Criminal envoy or rogue state?

In l’affaire Khobragade, with competing narratives of extortion by and exploitation of a Manhattan maid employed by an Indian diplomat, there are three crucial questions:

(1) Does the United States believe either that all diplomats must be subject to the legal jurisdiction of host states — many people around the world would applaud — or that the sanctity of U.S. diplomats (and soldiers) abroad is inviolate but foreign diplomats in the U.S. cannot have full immunity?

(2) Why should the U.S. legal process override a case already before India’s courts, involving a contract signed there between two Indians, with India’s government as an interested party?

(3) Do the facts really point to human trafficking?

All three questions, although obvious, have not been pursued by the U.S. media. India unilaterally gave U.S. officials courtesies well in excess of legal obligations.

When India responded to the physical mistreatment of its diplomat by paring back privileges and facilities of U.S. officials on strict reciprocity — no more but no less — it was accused of hypocrisy and over-reaction.

Indeed the U.S. and British media have called it vindictive and petty. Washington’s double standards are no surprise. The media’s brazen hypocrisy in publishing several editorials and opinion articles criticizing, and not one presenting the Indian case, is a sobering shock.

They should wake up and smell the coffee. The U.S. is rapidly losing the ability to impose its morals, laws and will on others. This is most evident with Beijing as it faithfully begins to copy American contempt for international law when inconvenient but enforces it on others. China’s leaders now posit this as the norm of behavior of a first-class power as practised by the U.S.

It is rare for India’s political parties, media and public to be united on any issue. This should have made the U.S. media ask: What is it that all Indians see in this case that we are missing?

Americans should engage in serious introspection on just how extraordinary and objectionable U.S. assumptions, actions and behavior have been.

Washington can be faulted on process and substance. If it wished to end the prevalent practice of diplomats employing home-based domestic staff, it should have taken up the matter with the government.

If Devyani Khobragade’s alleged offenses were criminally outside the norm, it should have worked with India to file charges in the U.S. (with India waiving immunity) or in India. If Delhi proved noncooperative, she could have been expelled persona non grata — a very rare public slap among friendly democratic governments.

For all the self-righteous moralization from the Western media and some Indian-origin “useful idiots” after the tough response, Delhi can be confident these steps will be followed next time.

Treating India’s deputy consul-general as a human trafficker and subjecting her to degrading treatment was an incendiary provocation. Is there an uglier example of bureaucratese than “standard operating procedure for arrestee intakes”?

The maid was a legally contracted government employee on an official passport with free board, lodging and health benefits plus paid annual trips home. Are U.S. minimum wages so generous that they would permit a guaranteed minimum monthly saving of $500 (by itself almost three times India’s per capita income) sent home as remittances?

Wage dispute, yes. Visa fraud, possibly. Human trafficking — get real.

Even a cursory look shows the U.S. has violated the Vienna convention on consular (and possibly also diplomatic) relations. In addition to a textual interpretation, context, shared understandings and state practice are also relevant. India’s Foreign Ministry seems to have worked with the U.S. Embassy in New Delhi, but the latter failed to keep the State Department in Washington fully informed of the mutual understandings regarding India-based domestic assistants working for Indian diplomats. To Delhi, furtively ferrying the Richard family from India was proof of premeditated U.S. bad faith.

The U.S. muscularly shields its diplomats, even when they kill. In the age of Internet and social media, such instances are quickly retrieved and flashed around the world. Last August Joshua Walde’s speeding SUV rammed a mini-bus killing one and injuring eight Kenyans. The U.S. Embassy whisked him out of Nairobi the next day.

In the case of Raymond Davis, a consular official who killed two Pakistanis, then-Sen. John Kerry said in 2011: “this case does not belong in the court” because Davis “has diplomatic immunity” (www.youtube.com/watch?v=8LPyh8sqQ7U).

An episode that should have remained inconsequential if handled “diplomatically” has caused short-term and lasting damage to Indo-U.S. relations. An isolated incident for the U.S., for India it represents a multi-pronged assault on foundational principles.

And for what? Khobragade is safely back in India, indicted but not convicted and insisting on her innocence.

The long-term damage to bilateral relations is incalculable. The U.S. badly miscalculated the balance of costs. India had too many principles, issues and interests (of officers, the bureaucracy and national interests) not to stand firm.

Efforts to be reasonable in past provocations were mistaken for weakness and earned contempt. Hardball diplomacy worked. Standing up to arbitrary U.S. high-handedness will have earned the admiration of most and the gratitude of many countries. Even Pakistan has spoken in support.

Are U.S. nongovernment organizations and attorneys engaged in a de facto plea- bargain extortion racket? Embassies find it tempting to accept a plea bargain when threatened with extreme criminal indictments rather than risk time, cost and a lengthy trial. For the attorneys, going after high-profile diplomats plays well to the popular gallery and a plea bargain with an admission of guilt is an easy no-cost triumph. The Khobragade case shows that, like appeasement, plea bargains only encourage them. The racket is an incentive for unscrupulous domestic staff to file false charges as the easiest route to permanent residence if they agree to testify against abusive employers, just as immunity is a shield for some diplomats to commit abuse.

India, too, needs to introspect. The detested “VIP” culture is the best explanation for the stunning triumph of an absolute newcomer party in the recent Delhi elections. It is now starting to create foreign policy headaches also.

The institutional capacity for managing India’s increasingly complex foreign policy challenges require an urgent expansion of personnel and resources as well as modernization of recruitment, training and promotion procedures.

And the Indian elite must learn to treat domestic staff as humans with rights and dignity, not servants to be abused and exploited.

Ramesh Thakur is professor in the Crawford School, The Australian National University.