Diplomatic faux pas by USA: Devyani Khobragade

Now that the dust has long settled with regard to the controversy of the arrest, indictment & departure of the then Deputy Consul General of India Mrs. Devyani Khobragade from USA, that engulfed the sweet channels of Diplomacy between India & USA; it is time to reassess what really went wrong and has been dangerously ignored by the world leaders & media alike.

The indelicate disregard for International Law has often been disproportionately disastrous. A great example, though with stark difference in magnitude to the current situation, is almost a century old i.e. the trigger point for the First World War, the assassination of Archduke Franz Ferdinand of Austria while visiting Serbia. The point to be made here is, the no nation should underestimate the repercussions of taking international law lightly on account of their high-handedness. The USA may not have lost much in the bilateral relationship with India yet, but they have certainly lost a great deal of comfort level with it.

We have certainly come a long way since First World War and have walked through the Vienna Convention on Consular Relations, 1963 as well. But here we are, seeing every bit of contempt shown to almost universally recognized treaty, signed and ratified by USA & India alike.

Coming to stinking facts of the case (December, 2013) the alleged victim is an Indian National & has an active criminal proceeding pending against her and is liable to be arrested in India as she is an absconding accused. She was precluded from approaching other authorities by Delhi High Court, which was duly informed to the USA in the month of November itself. However, violating the Comity of Nations, one Director ranked diplomat from US embassy in India (who has recently been exited from India) instead helps the absconding accused in India become alleged victim in the USA. It is done by helping her get back to USA on tickets arranged by official travel agency of the US embassy. This is a clear cut Contempt of Delhi High Court, the second Highest & constitutional Court in India. Interestingly, Mrs. Devyani has been accused of some form of Human Trafficking by the USA (by taking her maid from India to USA) whereas the official representatives of the USA were the ones arranging her ‘traffic’ from her native country to the USA. Now, this becomes really confusing, who should be accused of trafficking here? The USA wants us to believe that the Deputy Consul General, who registered a FIR in India against her maid and approached Delhi High Court, is actually some sort of a human trafficker. And the maid, Mrs. Sangeeta Richard, absconding accused, wanted for arrest in India, falling in contempt of Delhi High Court is the victim of Human Trafficking (from India to USA is the only possibility) and while she was back in her native country India, she approached her guardian angel; USA authorities, instead of taking shelter of Judicial organ of Indian state as a law abiding citizen. The guardian angel of the maid Sangeeta Richard takes her into shelter & quietly facilitates her to avoid law enforcement authorities in India, thereby abetting obstruction of justice on several counts. All this happens while India has communicated regarding the criminal status of Sangeeta Richard. Now, it’s a question to ponder as to which kind of victim of human trafficking wants to remain in the country she had been trafficked to. Now, if USA takes a serious view of human trafficking then it is incumbent on them to take their officials to task.

The author firmly believes that regardless of the outcome of the trial which never happened, merely the avoidance of humiliating arrest, would have made all the difference to the controversy at hands. There would have been absolutely no hue and cry had the usa followed the Vienna Convention on Consular Relations in letter & spirit.

Going through Indictment papers in the case of United States of America v. Devyani Khobragade, is laughable for a person with decent knowledge of law. It is insufficient in law as well as facts. However, lets restrict the illegalities in brief to International Law so that we have a manageable read.

The USA has been harping upon the fact that the consular immunity is different from diplomatic immunity & is only regarding the work concerning the consulate. But the fact of the matter remains that there is a “consular immunity” recognized by Vienna convention.

The USA in plain terms have violated Article 41 of Vienna convention on Consular Relations. It declares personal inviolability of Consular Officers i.e. the consular officers are generally not liable to arrest or detentions pending trial unless it is a case of a grave crime and pursuant to a decision by the competent judicial authority. Therefore, generally speaking Mrs. Devyani should not have been arrested & detained at all. But since she was arrested the USA will raise the argument that it was with regard to a grave crime as they take a serious view of human trafficking related offences, which would prove to be a moonshine argument. It should be remembered that the USA has been using their ‘taking a serious view of human trafficking related offences’ argument in a rather hushed up manner since the beginning in their press releases. This is only because they could later have a possibility to jump on to the shelter of - ‘grave crime’ committed by Mrs. Devyani. The USA deliberately did not use the words ‘grave crime’ because it would have made them look like a cheat & raised relevant questions from press. Unfortunately that did not happen. It is appalling to know that we live in a world where no international law jurist could point out the real & relevant questions to the USA.

Coming back to how Mrs. Devyani could not have been roped in the exception to Article 41. Firstly she was really not accused of a grave crime. A grave crime though not defined by the convention is rather such a crime which would shock the conscience of the society and should be irreversible in nature. This wasn’t the case here. The alleged victim in USA was being paid well above minimum wages of the sending country i.e. India & Article 48 of the Vienna convention on Consular Relations provides exemption from provisions of Social Security in force in Receiving State i.e. USA. Hence the law which is explicitly excluded from the Vienna convention on Consular Relations, its violation/ similar violations can NEVER be termed as a Grave Crime. Moreover if the arrest papers (warrant or otherwise) does not mention this particular Article 41 then it is automatically an illegal arrest. Interestingly, the mention of Article 41 were clearly missing in Indictment and would have made a great case for mistrial at once.

Under Article 35 of the convention, Freedom of information via all means (inclusive of telecommunications) is squarely protected & cannot be interfered by receiving state i.e USA.  In addition to that Article 33 provides that the consular archives and documents shall be inviolable at all times and wherever they may be. Now in this electronic age, the mobile phone of Mrs. Devyani which was taken away/impounded during her arrest, strip search, cavity search & detention by the usa presents quite a curious & suspicious case. Unfortunately, again the USA violated the inviolable & sacred concept of freedom of Information as well as consular e- documents present in her mobile phone.

Suffice is to mention that Article 40 of the convention was also thrown to the winds when the USA mistreated Deputy Consul General disrespectfully & while the USA was obligated under the convention to be the her custodian by preventing any attack on her person, freedom & dignity, the USA itself was the aggressor in this case. The only explanation USA is willing to give is that they followed 'standard procedure'. Well in that case, it turns out that USA's standard procedure is sub- standard in comparison to Vienna Convention which they happily signed & ratified.

In any case, if USA had any qualms with Mrs. Devyani, it was free to have her declared “non grata” as per Article 23 of the convention and she would have been out of their country in no time.

It is also apt to mention that Mrs. Devyani has been singled out & similar acts of other consular officers of less developed countries have been given special treatment and has discriminated against India which is clearly barred under the concept of Non- Discrimination enshrined in Article 72 of the convention.

The Vienna convention on Consular Relations only envisages a minimum protection that is to be afforded to the consulates & their officers, the USA has been rather illegally asking all the Consulate Officers to agree to a term in Visa application which asks them for allegiance to all Federal, State & Local Laws in the USA, which is making a mockery of International Law/ Treaties. It hardly makes any sense that you sign & ratify a treaty only to tread on it within your frontiers by misusing Visa Laws & allowing it to operate only outside your territory for claiming unilateral benefit.

As per its preamble, the Vienna convention on Consular Relations was formed with the belief that the Parties to the Convention would also contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. That belief is yet to see the light of the day, in the USA at least.

(The Article was penned long back)