The arrest of Devyani Khobragade, the Indian Deputy Consul General, has the elements of a Ridley Scott movie. Conspiracy theories, hidden agendas, duplicitous actors, mystery; it has it all. The actions of the US under the garb of standard procedure reflect either a questionable motive or overzealousness. That mystery remains unsolved.
Whatever the motive, the mistreatment of a State representative isn’t a light matter. The usually ‘soft’ Indian State shed its timidity and responded like a classical great power.
The fallout of this unwarranted episode will adversely impact the growing India-US relations. It could have been avoided. Before the situation had snowballed, the US should have been gracious enough to admit that it had dealt with a routine problem with insensitivity and rendered an unconditional apology. Well, Washington is not known for its grace.
There are two questions that have to be answered to understand how wrong the US was. First, did Khobragade as a consular officer had not have the right to be treated differently from a dangerous criminal? Second, were the procedure of arrest, identification, detention of the consular officer necessary and proportionate to the perceived threat to the good order of the US?
The US, from the start, has contended that there was no bar on her arrest as she lacked diplomatic immunity.
Of the two international Conventions which grant privileges and immunity to the representatives of foreign nations, only the Vienna Convention on Consular relations 1963 (VCCR) is applicable to her. On the other hand, the Vienna Convention on Diplomatic Relations 1961 (VCDR) vide Article 31, gives diplomats complete immunity.
Consular officers, on the other hand, have only functional immunity. It means that a consular officer has complete immunity from the jurisdiction of the receiving State, only for those acts performed in the exercise of their consular functions (Article 43). But does this mean that arresting Khobragade was the only way to serve the interests of justice? Article 41 of the VCCR is clear that a consular officer shall not be liable for arrest or detention pending trial, except in the case of grave offences and pursuant to a decision by the competent judicial authority.
The term grave offence has not been defined in the convention. The US courts have interpreted felony (a crime regarded in the US and many other judicial systems as more serious than a misdemeanour) to mean grave crimes. A felony may include offences ranging from a flaw in visa documentation to acts of terrorism. However, to resort to pre-trial arrest for an alleged visa misrepresentation, equating it for this purpose, with instances of graver crimes, like those connected with terrorism is irrational, an instance of non-application of mind and against the spirit of the VCCR.
The International Law Commission had warned against the implications of a pre-trial arrest as they hamper the functioning of the consulate and harm the interest of both the receiving and the sending States. Article 40 also casts a duty on the receiving State to treat consular officers with due respect and prevent attacks on their person, freedom or dignity. Therefore, the US should have shown restraint and treated her with dignity which the VCCR requires.
Second, was the procedure followed not disproportionate to the gravity of the offence? What was sought to be achieved by handcuffing a lady consular official in public view, strip searching her, subjecting her to cavity search and holding her along with drug dealers is beyond comprehension. It was simply high-handedness. There was no threat of Khobragade absconding or resisting arrest. In fact, the strip searches have been subject to constitutional challenges in the US itself.
Ironically, whenever US personnel posted in US Consulates or embassies have had brushes with the law, Washington has resorted to double standards. It has even interpreted the principle of functional immunity to ludicrous levels.
When Douglas Kent, the US Consul General in Vladivostok, in an accident while driving his personal car from a gym crippled a Russian, the victim was unable to get compensation. The US Embassy in Moscow claimed full immunity and the injured was denied compensation on the ground that the US official was acting within the scope of his employment. The Embassy even prevented Kent from being subjected to a blood alcohol test as the State Department “prohibits Foreign Service officers from being injected with a needle by a foreign official.”
In another instance, when an allegedly drunk US Marine attached to the US Embassy in Bucharest drove on the wrong side and killed a well-known Romanian pop star, he was spirited out of the country.
But the most interesting case is that of Raymond Davis, a CIA operative, who had shot and killed two Pakistanis. The US claimed full diplomatic immunity for him though the State Department had even said that the person involved in the killing was not Raymond Davis and later went to say that he was a “staff member for the United States Consulate in Lahore.” John Kerry flew to Pakistan for the release of Davis and President Barack Obama too lent his weight to it. The US went to the extent of cancelling trips as well as threatening to freeze monetary assistance to Pakistan if he was not freed.
This is not the first time that the US has acted highhandedly. In the last four years alone, former Indian ambassador to the US Meera Shankar, India’s former envoy to the United Nations Hardeep Puri and Krittika Biswas, daughter of a consulate officer have been mistreated.
It is time that the US sheds its double standards. Diplomatic and consular relations work on the principle of reciprocity. In India even the US consular officers were given special diplomatic status. Failure to treat Indian representatives with respect will only jeopardise the prospects of India-US relations which Obama has said would be “the defining partnership of the 21st century.” Washington should act with dignity, drop charges, apologise and move on.
George Thomas is from National Law School, Bangalore and writes on legal matters
The views expressed by the author are personal