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

[Madhu]

The US should never have let things get this far and the initial error lies with the US. But this episode highlights how poorly the diplomatic services of both countries perform, at times.

Opinion is not a monolith within either the Indian or American community, and, as yet, I have see no comprehensive surveys of opinion outside of journalists or elite circles.

This diplomat was involved in a scandal involving flats in Mumbai that were intended for Kargil war widows and the like. It became a scandal in India when the flats went instead to connected high level ex-military and Indian government officials.

There is plenty of commentary in the Indian papers about how this official finally got caught out for behavior.

The three main opinions (based on comments to articles in Indian papers) include:

1. She got what she deserved and good for the Americans. Why does India appoint such unqualified people to diplomatic posts? No wonder the Indians get the run around.
2. The Americans are arrogant jerks and they have a habit of treating Indian officials badly, while feting others, including Pakistani officials with dubious histories.
3. She should be tried in India, not the U.S. She is a problem, but our problem.

Bill, what you are seeing is various fault lines within the Indian society and Indians abroad being displayed. India is a complicated place. There are many families with an Indian-American connection (whether in India or the US) that have a buried skeleton in the closet of being scammed for money or marriage matters. The worst stuff is said behind closed doors both in India and the US, and then, once in a while, it gets out to the public. Everyone here has a point because it's a complicated situation.

This "all of India is angry" really refers to the subset of people bothering to pay attention. That this includes officials is an issue but it's a hiccup.

It's good that this happened in one way; we both can have more realistic ideas about one another.

No one looks particular good in this matter.

The anger against the corrupt "babu" Indian class is real and at least some of the election year drama against this stuff is fear of what the Indian public might do to the comfortable life of its more connected officials.

Which doesn't make the US behavior correct. For diplomacy's sake, this should have been handled a different way.

By the way, Preet Bahara is an ambitious guy who has prosecuted lots of high profile cases. This is a better lens than the Brahama Chelleny or MK Bhadrakumar line of "more American than American" that Ray has brought up.

That is dated. The Indian community in the US is pretty comfortable in its skin. It doesn't need to prove anything to anyone, in general. (Naturally a generalization but none of the commentary is based on hard evidence, really, in terms of what general opinion is.

Khobragade is married to a well-to-do Indian American, a wine expert and academic with a good job. The maid apparently has parents that work for someone in the US Embassy in Dehli, I've read (but not sure).

The comments about the diplomat in the Indian papers by commenters is scathing.

You can search for blogs about so-called Indian babus to see this side of the commentary.

All sides are valid here because it is not straightforward on first blush and so many have behaved badly.

[Madhu]

Lots of articles in this vein. It doesn't mean the US is correct but it bears on the opinion about this case in various constituencies.

Most of the Western commentary has been about high flyers and the upper middle class. The larger opinion is hard to gauge, so many reporters are in a bubble that includes other reporters and the officials they cover. Myra McDonald at War on the Rocks seems to be a bit in this category, which is surprising. Generally a good commenter on these issues. At any rate, an article about Adarsh:

That's not all when it comes to Devyani's real estate holdings in Mumbai. When she got the Adarsh flat, she already owned a flat in another government housing society in Oshiwara, which too was allotted under the state government's 10 per cent quota where recipients get flats at extremely cheap rates as compared to Mumbai's stratospheric market prices, and which is another fount of corruption in Mumbai, with most flats cornered by politicians and their relatives, and of course bureaucrats and their relatives, and those connected to their powers that be, making a mockery of the 10 percent quota supposedly for helping citizens who need it most. As the Economic Times reports, a massive 42 percent of such flats allocated in the past 10 years were resold by allottees at much higher prices, making a killing in the bargain at the expense of the taxpayer and the common Indian. Things have become so bad with the 10 percent quota that the Bombay High Court recently warned the Maharashtra government of contempt if it continued to stonewall requests to name double and multiple allottees of such flats.

OTOH, Daniel Patrick Moynihan once said that the Indians so much as told us that they were going to go nuclear, so to speak, in the late 90's, and we just didn't listen. The case of the Indian fisherman and the Italians pretty much told us how the Indian elite class would react to this case.

And the Indians should have posted someone else after getting certain signals.

I doubt long term relations are seriously soured but both embassies seem to be a bit of a disaster.

Read more at: http://www.firstpost.com/india/how-a...ce=ref_article

[Ray]

As I said this case was not about Khobargde.

Her family are well known wheeler dealer and there is no symoathy for them.

It is a matter of principles and nothing else.

Do unto others as you would have others do unto you. [Matthew 7:12]

[Madhu]

Of course it's a matter of principle. It's also being used to comment on the state of the India American relationship.

More than one principle is at stake. The US shouldn't have let this get out of hand and someone needs to look at the State Department and the administration and how it got to this point.

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.

If now both Indian and American diplomats are more careful, good. It's a high flying life for some and they cause so much trouble for the nations they are supposed to represent.

I know of relatives that have been asked to fiddle papers for Indians assigned to the UN and the relative refused.

I'm sure the same goes on in India with American officials that try and skirt rules.

Maybe we should all focus on being competent for a change.

What goes around comes around. The US and India are both getting this message. At least, the more competent should understand. Letting it all get to this point is a clown show. The Chinese must be rolling around in laughter at both.

And both the Indian and American commentary is stuck in the 1970's. It's 2014.

Everyone has a point, everyone is correct on the one point they are discussing. But, overall, it's a complicated and multifactorial issue.

The punditry has been appallingly shallow in the papers.

[carl]

So she's connected. Color me surprised.

[Ray]

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.

[jmm99]

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:

“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:

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):

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:-

“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:

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

[Ray]

Mike,

I am not a lawyer.

Interesting points.

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

[jmm99]

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):

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:

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