India-US relations: cooling and warming up (merged thread)

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

Quote:

---

Originally Posted by carl

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

---

Spot on.

Not in agreement on this one Carl.

What we see is another example of US arrogance together with a display of immature petulance from India.

The only good thing about this is that the US will have learned that their power is on the ebb and they can no longer ride rough shod over (what were once) 3rd world countries without causing an embarrassing tantrum.

India's test will come when they show the world they have the balls to stand up to China on some issue. Don't hold your breath.

Quote:

---

Originally Posted by carl

Thinking over all that has been said about this affair here, it occurs to me that this is really an encouraging thing. My take on the tone is that it is sort of like a disagreement between sibs (I just learned that word) rather than a spark between potential enemies. It seems we aren't really mad at each others countries so much as disappointed that a buddy would act like this. What antipathy there is also seems to me to be mostly directed at individuals as individuals, not as nationals.

Very good for the future.

---

Quote:

---

India's test will come when they show the world they have the balls to stand up to China on some issue. Don't hold your breath.

---

Breathe free.

The wimp on his way out!

JMA:

I don't think you are right and I hope you aren't, but I can't marshal a thunderingly persuasive argument to the contrary.

As far as India goes, perhaps India the country is much more stand up than the Indian leadership class. I got to thinking that when I read Ray's "breathe free" comment (if I got his inference right). One of the reasons I got to thinking it is the Americans are way more stand up than the American leadership class. Maybe India is a little the same.

Quote:

---

Originally Posted by carl

JMA:

I don't think you are right and I hope you aren't, but I can't marshal a thunderingly persuasive argument to the contrary.

As far as India goes, perhaps India the country is much more stand up than the Indian leadership class. I got to thinking that when I read Ray's "breathe free" comment (if I got his inference right). One of the reasons I got to thinking it is the Americans are way more stand up than the American leadership class. Maybe India is a little the same.

---

That is right.

The political dispensation is changing, the catalyst being that Indians are tired of the lack of governance, being pushed around by all our neighbours and accepting the same like wimps, and adding insult to injury, the disgraceful and brazen corruption by the current Govt without an iota of shame, galloping inflation and food prices, and the PM and his Ministers' downright arrogance to blame their horrid governance and thieving & all the ills that has visited the Nation, on the international political and economic scenario.

Quote:

---

Originally Posted by carl

So she's connected. Color me surprised.

---

I don’t subscribe to Madhu’s – But the Indians failed on a point of principle too; better quality people capable of following laws, especially where they have been warned, should be appointed. Diplomacy is a two way street. Vienna conventions and learning the ways of your host country and its behavior..

Vienna Convention is clear about it as per Article 47 and there is noting wrong in what this woman has done.

However, the US does not recognise (though that is unique) and instead has A3 visa for diplomat’s personal helps.

Khobargade, I am sure was aware of it, and so to that extent, she is totally at fault.

Madhu is right that she should have been aware of it. In fact, if she was not aware of it, she had not done her homework and the External Affair Ministry of India failed in its duty in not briefing her. Height of incompetence I would say and people taking Indian Foreign Service merely as a vehicle to accumulate dollars as pay!

Qualified diplomats and she is not?

Can't blame India. India has 'reservations' i.e. quotas for Dalits and anything can pass through that sieve!

If honesty in selection is applied, then the West and the US will be the first ones to howl that Human Rights are being violated and there is discrimination!

Is she connected?

Yes, she is connected.

Her father claims to be a friend of the Home Minister and her credentials are even better. She is what is a Dalit and so she is a ‘special class’ to be handled with kid gloves and a necessity which the West makes a song and dance over of them being ‘deprived’ and India treating them as untermenschen.

Have you not seen that when India is to be bashed, bring in the caste angle and berate without logic! I have appended that stupid article from Forbes which is so absurd diluting reality into case - the favourite whipping boy of the West, and something which they do not understand.

No one complains about the class privileges and distinctions showered in the British society or which the Americans adulate and cherish and gleefully honour. Prince Harry and his nude show being one which was so wonderfully honest! ;)

Now, why is the US treating this poor Dalit woman like an untermenschen? Why not give her some leeway as per the US liberalism and love for the assumed underprivileged?

Where is the US’ bleeding heart concern now?

The answer is simple.

The shoe pinches the one who wears the shoe.

I am not being obtuse, I am merely trying to present the Indian point of view so that Americans understand us. We want to be with the US, but on an equal relationship. We don't want stupid contentions thrown at us to justify the unjustifiable.

We have been subjugated by imperial powers, Moghuls and British for too long.

We want to experience what it is to be independent Indians for a change.

and I'll think about renting a string quartet to accompany your heart rending "plea to the crown".

Two things should be clear to each and every person who has bothered to become familiar with the details of this case:

1. It is a false statement case (not a work permit case) and alleges that the consular officer lied in the documents that she filed with the US government (per complaint and affidavit by the DoS security officer); on the basis of which, a Federal magistrate issued an arrest warrant on felony charges (for lying, not for violating a work permit), carrying 5-10 year imprisonment penalties. This post and this post in this thread.

2. Although what the DoS did (in following the hardball prosecution route) met US legal requirements under Article 41 (the "grave crime" section) of the Vienna Consular Relations Convention (p.14 of pdf; from the MFA of Turkey, a sometimes prickly democracy), it was a total and complete cockup in terms of wisdom and rational judgment about short and long term effects.

In short, DoS (using the facts and law stated in the complaint and affidavit) should have declared her "persona non grata"; she would have left the country; and then India (being another prickly democracy, like the US) would have retaliated by declaring one of our New Delhi embassy personnel (the security officer involved at that end) "persona non grata" - end of story. So, I agree with Julian Ku that DoS deserves an "F" in how it handled its options in this case.

Both you and I know that DoS (to include its New Delhi embassy) handles Indian relations with all the grace of a club-footed pachyderm.

That being said, I'm not quite through with this topic (but almost). Dapo Akande has posted (on the European Journal of International Law blog) a three-part comment on the case, Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General; and, yes, the applicable article is Article 41 of the Vienna Convention (the "grave crime" provision). "Grave crime" is not defined in the treaty; as Dapo says, the choice was to use the generic "grave crime" (leaving specific definition to the country receiving the diplomat), or explicitly include a 5-year threshold. The UK for example, in its Consular Relations Act 1968 has:

Quote:

---

“grave crime” shall be construed as meaning any offence punishable (on a first conviction) with imprisonment for a term that may extend to five years or with a more severe sentence;

---

As proved in the prior posts cited above in my point 1, the charges against your consular officer for lying in official documents carry 5-10 year imprisonment penalties.

Nor, would I get too sanctimonious about the Vienna Convention if I were an Indian. While the Union of India has ratified that Convention on its Executive level, its Parliament has not passed enabling legislation. Thus, the Convention is not applicable as a matter of Indian domestic law !

I cite to Jamal Mirza v. State (S.P. Garg, J.), Indian Law Reports (Delhi) ILR (2012) II Delhi, p.150 of pdf; citing as black-letter law:

Quote:

---

Important Issue Involved: There is no automatic acceptance of an international treaty, even post ratification, as domestic law in India — It only becomes binding as law once Parliament has indicated its acceptance of the ratified treaty though enabling legislation.

---

The US and UK have taken the necessary legislative step - India has not.

As the Delhi High Court stated in its longer discussion of the Vienna Convention (pp. 160-161 of pdf):

Quote:

---

59. The Supreme Court’s ruling in Jolly George Verghese v. Bank of Cochin 1980 (2) SCC 360 is that treaties entered into by the Union of India do not become enforceable in the courts and neither do they become part of the domestic law of India. Yet, they can be assimilated as aids to interpretation of the Constitution of India, to the extent their provisions are not inconsistent with municipal law. Justice Krishna Iyer elucidated on this point thus:-

Quote:

---

“India is now a signatory to this Covenant and Art. 51(c) of the Constitution obligates the States to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” Even so, until the municipal law is changed to accommodate the Government what binds the court is the former, not the latter.” [emphasis by Justice Iyer]

---

---

and, specifically as to the Vienna Convention:

Quote:

---

61. It can therefore be seen that there is no automatic acceptance of an international treaty, even post ratification, as domestic law in India. It only becomes binding as law once Parliament has indicated its acceptance of the ratified treaty through enabling legislation. Since no such legislation exists, this treaty is not binding, and therefore, non–compliance with its provisions does not result in a violation of the procedure established by law. The only rider is that if the standard postulated in the covenant or international treaty is consistent with Indian law, the same can be considered as an aid to interpretation of the relevant provision of municipal law. [emphasis added by JMM]

---

This also is a warning to US consular officers - you may well not be entitled to the "privileges" you were taught in rookie diplomat school, if you happen to be arrested in India for a violation of its domestic laws.

Regards

Mike

Mike,

I am not a lawyer.

Interesting points.

Taken the liberty to ask on the issue on a forum that is discussing the issue.

I'd be interested in all reasonable comments from your other forum.

Briefly, I'll add a Lawfare comment by John Bellinger, who was legal adviser at the National Security Council and then at DoS during the Bush II administration. Unlike Julian Ku (and JMM), John tries to shift the greater blame to DoJ for the cockup. The "cockup" (to the IL people over here) was not in the USG acting illegally, but rather acting stupidly.

In any event, here are some snips from Bellinger's The Khobragade Kerfuffle: An Assessment (with his hyperlinks kept intact; emphasis added by me in two places):

Quote:

---

The last few days have seen a flurry of diplomatic and law enforcement activity in both the United States and India that may bring the month-long Khobragade controversy to an end. In this post, I try to unpack some of the applicable international law and U.S. policies involved. In a nutshell, although the U.S. Government acted consistent with its treaty obligations, the State and Justice Departments appear to have overreacted and mishandled their initial response to Ms. Khobragade’s transgressions, causing harm to the U.S.-Indian relationship and creating security and legal risks for U.S. diplomats both in India and around the world. Over at Opinio Juris, my friend Julian Ku says the “State Department Deserves an ‘F’ on their Handling of the Indian Consul Flap.” Although I suspect that equal or greater responsibility for the flap should lie with the Department of Justice, I agree that the matter was initially bungled, as I explain in more detail below the break. Fortunately, the State and Justice Departments, and the Indian Government, now seem to have worked harder to resolve this diplomatic row.

To recap the recent developments: last Wednesday, the State Department accepted Ms. Khobragade’s transfer from the Indian Consulate in New York, where she had been Deputy Consul General, and re-accreditation to India’s Mission to the United Nations; on Thursday, she was indicted for visa fraud and false statements by a grand jury in the Southern District of New York; the State Department then asked India to waive the immunity to which she was entitled under the U.S.-U.N. Headquarters Agreement and India refused; the State Department then declared her persona non grata and asked India to withdraw her from the United States; she left the United States on Thursday night; in response, on Friday, India (which had initially retaliated by reducing security around the US Embassy in New Delhi and curtailing privileges for U.S. diplomats) then asked the State Department to withdraw a U.S. diplomat assigned to the U.S. Embassy in New Delhi (a diplomatic security official who reportedly had helped to bring the family of Ms. Khobragade’s nanny from India to the United States); and on Saturday, India’s External Affairs Minister stated that India’s “immediate, immediate concerns have been addressed.” ...

---

More in John's post, which could use some additional fact checking, and less speculation, on the respective roles of DoS and DoJ in this case. He and I agree on this point:

Quote:

---

The U.S. Government must enforce U.S. criminal laws and must not tolerate abuse of domestic workers by foreign diplomats, but it must also balance these important equities against the risks to U.S. diplomats around the world, and this sometimes means making compromises. Given its own global diplomatic presence, the United States may have more to lose than to gain by prosecuting foreign diplomats, except in the most serious cases. In this case, it might have been more prudent for the State Department to have quietly expelled Ms. Khobragade, or at least to have asked SDNY not to have arrested her.

---

except as to the last sentence where "persona non grata" expulsion was really the only game in town. DoS filed the Complaint and Affidavit asking for the arrest warrant; and once that was issued by the Federal magistrate, SDNY had no other choice than to perform the arrest.

Finally, anyone analyzing this case (from its policy and legal standpoints) should look at these filings in the SDNY:

U.S. v. Devyani Khobragade Indictment(PDF)

U.S. v. Devyani Khobragade Indictment Exhibits(PDF)

U.S. v. Devyani Khobragade Govts 1.9.2014 Letter to Judge Scheindlin

I expect this charge (still pending) will be plea bargained out to a much reduced charge.

Regards

Mike

Mike,

I find your comments reasonable.

It is time to clear the air and I totally agree on that.

Why don't you and others come onto the forum and take it through?

http://defenceforumindia.com/forum/a...isa-fraud.html


It will be a great service for the people of both countries to get out of the fog created by callous govt officials on both sides.

I, for one, do not accept being pushed around, but if there is legalities that have been conveniently forgotten, then I all for the reality to surface and not stand on illegitimate egos.

Quote:

---

Originally Posted by Ray

That is right.

The political dispensation is changing, the catalyst being that Indians are tired of the lack of governance, being pushed around by all our neighbours and accepting the same like wimps, and adding insult to injury, the disgraceful and brazen corruption by the current Govt without an iota of shame, galloping inflation and food prices, and the PM and his Ministers' downright arrogance to blame their horrid governance and thieving & all the ills that has visited the Nation, on the international political and economic scenario.

---

Yes, so playing this incident up is a good distraction from the reality on the ground.

Quote:

---

Originally Posted by jmm99

DoS filed the Complaint and Affidavit asking for the arrest warrant; and once that was issued by the Federal magistrate, SDNY had no other choice than to perform the arrest.

---

Mike,

Do you think it's possible that domestic, even local political considerations were in play in the decision to arrest? I know that in NY there is a deep seated perception that foreign diplomats are inclined to throw their weight around and abuse their privileges, and there's also a perception that DoS does nothing at all to control them. Actions like this would not be popular in the diplomat's country of residence, but they would be very popular indeed on the streets in NY.

Not saying that was a factor; I' not in a position to know... wondering if you think it might have been.

Quote:

---

Originally Posted by JMA

Yes, so playing this incident up is a good distraction from the reality on the ground.

---

Yes, there is the real possibility of that and we don't discount that.

It is also because in India, because of the lacklustre approach to issues that relate to Indo US scenario & relationship by the Obama administration, it has knocked off the 'magic' that the Clinton and more so, the Bush Administration had fostered.

Hence from the "US can do no wrong" attitude that was there in India, the US is now being slotted in the Indian mind, that it is a friend, but an indifferent friend.

Therefore, the Indian reaction to the Khobragade case, which is perceived the way it has panned out.

I would not be surprised that the 'elite's' perception in India could have been structured as it has happened, by the fact the NYPD is not taken to be a very fair organisation and more prone to what we call dadagiri (a law unto itself)!

Quote:

---

Do you think it's possible that domestic, even local political considerations were in play in the decision to arrest? I know that in NY there is a deep seated perception that foreign diplomats are inclined to throw their weight around and abuse their privileges, and there's also a perception that DoS does nothing at all to control them. Actions like this would not be popular in the diplomat's country of residence, but they would be very popular indeed on the streets in NY.

---

Anything is possible; and I've no doubt that the hardball process was indeed popular in NYC.

But, this was a DoS controlled matter right up to the issuance of the arrest warrant when the SDNY USM Office and the Federal Attorney's Office were brought into the picture.

This is fundamentally a "nanny-gate" case, where diplomatic and consular officials are simply high-profile examples of a common problem across the US - as exemplified by any number of political appointments shot down because of illegal immigration violations, tax evasions, etc. Besides most of those employees are women who are being exploited, abused, etc.

So, IMO, someone at State, in a powerful enough position to bring on the complaint and affidavit, decided to make an example of this particular consular official. I don't have the facts on that, but I expect they would come out at a trial; which is exactly why a trial will never take place. Just a gut feeling.

Regards

Mike

Mike,

Here are some of the replies

Quote:

---

Please ask him for the following : -
from the VCCR
https://treaties.un.org/doc/Publicat...38-English.pdf
what Article 2 (i) of the

Quote:

---

i) " member of the private staff " means a person who is employed exclusively in the private service of a member of the consular post ;

---

Maid comes under this as she is employed for private service of DK.

article 47

Quote:

---

Article 47
EXEMPTION FROM WORK PERMITS
1. Members of the consular post shall, with respect to services rendered for
the sending State, be exempt from any obligations in regard to work permits
imposed by the laws and regulations of the receiving State concerning the
employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees
shall, if they do not carry on any other gainful occupation in the receiving State,
be exempt from the obligations referred to in paragraph 1 of this Article.

---

Now what they want to say that she has lied for the Visa affidavit/verification clause, that is not even applicable here because of the aforesaid.

About the crap that Municipal law will prevail over International law in case of any dispute between the same. Same thing is followed in India.
Now be as it may, we too can prosecute then for 377 and other violation of Indian laws.

US has allowed DK to leave because they were informed in clear terms that we too will take action against their diplomats who have violated our laws and put them in jail with whole package of strip and cavity search. That is why she was made free to go.

---

Here is another:

Quote:

---

It has been explained quite clearly in the thread. But I shall reiterate.

1. She didnt submit any details, Sangeeta did. Along with documents Sangeeta presented, there was a employment contract signed by Devayani. That is the only thing connecting Devyani to Visa, and the very funny they both used the same computer.
2. Not really, VCCR, there is Article 47. It is clear Sangeeta is Devyani Private Staff, therefore her official duty, therefore she is immune. American VISA is against the VCCR. That is the fact.

There is no way we should let them have the narrative, when the narrative itself is wrong, circumventing VCCR and trying to impose their domestic rules on us and the world community at large.

Anyways, I think this also has some serious connection to MINIMUM WAGE issues between the Corporates and Staffers who want $15.00 and the Government. This was a good high profile case, I think it is much more higher than the Mays, and the Mays were used by those people who wanted exploit such a high profile case, I believe it is Uzra Zeya and above.

---

http://defenceforumindia.com/forum/a...tml#post842633

Currently I'm working my way through the 203 pages of your thread - slogged through the first dozen pages and the last few pages (so I picked up on both the posts you cite); and I'm working through the 20-post thing so I can use links.

Hell, Ray, join the fun at New to DFI: JMM99 (where pmaitra has the situation well in hand); and toss in your two rupees.

Regards

Mike

PS: I'm now going to bed - it's 0210 here.

A retired Indian "insider" comments in his weekly column:http://www.sunday-guardian.com/analy...-india-us-ties

He starts with:

Quote:

---

There were sufficient indications that the Khobragade matter could have been settled before it reached this stage.

---

Neat reminder of how diplomatic relations have fallen foul in another spat.

Complaint (submitted to the Federal Magistrate by the DoS) - two counts, based on these statutes:

Quote:

---

18 USC § 1546 - Fraud and misuse of visas, permits, and other documents.

18 USC § 1001 - Statements or entries generally.

18 USC § 1002 - Possession of false papers to defraud United States.

---

These are 5-10 year felonies.

DoS 150546 - Diplomatic and Consular Immunity - US Department of State; Guidance for Law Enforcement and Judicial Authorities; e.g., see pp.6-8.

USMS Directive for Body Searches; and its major point of controversy:

Quote:

---

3. Strip Search: A complete search of a prisoner's attire and a visual inspection of the prisoner's naked body, including body cavities. The following procedures are applicable to a strip search:

a. Strip searches on prisoners in custody are authorized when there is reasonable suspicion that the prisoner may be (a) carrying contraband and/or weapons, or (b) considered to be a security, escape, and/or suicide risk. Reasonable suspicion may be based upon, but is not limited to, one or more of the following criteria:

1) Serious nature of the offense(s) charged, i.e., whether crime of violence or drugs;

2) Prisoner's appearance or demeanor;

3) Circumstances surrounding the prisoner's arrest or detention; i.e., whether the prisoner has been convicted or is a pretrial detainee;

4) Prisoner's criminal history;

5) Type and security level of institution in which the prisoner is detained; or

6) History of discovery of contraband and/or weapons, either on the prisoner individually or in the institution in which prisoners are detained.

---

U.S. v. Devyani Khobragade Dockets.

This case has two docket numbers. All pre-indictment filings have been incorporated into the post indictment docket.

1 Khobragade, Devyani (dft) nysdce 1:2013-mj-02870 12/11/2013 01/09/2014 Pre-indictment docket card attached

Nusbaum Order 8 Jan 2014 attached

2 Khobragade, Devyani (dft) nysdce 1:2014-cr-00008 01/09/2014 Post-indictment docket card attached

Indictment

Indictment Exhibits

Govts 1.9.2014 Letter to Judge Scheindlin

Additional References on Diplomatic and/or Consular Immunities

Draft Articles on Consular Relations, with commentaries - 1961

Draft Articles on Diplomatic Intercourse and Immunities with commentaries - 1958

Vienna Convention on Consular Relations - procedural history

Draft Articles on Diplomatic Protection with commentaries - 2006

Vienna Convention on Diplomatic Relations - 1961

Vienna Convention on Consular Relations - 1963

Dapo Akande (a Nigerian) has posted (on the European Journal of International Law blog) a three-part comment on the case, Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General - Part 1, Part 2, Part 3.

Regards

Mike