A case of missing diplomacy

In the US and European countries,the initiative is passing from the foreign offices to prosecutors and courts. The Khobragade affair illustrates this.

Updated: January 9, 2014 11:56 pm

Vivek katju

In the US and European countries,the initiative is passing from the foreign offices to prosecutors and courts. The Khobragade affair illustrates this.

The intense national outrage at the arrest and humiliation of Devyani Khobragade,India’s deputy consul general in New York,on December 12,is justified. There was no reason for the American authorities to treat her like an ordinary criminal,even if they believed she had breached US criminal laws and her actions were not covered by the immunity provisions of the Vienna Convention on Consular Relations (VCCR). By handcuffing,strip-searching and locking her up with criminals,the Americans clearly violated the provisions of the VCCR,which requires that consular officials be treated,at all times,with respect.

The cleverly worded statement of the New York prosecutor,Preet Bharara,does not deny the substance of the way Khobragade was treated after her arrest. Indeed,it does not deny that Khobragade was handcuffed; it merely says that she was not handcuffed at the time of her arrest. Worse,it implicitly casts doubts at the integrity of the Indian judicial process.

Among the many issues brought into focus by Khobragade’s arrest is the question of diplomatic and consular immunities and privileges. These are codified in the Vienna Convention on Diplomatic Relations (VCDR) and the VCCR. These conventions provide the formal basis for the conduct of diplomatic and consular intercourse among nations.

The VCDR provides complete immunity from any criminal action to accredited diplomats. It also ensures that embassy premises as well as homes of diplomats are secure,and cannot be entered by any person of the receiving country. The VCDR also protects the communications of diplomats,though it is well known that intelligence agencies try to clandestinely pry into them.

The VCCR provides all the immunities to consular officials that diplomats enjoy,except that it significantly excludes immunity against grave crimes. The reason for this vital difference lies in the fact that the representative status of the consular officials is circumscribed to commercial,economic,cultural and scientific work,apart from looking after the interests of their nationals and servicing passports and issuing visas.

Both diplomats and consular officials enjoy privileges and facilities that are sometimes the subject of misinformed comment. These privileges are almost exclusively in the area of freedom from personal taxation of the receiving state,though not of their own country. Diplomats and consular officers are allowed to import duty-free goods,though these are subject to the policies of the receiving state.

Immunities and privileges are meant to ensure that the conduct of diplomacy and consular work can take place without impediment and harassment and in a conducive environment. The main objective of diplomats and consular officials is to foster good and beneficial bilateral relations through cultivating the government and opinion-makers of the countries of their postings. As such,all countries provide diplomats with the wherewithal to accomplish this task. The increasing personal interaction between leaders and senior officials has not diminished the importance of diplomats,though it has changed their working methods.

In addition to the formal framework of the VCDR and the VCCR,there were informal customs and understandings that sought to ensure that aberrant or disturbing behaviour of diplomats and consular officials was managed in a discreet manner,so that it never reached a point where it cast a direct shadow on relations between countries. In extreme cases,diplomats and consular officials were declared persona non grata and asked to leave. As the diplomatic world is governed by the principle of reciprocity,their countries asked an equivalent number of their counterparts to leave as well,and the matter ended there.

Over the past four decades,the US and the European countries have unilaterally eroded these approaches and have allowed their local laws to intrude more and more into areas relating to the working of embassies and consulates and the conduct of diplomats and consular officials. Thus,the initiative is passing from the foreign offices to prosecutors and courts who cannot and do not want to view the issue through the larger perspective of bilateral ties. Bharara is an obvious case in point,and it is striking that,instead of reining him in,the state department actively colluded with him. So the Americans,even while pursuing a track with Indian diplomats to address this matter,simultaneously followed a separate track that allowed Khobragade to be arrested and traumatised.

Most developing countries still follow the traditional norms and handle issues relating to diplomats quietly. Ironically,the US and the European countries not only encourage developing countries to do this,but arm-twist them to prevent their nationals — often with dubious diplomatic and consular credentials — to be put through the full judicial process in these countries,even when they are accused of murder. The case of Raymond Davis in Pakistan demonstrates how far the US is willing to go to protect its people from the jurisdiction of local courts and normal processes of criminal law.

That the US acted in bad faith is obvious. It is equally obvious that neither the top level of the Indian foreign office,nor the embassy in Washington DC,looked at this matter with the seriousness it deserved. As a result,it was allowed to assume this unhappy dimension. Perhaps they considered it in the light of similar cases in the past. This should have been avoided,and a different set of solutions could have been considered. Still,it is good that at least the general issue of domestic assistants of our diplomats is now receiving purposeful attention.

The writer is a former ambassador to Afghanistan.

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