Raymond Davis, a United States national, killed two Pakistanis in Lahore on January 27, 2011 — allegedly in self-defense. According to BBC news:

An American official in the Pakistani city of Lahore has shot and killed a Pakistani motorcycle rider and his pillion passenger, police say.

They say that the consular employee fired his pistol in self defence. US embassy officials confirmed that an American was involved.

The men were pursuing the American in his car when the incident happened. A pedestrian was also killed by a speeding car from the US consulate which came to help, police say.

The incident sparked anti-American sentiments in Pakistan and became an issue of public interest in political circles and the media, both in Pakistan and the United States. Raymond Davis was charged with murder by the Pakistani police and was incarcerated in a local jail. A criminal case was instituted against him in a trial court in Pakistan.

The Raymond Davis case had the potential to become a major foreign policy issue between Pakistan and the United States. The resolution of the issue was compounded by subsequent media reports that Raymond Davis was a CIA agent who was on assignment at the time of the double murder. In the ultimate analysis, however, this would not have mattered if he had diplomatic status because spying by a diplomatic agent is one of the criminal offenses covered by diplomatic immunity. According to established practice, an apprehended diplomat may either be transferred by the sending State or be declared persona non grata by the receiving State.

The United States actively sought the release of Raymond Davis, claiming that he had diplomatic immunity. Efforts were made at the highest levels of government in the United States for his immediate release. President Barack Obama called Raymond Davis “our diplomat” and urged his release on the ground of diplomatic immunity. Senator John Kerry, Chairman of the U.S. Senate Committee on Foreign Relations, made a special trip to Pakistan to secure Davis’s release. In an effort to facilitate the resolution of the issue, Senator Kerry indicated that the U.S. Department of Justice would investigate the shooting if Raymond Davis were released. But, while Senator Kerry made this conciliatory gesture, another member of the U.S. Congress introduced a provocative resolution in the U.S. House of Representatives calling on the Government of Pakistan to release Raymond Davis. This resolution, which was submitted to the Committee on Foreign Affairs, resolved “[t]hat the House of Representatives calls on the Government of Pakistan to release Raymond Davis in accordance with international standards of diplomatic protocol and, until such time, all United States monetary assistance to Pakistan should be frozen.”

While keeping tight-lipped about its position on the question of immunity, Pakistan sought to explore alternative dispute settlement mechanisms to resolve this diplomatically sensitive and politically explosive matter. Addressing the issue at the highest level, the Prime Minister of Pakistan, Yousaf Raza Gilani, left the matter to be decided by the court, but he suggested that it could be resolved under Islamic/Shariah law if compensation were offered to the families of the victims killed in the shooting.

Following this latter route, the Pakistani trial court resolved the case by applying Islamic law principles that allowed Raymond Davis to be released after the heirs of the victims were compensated. Even though the matter has been resolved privately through this compensation scheme, the handling of the Raymond Davis case has generated a lot of controversy and the outcome is not generally accepted by the Pakistani public, which still seeks answers to the host of issues — both factual and legal — about Raymond Davis’s official status and immunity, if any, arising therefrom. The unresolved issues are:

(1)   Whether Raymond Davis was simply a contractor assigned to the U.S. Consulate in Lahore or Embassy in Islamabad?

(2)   Whether Raymond Davis was a consular officer or an employee or member of the consular staff?

(3)   Whether Raymond Davis was a diplomatic agent or a member of the administrative and technical staff?

(4)   What was the applicable law under the circumstances?

(5)   What is the necessary and proper legal process for dealing with diplomatic or consular immunity in case of criminal offenses?

(6)   Who is empowered to grant immunity under Pakistani law — the executive or the courts?

(7)   Does the United States have any obligation or liability for the criminal offense committed by its diplomatic and consular officers and employees?

(8)   Should the United States have waived immunity in view of the seriousness of the offense? Alternatively, should Pakistan have requested such a waiver?

(9)   Whether and to what extent the U.S. Consulate or government is responsible or liable for the additional death of the pedestrian who was also allegedly killed by a speeding car from the U.S. Consulate, which came to help?

This Essay is intended to provide general comments on the issues raised above in light of the information available in the public domain. The first three issues deal with the factual determination of Raymond Davis’s status, which is necessary for the identification of the applicable legal regime. The next five issues deal with the elucidation of the applicable law and legal process necessary to give effect thereto. The last issue raises problems that have not been dealt with in this Essay and would need to be considered separately.