America’s one-sided application of diplomatic law

by Ramesh Thakur

George Orwell, where are you when your country of birth needs you? Consider two cases of consular officials two years apart. One shoots and kills two locals, the other pays her nanny wages below local minimum but above home rates.

The same U.S. president insists on diplomatic immunity for the first but stays silent on the second. Had host-country law prevailed, the first — Raymond Davis, a CIA contractor in Lahore, Pakistan — could have faced the death sentence. Instead he was brought home without trial. Then-Sen. John Kerry went to Pakistan to appease its anger. The U.S. media managed to contain its outrage on his victims.

The second — a female career diplomat, not an intelligence agent — is strip- and cavity-searched. The U.S. media are oh so touched by the plight of the poor maid and the sanctity of the law of the land. No apology from Kerry, now the secretary of state. Guess which country they accuse of hypocrisy? Yes indeed, the second one, India. And praise which for standing up for the rule of law that must treat everyone equally? Yep, the good ole USA.

There are three complex issues but three simple points.

First, there is a history to the status, wages and work conditions of India-based domestic staff employed by Indian diplomats abroad. What constitutes fair wage; can monetary value be put on perks like free housing, board, health benefits and annual return passage home; and is this matter to be decided by the home or host country, using whose benchmarks?

Some domestic staff are cruelly treated; some are seduced by job opportunities in rich countries. In the absence of physical mistreatment and given how the maid’s family was spirited out beyond the reach of India’s legal system, there are suspicions about the motives of a politically ambitious district attorney in search of populist publicity.

Second, there are different Vienna conventions dealing with diplomatic and consular relations. Their distinctions have become increasingly blurred in practice with growing cross-linkages of functions and personnel. The meaning and applicability of relevant clauses to any particular dispute may be interpreted differently.

The sniffy U.S. reaction to the explosion of Indian anger, that Devyani Khobragade was treated like anyone else, has a fatal flaw. She is not just anyone, but the official representative of a sovereign country. Her arrest and treatment was a full-frontal assault on the authority and dignity of the state of India. The whole point of both Vienna conventions, distilling centuries of experience among international political actors, is to prevent local authorities from fabricating false charges against accredited representatives of foreign governments.

But I forget. The United States is uniquely virtuous, exceptional and wise. All others are venal and must be stopped from maliciously interfering with resident U.S. officials, even killers. The Vienna Convention must be upheld for U.S. diplomats abroad but may be ignored for foreign diplomats in the U.S. Washington’s interpretations of all clauses are beyond question and it has the might to enforce it. If others don’t like it, tough.

Third, which country’s laws and judicial process have primacy?

There was a prior case in the Indian courts against Sangeeta Richards, which the self-righteous promoters of the rule of law have conveniently ignored. India kept Washington apprised of every legal step.

Did the then-CEO of Union Carbide face his day in court for the 1984 Bhopal gas tragedy — the world’s worst industrial accident in which between 2,259 and 16,000 Indians were killed? Strict adherence to the rule of law for everyone is a bedrock American value — yeah, right.

In a spirited public intervention on Dec. 19, the U.S. prosecuting attorney insisted that it’s his duty to protect Richards’ civil rights and enforce U.S. law on anyone who breaks it. He explained the reason for “evacuating” Richards from India two days before Khobragade’s arrest was to neutralize efforts to silence the Richardses and compel Ms. Richards to return to India. He impugned the integrity of India’s judicial system, yet it has a better track record of robust independence from the executive than the U.S. judiciary.

Matching the Bush administration’s practice of kidnapping people from anywhere in the world and renditioning them for torture in secret locations, Bharara proclaimed an extraterritorial right to evacuate an Indian citizen from Indian territory, against the directives of the Indian government and in defiance of court orders. He might have left himself open to contempt citations.

All three issues are complicated and open to contrary interpretations. India might be in the wrong (or right) on all three. It certainly has much to be ashamed of on persisting feudal practices. Regardless, as the first simple point, it is unacceptable for one party to resolve an intergovernmental dispute by criminalizing the conduct of an individual diplomat caught up in the mess, stripping her and subjecting her to bodily searches over a labor dispute.

Khobragade is not a suspected terrorist, an armed criminal or a threat to public safety. (Revelations about questionable incidents involving her back in India are irrelevant to this narrative.) In an Orwellian euphemism, state-sanctioned rape (digital penetration without consent or under coercion) is called “cavity search.” Sorry, I forget. Indian social practice bad, U.S. police practice good. Silly me. Smack!

Second simple truth: Diplomatic relations are governed as much by tacit understandings as formal rules. Few U.S. consular families would not be in breach of some Indian law. If the strict letter of the law was applied worldwide, diplomatic intercourse would grind to a halt.

Finally, Diplomacy 101. India is one of the very few countries where, against decades of instinctive hostility, public approval ratings of the U.S. have stayed positive. The episode risks setting back bilateral relations by validating many negative perceptions of the U.S.

The entire Indian foreign service bureaucracy — the permanent custodian of India’s permanent interests — has been antagonized by a colleague’s traumatic experience. As U.S. relative power wanes, is it worth breaking trust with a growing number of friends and allies?

The foreign minister has said the world has changed and so has India. Delhi has demanded formal U.S. apology and unconditional release of Khobragade.

If Washington insists on saving face and not admitting its mistake, a soured India will likely withdraw all extra courtesies to U.S. officials beyond legal requirements, to the detriment of their ability to function most effectively.

Ramesh Thakur, a professor in the Crawford School of Public Policy, Australian National University, is coeditor of “The Oxford Handbook of Modern Diplomacy.”

  • Sarah Morrigan

    Usually diplomats are allowed to bring in their own servants without regard to host country’s domestic laws, not? I bet American ambassadors do exactly that. When Russian diplomats are accused of U.S. Medicaid fraud in New York City no one got arrested because of diplomatic immunity, but when it comes to that lady from India, the government claims that diplomatic immunity only applies to official duties. Double-standard? You bet. Racism, you bet. This is the reality of the United States of America and its public policy. Americans get to do anything they want anywhere in the world. UN and international obligations only apply to “them,” not “us.” White people get away with mostly anything, while people of colour are jailed for the same or lesser offences. God bless America, indeed.

  • netizen2010

    Expecting an apology is pipe dream. Americans are too small hearted BULLIES for that. Wait for a few days, more likely they will look for “leverage points” to bully India again. But you are right, come what may India cannot yield on this issue.

    Americans think God appointed them to be custodians of the
    rest of the world and they are above all others. Besides the Raymond Davis case, the internet is afloat with literally hundreds of cases where Americans violated international laws and local laws and demanded immunity and got away without prosecution.

    You should also write a column about Indian leaders
    including Sonia Gandhi being issued court summons in New York!! Can an Indian file a law suit in Delhi Court or a Chinese citizen file a law suit in Beijing court against Collin Powell on Weapons of Mass Deception?

    Good time for Indians to shed silly notions and grandiose
    talk about democracy, shared values and silly empty rhetoric. Case for human trafficking of the maid is outlandish.
    Ambassador Nancy Powell’s rather undiplomatic act in assisting “evacuation” of Indian citizens from the capital of India should jolt Indians to realize how much contempt the State dept has for India, its judiciary, its society.

    India should work with Russia, Japan, Iran, and even China. Focus
    on economy, no grandiose beliefs on being “allies” of the USA.

  • RussellTwist

    The latest revelation states that the consular official did have diplomatic immunity at the time of arrest, being in an adviser role to the UN.

    Regardless. The friend count for US is not exactly on the rise. India is a friend of US. A very submissive friend. Even if there is a gross violation on the part of a consular official of a friendly country, there are ways to deal with it. As long as, the violations are not criminal.

    Based on the statements of the consular official’s attorney, it does not seem that there is anything illegal done. There is also the maid who wanted to have the green card at any cost.

    It surprises me why the US would do such a thing to a friendly country. In contrast, the american embassy officials in New Delhi are treated as VVIPs. But, it might change in future as India begins to realize that they have been spineless all these years.

    Any strain in bi-lateral relations is not good for both countries.

    • IAF101

      In diplomacy there only permanent interests. Apparently for the USA, self righteous grandstanding is one of them.

  • AmIJustAPessimistOrWhat?

    At first I was really upset that the US took the unprecedented step of physically arresting a diplomat when there are many other non-physical options with international precedence: negotiation, complaint, arrest warrant without arrest, refusal of re-entry, expulsion.

    But it turns out she is married to a US citizen living in the US (an unemployed philosopher of wine tasting, I kid you not). Eventually she would have used her husband to get a green card and reside in the US. If they had been honest sincere people it could have been a beautiful bridge between our cultures. But she brought the maid from India and signed the contract, not her husband, in order to cheat the system. Trying to get the best of both worlds. She was treated as “one of US” for a legitimate and urgent reason.

    • Samuel J

      What ever you say may be true.In the present case as a representative of a proud country like india, this insult is been felt by the common Indians.So the cost of the disasterous unilateral decision is beyond American imagination.The more it grows hostile the more America loses a natural ally. American foolishness to prove they are the greatest make them fall the most hard way.

    • IAF101

      >> “Eventually she would have used her husband to get a green card and reside in the US.”

      Such delusional arrogance. She would “emigrate” to the USA just because she married some American nobody? Do you really think people are so desperate for apple pie and star spangled banner ??

      She is an member of the Indian Foreign Service. That may not mean much to Americans who sell “ambassador” assignments to the highest “campaign contributor” with the smallest brain but in India these positions are filled with highly skilled, highly qualified and extensively trained civil servants who face one of the most competitive examination and screening process on the planet (1 out of 25,000 applicants or more is chosen) . They represent the elite of the India civil service and in India they hold positions of tremendous power and influence.

      No sane Indian IFS officer would turn down a life of such great importance, power, privilege and comfort to join the common rabble in America living a ordinary life as an ordinary person.

  • Yosemite_Steve

    Many very serious complaints against America chauvinism are indeed in order. However the Indians seem like petulant children regarding this case. As they well know, rich Indians keep domestic help under hideous conditions as a matter of course, often forcing them to work 12-14 hour days every day for a pittance – literally treating them like slaves with no rights even to basic dignity. This is where India certainly gets a failing grade for social justice and at such a personal level at that. “free housing and board” – come on, what a jokester when the servant in question was paid well below poverty wages with no overtime pay after the Diplomat got her a visa using a fraudulent contract. Household help in India often have to sleep on the dirty kitchen floor and eat table scraps. Only a rich Indian would have the nerve to call these ‘perks’. In my opinion, if you are honest you should admit that India has far too much own dirty laundry in this area to be waving this particular item about so vigorously. It’s a matter of social justice and you are not in the right here. That is unless you think that the Indian upper middle class have a God given right to abuse those who are paid almost nothing for pampering them and lie about it in legal documents like visa applications.