Devyani Khobragade row: US must apologise to India

George Orwell, where are you when your country of birth needs you?

Consider two cases of consular officials two years apart. One shoots and kills two locals, the other pays her nanny wages below local minimum but above home rates. The same US president insists on diplomatic immunity for the first but stays silent on the second.

Had host-country law prevailed, the first - Raymond Davis, a CIA contractor in Lahore, Pakistan - could have faced the death sentence. Instead he was brought home without trial. Then senator John Kerry went to Pakistan to appease its anger. The US media managed to contain its outrage on his victims.

The second - an Indian female career diplomat, not an intelligence agent - is strip-and-cavity searched. The US media are touched by the plight of the poor maid and the sanctity of the law. No apology from Kerry, now the Secretary of State.

Guess which country they accuse of hypocrisy? Yes indeed, India. And praise which for standing up for the rule of law that must treat everyone equally? Yep, good ol' 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 by Indian diplomats abroad. What constitutes fair wage; can monetary value be put on perks such as free housing, 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 beyond the reach of India's legal system, there are suspicions about the motives of a politically ambitious district attorney in search of populist publicity. Second, there are different Vienna conventions dealing with diplomatic and consular relations.

Their distinctions have become increasingly blurred in practice with growing cross-linkages of functions and personnel. The meaning and applicability of relevant clauses to any particular dispute may be interpreted differently. 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 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. The Vienna Convention must be upheld for US diplomats abroad but may be ignored for foreign diplomats in the US. Washington's interpretations of all clauses are beyond question and it has the might to enforce it. If others don't like it, tough shitsky.

Third, which country's laws and judicial process have primacy? There was a prior case in the Indian courts against Sangeeta Richard that the self-righteous promoters of the rule of law have conveniently ignored. India kept Washington apprised of every legal step. Did the then chief executive of Union Carbide face his day in court for the 1984 Bhopal gas tragedy - the world's worst industrial accident in which between 2259 and 16,000 Indians were killed? Strict adherence to the rule of law for everyone is a bedrock American value - yeah, right.

In a spirited public intervention on December 19 the US prosecuting attorney insisted it was his duty to protect the Richards' civil rights and enforce US law on anyone who breaks it; explained the reason for ''evacuating'' Mr Richard from India two days before Ms Khobragade's arrest was to neutralise efforts to silence the Richards and compel Ms Richard to return to India; and 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.

Matching the Bush administration's practice of kidnapping people from anywhere in the world and renditioning them for torture in secret locations, attorney Preet Bharara proclaimed an extraterritorial right to evacuate an Indian citizen from Indian territory, against the directives of the Indian government and in defiance of court orders. He might have left himself open to contempt citations.

All three issues are complicated and open to contrary interpretations. India might be in the wrong (or right) on all three. 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 an individual diplomat caught up in the mess, stripping her, and subjecting her to bodily searches over a labour dispute. Ms 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.

Second simple truth: diplomatic relations are governed as much by tacit understandings as formal rules. Few US consular families would not be in breach of some Indian law. If the strict letter of the law was applied worldwide, diplomatic intercourse would come to a shuddering halt.

Finally, Diplomacy 101. 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 risks setting back bilateral relations by validating many negative perceptions of the US. The entire Indian foreign service bureaucracy - 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?

The Foreign Minister has said the world has changed and so has India. Delhi has demanded a formal US apology and unconditional release of Ms Khobragade. If Washington insists on saving face and not admitting its mistake, a soured India will likely withdraw all extra courtesies to US officials beyond legal requirements, to the detriment of their ability to function most effectively.

Ramesh Thakur, professor in the Crawford School of Public Policy, Australian National University, is co-editor of The Oxford Handbook of Modern Diplomacy.