In the city of Lahore, Pakistan on January 27, 2011, a 36-year old American CIA contractor named Raymond Davis was charged with double murder in the deaths of two Pakistani men, Faizan Haider and Fahim Shamshad. Newspaper accounts describe Davis firing his gun at two men on motorcycles whom he believed were armed and attempting to rob him as he stopped his vehicle at a traffic signal. At the same time, reports place another US employee driving a truck nearby; in his rush to rescue Davis, this American hit and killed a third passing motorcyclist. The driver of the truck somehow managed to leave the country but Davis was unable to disappear from what escalated into a tense international and legal incident between Pakistan and the United States.
According to the Washington Post, “Davis has spent much of the past two years working as part of a group of covert CIA operatives, whose mission appears to have centered on conducting surveillance of militant groups in large cities, including Lahore.” [1] Davis claimed self-defense as the victim of a botched attempted robbery. He also insisted on his right to diplomatic immunity. Pakistan’s lower court rejected his immunity since no prior documentation attested to any protected diplomatic status. A Lahore trial court judge concluded that Davis’ actions constituted intentional murder based on police investigations of ballistics and witness testimony. According to newspaper accounts, the matter was resolved when the families of Davis’ two victims — nothing is reported about the truck driver’s victim — agreed to receive compensation totaling close to $2.4 million, even though the source of the money remains in dispute. Secretary of State Hillary Clinton declared in interviews that the US government did not pay anything. On March 16, 2011, Davis was released and it seems that most of the victims’ family members as well as Davis left Pakistan. The grieving wife of one of the slain Pakistanis, however, is said to have committed suicide, declaring: “Blood for blood.”
In order to spring Davis, did the US deploy the mechanism in Islamic law called diyat, a term that translates as “blood money”? If so, it was an interesting turn of events given the attempts of some states and municipalities to promulgate anti-shari‘a laws. In 2010, for example, Oklahoma voters passed State Question 755 (or “Save Our State”) to block the remote possibility that shari‘a would be applied in that state’s courts. Oklahoma’s version was eventually ruled unconstitutional, but in the Davis case it seems that the US and the CIA looked to shari‘a to free an American spy abroad. Money paid to Davis’ victims was not determined by international protocols for reparation but instead allocated through diyat. Diyat is enshrined in Pakistan’s penal code, demonstrating the ways in which tenets of shari‘a intersect with criminal justice and judicial process in Pakistani law: A victim is permitted to pardon a murderer through a determination of actual or symbolic “blood money” payments. It is important to note that according to Pakistani law, pardon by the victims’ families can only take place after a court decides on a murder conviction: Davis had stood trial in a Pakistani court and was convicted of murder before the victims’ families could contemplate diyat.
The presence of aspects of shari‘a in contemporary legal systems of Muslim-majority states varies from country to country. Civil codes, not Islamic ones, often regulate damages and indemnities by relying on tort law. In fact, shari‘a provisions may or may not be present to deal with reparations and damages under the general rubric of diyat, in which involuntary manslaughter clearly calls for compensation, while voluntary manslaughter may include the perpetrator’s flight or family vengeance. The intent of diyat, achieved primarily through reparations, is to avert private vengeance yet restore public order and social accord at the local level. It is not meant solely as an indemnity payment to victims while absolving the guilty. In Pakistan, certain crimes of violence between persons, for example murder, can be transformed by recourse to diyat into crimes between individuals, during which proceedings the state withdraws from the role of representing the victim. In contrast, in the American legal system absent diyat, the state represents “the people” against the alleged perpetrator. Diyat bought the life of Davis, if that is his real name, but it was never envisioned as a mechanism to settle disputes between sovereign states.
Critics of CIA operations throughout the world view this deployment of diyat as the latest example of wealthy America killing Third World civilians with impunity. By refusing Davis diplomatic immunity and pursuing criminal justice, Pakistani law transformed his murderous actions into an incident of interpersonal violence eligible for diyat, as opposed to an instance in a pattern of American state perpetration of violence throughout the region. The move to fudge and obscure American state violence as the aberrant acts of individuals is characteristic of the US overseas presence, whether in clandestine or official military operations. For example, data about annual US payouts for so-called accidental shootings of civilians, especially in Iraq and Afghanistan, remain incomplete. Based on information forwarded from the Department of Army under the Freedom of Information Act in 2007, the American Civil Liberties Union compiled a partial record of Pentagon payments that totaled $32 million for the years 2005-2006. Although often limited to $2,500, amounts were offered “as an expression of sympathy” but “without reference to fault.” [2] Most descriptions of the civilian deaths in the ACLU sample end with the chilling phrase: “No statements from Iraqi witnesses were taken.” [3] In other words, the wads of cash were neither reparations nor even blood money but a Pentagon-approved system of “condolence” payments to silence victims and hold no perpetrator accountable.
Compare these Iraqi civilian deaths to the outrage of families from the 1988 Lockerbie airplane bombing that killed 270 people. In response to the 2003 Libyan government offer of compensation, many of the victims’ families cried “blood money.” If the principle is that offenders who pay money to resolve murder cases are making a clear and public admission of guilt to the surrounding society, then Libya and the Pentagon are counter-examples. For Libya the price for lifting international sanctions prompted payments of approximately $8 million to each family while Libya denied guilt. Mustafa ‘Abd al-Jalil, Libya’s former minister of justice, who resigned to head a coalition of oppositionists, now claims that Muammar Qaddafi personally ordered the Lockerbie bombing.
When a government, as opposed to an individual, commits wrongs against a group, money emerges as the potent remedy to restore justice. In all its varied meanings and typologies, the term “reparations” is a preeminent remedy for state-initiated violence. The 2005 UN guideline on remedy and reparation extends the reach of reparations as a remedy to encompass restitution, compensation or indemnity, rehabilitation, and satisfaction and guarantees of non-repetition. Yet participation in such monetary remedies is often described as the calculating, materialist, instrumental monetization of sufferings. Money received through some sort of reparations is “morally earmarked,” following sociologist Viviana Zelizer’s description: “In everyday existence, people understand that money is not really fungible, that despite the anonymity of dollar bills, not all dollars are equal or interchangeable.” [4] In many historical and legal cases, financial reparations have been morally earmarked as “dirty,” as sullied money, and labeled negatively in diverse cross-cultural settings as “blood money.” In contrast, anthropological theories have long posited a progressive evolutionary model from blood money to reparations, an evolution from retaliation in kind to monetary payments, according to which feuding communities without compensation mechanisms evolve into advanced societies with blood money payments that exclude the retaliatory lex talionis, an eye for an eye, the latter called qisas in Islam.
Anthropologists have long noted blood money and retaliation as conjoined processes in many societies throughout the world. The final stage of sociocultural sophistication, according to anthropology, occurs when a supra-juridical body is established, such as the tribal assembly or a court to adjudicate damages and specify blood money in cases of death, rape, and violent disputes. Thus, for victims to refuse financial compensation precisely because it is blood money is to remain mired in the primitive stages of perpetual feuding, revenge, bitterness and savagery.
But by her suicide and refusal of US blood money, by the depth of her grief, the widow of Raymond Davis’ victim made clear her protest against any buyoff because reparative values are also attached to the source of money. There is a morality to funding sources and the recipient is the party who sets the moral standards. The terms of reparations — for whom, for what purpose and by which monetary calculations the crimes of murder and manslaughter are delineated — but also the institutional disbursing agent matter profoundly.
As US drone-borne missile strikes pummel Pakistan and Afghanistan, causing collateral civilian damages and deaths, leaders in Muslim-majority countries seek recourse in international law by pointing to American actions as violations of humanitarian norms and laws. They do not demand blood money through the Islamic dimension of their societies embedded in meaningful cultural and legal traditions. So-called collateral damage to civilians ranges from the violent responses of Raymond Davis against the local population in which he was embedded as a CIA operative to the US military in Afghanistan, Pakistan and Iraq. They are evidence of large-scale US government actions and must be compared with other types of violence, even those adjudicated by diyat, precisely because they draw on the mechanism of cash payments. In all these cases the US is the perpetrator state even though, in the Davis case, diyat appears to push both the Pakistani and the American states outside a relationship of violence in favor of monetized solutions between individuals.
In this way, the United States has responded and adapted to the asymmetric nature of the declared wars on terror by invoking local legal practices such as diyat, which coincidentally overlap and already share the financial features of the US military practice to dispense derisory cash payouts to Afghan and Iraqi civilian victims. Legal scholar George Bisharat describes the ability of states to reconfigure and integrate new forms of violence into the law as “legal entrepreneurialism.” [5] The adage “might makes right,” Bisharat concludes, encourages government ambitions to incorporate violence into the law. An egregious example was the 2002 “torture memos” by then Deputy Assistant Attorney General John Yoo and collaborators in which torture is legally permissible under new and expanded interpretations of presidential authority in the era of the “war on terror.” Arguably, by widening the possibility of buyouts for killing civilians while eliminating Pakistan’s diyat provisions of a trial and conviction, the ad hoc character of US payments is driven more by political than legal imperatives.
Perhaps, if nothing else worthwhile emerges from the Davis case, future victims and their families should consider blood money as one possible economic and legal sanction and elevate it internationally in the form of economic reparations between states exacted for examples of destruction and death by US drones. As many more Raymond Davises roam the region, recent WikiLeaks — notably the 2007 “JTF-GTMO Matrix of Threat Indicators for Enemy Combatants” files on detainees held in the US military prison at Guantanamo Bay — reveal that those in charge at the prison included Pakistan’s Inter-Services Intelligence (ISI) directorate on their list of some 65 “terrorist and terrorist support entities.” Regardless of various laws and competing legal systems — the 1961 Vienna convention on diplomatic impunity, criminal law, reparation protocols, international human rights law or shari‘ — the partnership between two like-minded organizations, the CIA and the ISI, remains unbroken. The Davis case, the killing of Osama bin Laden and ongoing US drone strikes, may momentarily halt coordinated efforts, but money flows channeled to the ISI by the CIA since September 11, 2001 continue unabated. Are these funds hush money, compensation, “condolence” payments, diyat?
Endnotes
[1] Washington Post, February 22, 2011.
[2] The information can be found at the American Civil Liberties Union’s dedicated website, “The Human Cost: Civilian Casualties in Iraq and Afghanistan,” accessible at: http://www.aclu.org/human-cost-civilian-casualties-iraq-afghanistan.
[3] See the list of payments at: http://www.aclu.org/natsec/foia/log.html.
[4] Viviana Zelizer, The Social Meaning of Money (Princeton, NJ: Princeton University Press, 1997), p. 5.
[5] George Bisharat, “Law’s Violence,” lecture delivered at UCLA, April 20, 2011, available by podcast at: http://www.international.ucla.edu/cnes/podcasts/article.asp?parentid=120844.
