lahore was in Pakistan on visit visa and not on a diplomatic assignment does not qualify for immunity from prosecution.
By Hamid Waheed
Pakistan and America, the front line coalition partners presently having maximum resources and in future having optimum stakes in the war against terror, continue to work under an environment of increasing mistrust. Three stakeholders among both countries the government, the army and the people hoping for a better tomorrow are pulled back to more confusion by daily happenings. An invisible hand plays intelligent and uses elements from within these stakeholders to increase mistrust and achieve their agenda. Whereas it is of importance for Pakistan to be careful, the responsibility mainly lies on the US to closely monitor its actions which have much larger implication not only for Pakistan but for the region and on the international forum. The perceptions are built on half truths and are reinforced after failure to timely satisfy the three stakeholders. The terrorists derive their power through unity and synergise their efforts, whereas coalition partners keep distancing from each other in this battle of hearts and minds. Pakistan continues to live in an atmosphere of working relationship with a partner who is more of a boss. A boss which only has its own objectives and goals to pursue and the ethics and rule of game are there to only benefit the boss. The recent incident of killing three Pakistani citizens by an American Raymond Davis living in US embassy on short-term entry visa and handling of same by US embassy is not the first of its kind. The US embassy has asked Pakistan to hand over Raymond Davis to US and provide him with diplomatic immunity. Diplomatic immunity is a form of legal immunity and a policy held between governments that ensure that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country’s laws. It was agreed as international law in the Vienna Convention on Diplomatic Relations (1961). Many principles of diplomatic immunity are now considered to be customary law. Originally, these privileges and immunities were granted on a bilateral, ad hoc basis, which led to misunderstandings and pressure on weaker states. Various international agreements known as the Vienna Conventions codified the rules and agreements, providing standards and privileges to all states. It is possible for the official’s home country to waive immunity; this tends to happen only when the individual has committed a serious crime, unconnected with their diplomatic role. Alternatively, the home country may prosecute the individual. Raymond Davis stated that he shot and killed Pakistani citizens in self defence as they were poised to rob him. Self-defence has long been discussed and debated among international legal scholars. Although the text of Article 51 explicitly provides only for “the inherent right of individual or collective self-defence if an armed attack occurs,” over the years, scholars have expanded the required trigger for self-defence to include both when an armed attack occurs and when an armed attack is imminent. The legal definition of “imminent” has grown out of an 1837 incidents in which British troops attacked the ship Caroline, which US citizens were using to take supplies to Canadian rebels fighting the British rule. In a much-quoted analysis of the confrontation years later, the then-Secretary of State, Daniel Webster argued that the use of force in self-defence is justified when the need for action is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Webster’s criteria subsequently became the standard in international law. Moreover, shooting in self-defence is logical to bodily harm and make him ineffective for some time. If you kill, you will go to prison for either manslaughter or a second-degree murder. In the regional context such twisting of self defence was also applied in September 2010 when NATO helicopters based in Afghanistan carried out at least two airstrikes in Pakistan that killed more than 50 persons after the insurgents attacked a small Afghan security outpost near the border. NATO justified the strikes based on “the right of self-defence.” On issue of drone attacks a law professor at the University of Notre Dame, Mary Ellen O’Connell, argued that the drone strikes were completely outside the law of self defence. Talking at a leading London think-tank ‘Chatham House Centre’ she said the pursuit of al-Qaeda and Taliban extremists should be a law enforcement issue, not a military one. “The strongest conclusion is that there is no legal right to resort to drone strikes in Pakistan, Yemen, Somalia and elsewhere where the US is not involved in armed conflict.” She was particularly critical of strikes by the US Central Intelligence Agency in the north-western tribal zone of Pakistan which borders Afghanistan. Contrary to the above, in case of Dr. Aafia Siddiqi, she was arrested and taken to an Afghan police station where four Americans – two military and two FBI agents – rushed to “question” her through interpreters. The FBI and military claim that they were taken to a room that had a curtain at one end and that they did not know that Dr Siddiqui was lying asleep on a bed at the other side of the curtain. They entered the room and one of the military persons said he laid his weapon down. Dr Aafia got up, grabbed the weapon, yelling obscenities and that she wanted to “kill Americans, she fired the rifle twice, missing everyone in the small room - in fact she even missed the walls, floor and ceiling since no bullets from the rifle were ever recovered. Then one of the Americans shot her twice in the stomach “in self-defence.” She was convicted by a jury and sentenced to 86 years. After 9/11, globally there have been numerous false “terror” alerts leading to the capture and torture of hundreds of innocent individuals. It is hard for the world to believe that Colin Powell paved the way for the invasion of Iraq on faulty intelligence. In the regional framework the three stakeholders on Pakistan side PM Gilani, COAS Kayani and Pakistani public face an uphill task to convince each other and synergize efforts in war on terror. Strategically they see disparity in US civil nuclear policy and carry concerns over US understanding of future Afghanistan. In handling of Raymond Davis like issues they find heart breaking and mind boggling US policies. The US and Pakistan must understand that its war of hearts and minds and success only depends in mutual understandings which will come through sincere actions.