US experts in international relations, on the other hand, see the US standing up for international norms, and Pakistan flouting them. Given the gulf in how the two sides appear to be thinking about this, the issue has the potential to get uglier.
“Any other diplomat in the world that was in this position would have his or her government equally up in arms,” says Christine Fair, a South Asia expert at Georgetown University in Washington. “This is not American exceptionalism, this is the Vienna Convention.”
The Vienna Conventions spell out the details of diplomatic immunity. In broad terms, diplomats cannot be prosecuted under host country laws unless the home country waives their immunity. While the US has a history of declining some international treaties, in this case Washington appears to be championing a foundational rule of the international system.
“This is a context in which the US is very aggressively asserting international law, which is not the usual posture the US finds itself in,” says Peter Spiro, professor of international law at Temple Law School in Philadelphia. And, he adds, “it’s pretty clear the US is on the right side of the international law.”
Pakistan sees the case as anything but clear. Popular anger centers on a perception that Mr. Davis used excessive force in warding off two thieves, shooting them in their backs in January.
In legal terms, the nature of the incident matters little if Davis has diplomatic immunity. As Mr. Spiro puts it, diplomatic immunity is “absolute” and would even cover walking into a crowded hotel ballroom and opening fire.
There’s good reason for the rule, says Spiro. “One of the premises of diplomatic immunity is that there will be cases where diplomats won’t get a fair trial and they will become political footballs. And this [Davis] case clearly fits this trend.”
Shades of gray? What shades of gray?
More substantive critiques from Pakistani experts question Davis’s classification as a diplomat. Under the Vienna Conventions, there are different categories of employees, some with less immunity. These include low-level service workers and some workers attached to consulates as opposed to embassies.
The US introduced ambiguity into Davis’s role by its initial statements, which said Davis was employed at the Lahore consulate. State Department spokesman P.J. Crowley also said initially that "Raymond Davis" wasn’t the correct name of the man, eroding trust among Pakistanis that the current US story is the straight story. It also later came out that Davis was working for the Central Intelligence Agency.
Beyond US statements, Davis appeared to be operating out of a safe house in Lahore, damaging the credibility of the US line that he was an employee of the embassy in Islamabad.
“There was a lot of murkiness,” says Najmuddin Shaikh, a former Pakistani foreign secretary. But he says, that murkiness cannot be resolved strictly in terms of the Vienna Convention.
For Mr. Shaikh, the ambiguities will need to be worked out between the two countries as part of a political negotiation, not a legal ruling. Shaikh adds, however, that if Pakistan sought a legal remedy, “I think we would have a very strong case.”
US officials don't seem to see these shades of gray and view the case as clear-cut. In a background briefing last month, a senior US official said that Pakistan was notified on Jan. 20, 2010, that Davis was a member of the administrative and technical staff of the embassy in Islamabad. From that point on, according to Convention rules, Davis has diplomatic immunity unless Pakistan declares him “not acceptable.” They did not, according to the US.
“Once we notify, end of story,” said the official.
Looking for the graceful out
Yet the story has not ended and efforts to find a graceful end to the standoff have failed. Spiro says that one possible US olive branch – offering to criminally investigate Davis once in the US – isn’t even much of an option since it's doubtful he could be charged under US law.
In Pakistan, there’s discussion of offering “blood money” to the families of the two killed pursuers. But the brother of one of the men, Muhammad Faheem, rejects the idea.
“We have already said we won’t accept blood money. We will take our decision based on the will of the Pakistani people,” says Waseem Shamshad.
For Fair, the Pakistanis are simply throwing up a “legal loophole-a-palooza.” She sees the two pursuers killed by Davis as tied to Pakistan’s intelligence service, the ISI. Davis had been tracking Lashkar-e-Taiba, a terror outfit with ties to the ISI, and the agency decided to retaliate.
Not returning Davis is a move that could ultimately jeopardize congressional money to Pakistan, she says.
“This is actually quite serious because it demonstrates that Pakistan is not rule-bound. And because this is ISI versus CIA it brings into public relief the differences between the organizations’ goals and threat perceptions,” says Fair.
* Issam Ahmed contributed to this report from Islamabad, Pakistan.