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The current argument between India and America about diplomatic immunity is intriguing and it will be interesting to see how it ends. There might possibly have been improper prosecution in New York of an Indian consular official, Ms Devyani Khobragade, for an alleged misdemeanor. Or the allegations could be correct and her brief detention and charge of criminality could be totally justified. But the outcome will depend on who wins the present undiplomatic quarrel about her protection from prosecution on the grounds — so India claims — that she is a full-fledged diplomat and not just a consular official.
There are major status and legal differences between diplomats and consular people, but US policy on diplomatic protection has been known to alter a bit, according to circumstances.
It’s only two years since the CIA’s cowboy Raymond Davis killed two Pakistani citizens in the city of Lahore by shooting them in the back and whose claim to diplomatic immunity was upheld by President Obama. Davis was masquerading as a consular official, but Obama declared that “We’ve got a very simple principle here that every country in the world that is party to the Vienna Convention on diplomatic relations has upheld in the past and should uphold in the future, and that is, if our diplomats are in another country, then they are not subject to that country’s local prosecution.” Davis was no more a diplomat than Mickey Mouse. He was a trigger-happy Cowboy Intelligence Agency amateur spook who got away with murder because Washington arranged for payment of blood money to the victims’ families. After he killed the two young men he sent a message for rescue and a group of fellow spooks promptly barreled the wrong way along a road in an armored Land Cruiser and hit and killed a motor-cyclist and were promptly spirited out of the country in a US military aircraft to Afghanistan then back to the States. Obama didn’t say anything about them being diplomats, of course, and the whole thing was a tragic farce.
And six months after Davis got home he was arrested for having beaten up a man in a carpark and pleaded guilty in exchange for a two year suspended sentence and a court order to attend anger management classes. You couldn’t make it up. But it’s unfortunate he didn’t attend such instruction before he was sent to Pakistan.
Obama’s contention that diplomats should not be subject to a host country’s prosecution is correct. All diplomats are so exempt, no matter how appallingly they might behave, so the question seems to be definition of just who is a diplomat and who is not a diplomat, and the obvious indication of such status is that the person concerned has a diplomatic passport. Davis didn’t. Nor did the bunch of US hoods who killed the motor-cyclist. And nor did Ms Devyani Khobragade who the Indian press continue to refer to as “a senior Indian diplomat”.
The Vienna Convention is precise about treatment of diplomats in that they “shall not be liable to any form of arrest or detention,” and defines a diplomat as “the head of the mission or a member of the diplomatic staff of the mission.” Did Ms Devyani Khobragade (let’s call her ‘Ms DK’ for the sake of brevity) meet that criterion? Of course not : because Ms DK, like Mr Davis, was designated a consular official. No diplomats, they (as the old Time magazine might have had it).
The Convention on consular relations “guarantees immunity from the host country’s laws only with respect to acts related to consular duties.” But Ms DK was arrested on December 12 on a charge of falsifying documents concerning the visa application of an imported Indian domestic servant. The conditions of her detention were grim, but no more bizarre, brutal and unnecessary than those suffered by a US citizen detained on suspicion of wrongdoing.
In fact she was spared the humiliation of being handcuffed (unlike the grubby former head of the International Monetary Fund, Mr Dominique Strauss-Kahn (DSK), after he was arrested in New York on a sex charge and whose claim to diplomatic immunity was dismissed), but she was subjected to a strip search and disregard of any thought that the person being charged might be fragile in body or mind. It’s a nasty experience, because if you are thought to have stepped out of line in America there’s no compassion ; and Ms DK went through the works. And then India went to work, and that was terrible, too. Because the usually mature, dignified and sensible Republic of India behaved in an inexplicable fashion, lowering itself to absurdity in preposterous retaliation.
The charge against Ms DK was that in order to get an A-3 visa for a personal employee, which required attestation that the named person would receive a fair wage, she claimed in the application for her servant that that she would pay her $4,500 a month but did not pay her that amount, and had therefore made a false declaration. (Ms DK’s own salary is $4,200 a month.)
Her arrest and release on bail were entirely in accordance with American law. But then in a series of immature hissy-fits the Government of India went berserk in frenzied over-reaction, closely followed by the media and, of course, lots of other politicians.
The Washington Post reported that “India revoked the identity cards of US consular personnel and their families, rescinded airport passes, froze embassy imports of liquor and other goods, and began investigating salaries paid to Indian staff members at US consulates, as well as those teaching at US schools in the country.” Not only that, but protective barricades outside the US embassy in Delhi were removed. (There are photographs of this in international media.) Most actions taken to make things difficult for US officials were merely childish — pathetic playground stuff — but for a host government to permit removal of physical security protection from an embassy of any country is disgraceful to the point of criminal irresponsibility. The claim that they were removed because they were surplus to requirements — quite coincidentally and all of a sudden, when the Ms DK affair blew up — is as pitiful as it is patronizing.
Then the Speaker of India’s parliament refused to meet a visiting US Congress delegation and the likely next prime minister, Narendra Modi, tweeted that he “refused to meet the visiting USA delegation in solidarity with our nation, protesting ill-treatment meted to our lady diplomat in USA.” One newspaper reported that “there is also a suspicion that [the maid] might have been passing on vital information to the US,” but that particular piece of idiocy didn’t gain traction.
Then — surprise, surprise! — on 26 December, India’s Ministry of External Affairs came up with the revelation that Ms DK had all along been “accredited” to the Permanent Mission of India to the UN, located in New York and therefore had enjoyed full diplomatic immunity with effect from August 26, 2013. How amazing that this was discovered only two weeks after her arrest.
The affair has plunged into the gutters of bizarre fantasy and farce. India as a nation has made a fool of itself and it seems that its politicians and officials, aided by a ferociously xenophobic media, will continue to make futile efforts to defend the indefensible.
One splendid irony in this absurd circus is that the New York prosecutor involved in the DK case, Mr Preet Bharara, was born in Ferozepur in India. He is a highly intelligent and dedicated public servant who successfully initiated many cases against Wall Street insider traders and others involved in “quite substantial criminality and corruption.” He’s doing a great job in New York, although maybe he’s needed more in New Delhi, where he could inject some much-needed maturity. But he would need to be sure of immunity before he ever dared to try to set foot in the place.
Brian Cloughley’s website is www.beecluff.com