Raymond Allen Davis has been confirmed by the US government to be an officer of the Central Intelligence Agency. The main reasons for this confirmation are first, that the British newspaper the Guardian was able to establish this fact through the simple act of calling a television station in Colorado state where Davis and his wife have a residence, to ask why, for a brief moment, the stations website indicated that Mrs Davis gave a telephone number at the CIA when asked by a reporter for more information about her husband. (The television station confirms that official word from the US government interceded to have them remove this reference to the CIA from their websites report on the Davis case.) But second, to secure a stronger position that Davis has diplomatic immunity a special privilege that can be extended to officers of the CIA.
If Davis were proven to be as many people in Pakistan and elsewhere believe a military contractor paid by the US government but not a staff member of the US government, his chances of getting diplomatic immunity are more precarious.
As with all questions of law, there is much leeway, and interpretations of the semantics of the law and the exact conditions of the case could lead to all range of conclusions as to whether a foreign individual who has admitted to a crime such as murder will ever have to stand trial for that crime. Raymond Davis the military contractor, however, is in a weaker position than Raymond Davis the officer of the CIA. The Vienna Convention of 1961 to which Pakistan and the US are signatories leaves a massively vague interpretation up for grabs in its Article 37 which states that administrative and technical staff of a diplomatic mission also qualify for diplomatic immunity i.e., possibly, CIA officers. But even then, Davis isnt standing on solid ground.
While Article 38 states that the individual in question has immunity in respect of official acts performed in the exercise of his functions, it seems highly unlikely that the official acts of any US consular officer involve the circumstances and behavior that Mr Davis admits to engaging in on the day in question. Further, much of the possibility of claiming the immunity could vanish under the Conventions 1963 treaty on consular relations (to which Pakistan is a signatory, along with the earlier 1961 treaty, under Pakistans 1972 Consular Privileges Act) which states in Section II, Article 41 that exceptions to the immunities enjoyed by consular officers would be made in the case of a grave crime and pursuant to a decision by the competent judicial authority. Murder would qualify.
In the precocious history of CIA officers and diplomatic immunity, there have been several bumps along the road. Sometimes, as in the case of Hugh Francis Redmond, the US government did not out their CIA officer, but the Chinese government figured it out on their own and he died 19 years after starting a prison term in a Shanghai prison. Other times, the identities of CIA officers have been made public, as in the recent case of the 22 CIA officers who were tried and in 2009, convicted, in absentia, of extraordinary rendition from Italy of the local imam of Milan to Egypt. However, these 22 individuals will not be paying for the crime the Italians have convicted them of, though travel to Europe may be a bit of challenge for them.
As the legal jargon above indicates, the Davis case could easily be interpreted in a number of different ways. As such, the easiest solution to the Davis case and the one that will most likely be pursued, judging by the news that Davis will undergo trial in the prison in which he is being held is to simply go through the motions, allow a trial, and fail to convict him. That way, Pakistans judicial system will not have been disregarded and the US will be happy to secure his release. The question simply remains whether this will be enough to satisfy a Pakistani public that is already simmering with discontent over US activities within their borders. From the looks of it, both governments are willing to take that risk.
The writer is US-based political analyst and a fomer Producer for BBC and Al-Jazeera. Follow her on Twitter @ShirinSadeghi