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.” ...
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