Deciding the Raymond Davis Case—By Principles or Realpolitik Stakes?

By Dr. Niaz Murtaza

In an earlier piece (Raymond Davis-Further thoughts) on the PTH, I looked mainly at the legal side of this case and argued that RD’s immunity depends on whether he is a consulate or embassy employee. In the first case, he does not have immunity. In the second case, he would still be liable for civil and admin jurisdiction in Pakistan though it is not clear what rights it will then give Pakistan over him. His actual status is complicated by the poor written communication between Pak and US prior to this incident.

I also argued that both countries should form a committee of renowned international jurists (from both western countries and some Muslim countries like Turkey and Malaysia). Pak courts lack jurisdiction, knowledge and international credibility over immunity issues. They only come in to the picture to decide the criminal aspects if he is declared a consulate employee.

However, many feel that this case may or should be decided on realpolitik rather than law. I argue that the best strategy is to still stick to the law and treat the realpolitik consequences as things that need to be addressed once the law takes its course. There are actually two sets of realpolitik consequences—the America reaction if he is not released and the right-wing reaction in Pakistan if he is released.

America could cut its $1.5 billion annual aid if he is not released. However, this is equal to only 0.8% of Pakistan’s GDP and around 3.75% of its federal budget. The first is minor, the second slightly more substantial. US aid helps in two ways: close the federal budget deficit and the external balance of payment deficit. The first impact can easily be covered through local domestic mobilization, i.e., curbing tax evasion, increasing taxes on the rich etc. The second cannot be overcome just by internal resource mobilization being in foreign currency. Fortunately, Pakistan’s external balance situation is very good at the moment with exchange reserves at historically high levels.

In addition, much of the aid gets wasted on US and its contractor’s overheads and mandated purchases from the US (sometimes as much as 50-60%). There have also been cases of major corruption by American contractors. The DC based Center for Global Development has also raised questions about the effectiveness of the aid programs. So a cut in aid will pinch somewhat but will not be catastrophic.

The US could also impose sanctions on Pakistan that restrict flow of trade, finances (FDI, remittances etc) and even people, as it has on Cuba, iran etc. It could also attempt to block IMF and World Bank loans for Pakistan. All this would definitely be catastrophic despite the leakages that exist in sanctions. It could lead to a severe economic crisis. This may lead to fall of the govt and perhaps even take-over by extremists in the worst case scenario.

On the other side, the right wing could hold huge demonstrations against the government if he is released. As shown by Taseer murder, Pakistani officials and American embassy staff and citizens may also be targeted. If the fury is too great, the govt may fall and extremists may take over. So ironically enough, the most serious consequences are the same whether Pakistan releases him or not, i.e., the threat of extremist take-over in Pakistan. And of course this will have consequences globally given Pakistan’s status as a nuclear weapon country and a springboard for global terrorism.

However, my own sense is that the chances of the occurrence of the worst consequences in either scenario are exaggerated and the actual outcome in either scenario will be much less severe.  The outcomes that have the most serious consequences have a low probability of occurrence and the outcomes that have a high probability of occurrence have much lower consequences. Let’s look at the likely consequences under each scenario.

The international committee could decide that he does not have immunity. In that case, Pakistan should not release him. What will then be the consequences? The right-wing threat will be neutralized and only the American threats will remain. What will America do once a committee with international credibility that it had itself agreed to gave this judgment? Will it apply sanctions? I really doubt it. I don’t think it will then even cut off aid. In fact, according to yahoo news on feb 17th, top congress members, such as Lindsay Graham, Kerry, Lowey and Leahy, are already discounting cutting off aid for the sake of one person given Pakistan’s critical geopolitical status.

The international committee could decide that he does have immunity. In that case Pakistan should make a request to America to waive his immunity and in the likely event that it is rejected, release him and follow up with criminal proceedings in the US. The main threat will then be the domestic right-wing one. Some of its wind will be taken out by the fact that an int’l committee including muslim jurists gave that decision. However, there will still be a backlash. It is extremely unlikely, in my opinion however, that it will lead to a fall of government or extremist take-over. What is more likely is the targeting of govt officials and American citizens and increased suicide attacks in general.

However, the main issue from my perspective is not tending to or being afraid of the sensibilities of extremists but to cater to the widespread anti-Americanism that has become so common among ordinary Pakistanis due to various reasons, some justifiable and some not.  It is in America’s own interests to address these grievances irrespective of which of the above two outcome happens. Some have suggested American compensation for the families. I think this viewpoint completely misreads the situation. The anger is fed by American arrogance, real as well as perceived. People’s prides are hurt. Against this background, America offers of money will just be seen as more American arrogance in assuming that people who have lost family members can be satisfied with dole-outs. Already two families have refused.

Others have suggested that Pakistan should ask for Affia to be released or for the drone attacks to be stopped. There are important differences between these two. Asking for Affia’s release is asking the US to overturn something which is legal under its system. Asking it to stop drone attacks is asking it to stop something that is of dubious legality under international law. Moreover, Affia’s case is about one individual in jail. Drone attacks involve the deaths of dozens of innocent Pakistani civilians. So, I am in favor of the second. If people have doubts about the Affia trial, the best recourse is an appeal.  To the drone attacks, I would also add asking for an end to the practice of undercover American spies roaming around with arms in Pakistan-again something illegal for any country even if it is unofficially condoned. In fact, with this incident, it will become difficult for them to do so in any case.

In summary, the best policy for Pakistan would be to decide by law and not realpolitik considerations. This is what principles dictate. Fortunately, in this case the realpolitik negative consequences of taking a principled stand are not catastrophic under either outcome, though should be and can be addressed through appropriate policy without compromising on principles.

In fact the above analysis reveals a most interesting point. Pakistan will attract America’s worst wrath if it holds on to Davis when in reality he has immunity, i.e., if it does not follow the law. Pakistan will attract right-winger’s worst wrath if it releases Davis when in reality he did not have immunity, i.e., again if it does not follow the law. This means that if it does not follow the law in either case, it neutralizes one party but attracts the worst wrath of the other party. If it follows the law, it again neutralizes one party but then does not incur the worst but a much lower level of wrath of the other party. In effect, following the law minimizes realpolitik considerations in either scenario. As such, the law and realpolitik considerations are not in contradiction but in consonance with each other in this case.

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