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26 Dec, 2013

India-U.S. row: The Return of the Ugly American

By Ramesh Thakur, The Times of India

Thursday, 26 December 2013 – Consider two cases of consular officials two years apart. One shoots and kills two locals, the other pays her nanny below local minimum but above home wages. Had host-country law prevailed, the first — Raymond Davis, a CIA contractor in Lahore — could have faced the death sentence. Instead he was brought home a free man. US 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 same US president insists on diplomatic immunity for the first but stays studiously silent on the second. No apology from secretary of state John Kerry.

US media are oh so touched by the plight of the poor maid and sanctity of the law of the land. Guess which country they accuse of hypocrisy? Yes indeed, the second, India. And praise which for standing up for the rule of law that must treat everyone equally? Yep, 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 abroad by Indian diplomats. 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 of India, there are suspicions about US motives.

Second, there are Vienna conventions dealing with diplomatic and consular relations. The sniffy US 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 US is uniquely virtuous, exceptional and wise. All others are venal and must be stopped from maliciously interfering with resident US officials, even killers among them. The Vienna Convention must be upheld for US diplomats abroad but shelved for foreign diplomats in the US.

Third, which country’s laws and judicial process have primacy? There was a prior case in Indian courts against Sangeeta Richards which the self-righteous promoters of rule of law have conveniently ignored. The US district attorney — a rogue prosecutor with a chip on his shoulder? — has publicly impugned the integrity of India’s judicial system. Yet it has a better track record of robust independence from the executive than the US judiciary. He might have left himself open to contempt citations.

Matching the Bush practice of kidnapping people from anywhere in the world and renditioning them for torture in secret locations, Preet Bharara proclaimed an extraterritorial right to evacuate Indian citizens from Indian territory, bypassing the Indian government.

CIA agents convicted in absentia for kidnapping by Italian courts will not be sent there for imprisonment. Requests are routinely rebuffed for US soldiers accused of rape and other heinous crimes against Japanese citizens to be tried in Japanese courts. Strict adherence to the rule of law for everyone is a bedrock American value — yeah, right.

All three issues are complicated and open to contrary interpretations. India might be wrong on one, two or all. 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 criminalising the conduct of a diplomat caught in the crossfire, stripping her, and subjecting her to bodily searches over a labour 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, US police practice good. Silly me. Smack!

Second simple truth: diplomatic relations are governed as much by tacit understandings as formal rules. Do all US consular families conform to every Indian law?

Third, India is one of the very few countries where, against decades of instinctive hostility, public approval ratings of the US have stayed positive. The episode will validate many negative perceptions of the US. The entire Indian Foreign Service — the permanent custodian of India’s permanent interests — has been antagonised by a colleague’s traumatic experience. As US relative power wanes, is it worth breaking trust with a growing number of friends and allies?

Delhi has demanded a formal US apology and unconditional release of Khobragade. It should also demand punishment of those who authorised and carried out the assault. Given the limpness of this government and neglect of public diplomacy, India may well back down eventually.

Even so, a soured India will withdraw extra courtesies to US officials beyond legal requirements, to the detriment of their professional functions. Cancellation of full diplomatic privileges to US consular officials should be the start, not the end, of a sobered India’s hardened policy.

The writer is professor of public policy at Australian National University.