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Wednesday, December 08, 2021

Two shades of immunity

International law regime lacks a level playing field. Khobragade episode shows that.

January 13, 2014 1:00:11 am
Devayani She had signed an agreement to pay her domestic help, Sangeeta Richard, .75 an hour. Instead she paid her only .31 an hour. PTI

As we move away from a monocivilisational world of Western domination of world history to a multicivilisational world, our minds must begin retooling themselves. We have to develop the capability of carrying competing, if not contradictory, narratives and understand that both may be correct, even if they contradict each other. We will have to learn to shed black and white judgements in favour of multi-hued, complex assessments.

A perfect example of equally correct but contradictory narratives is provided by the case of Devyani Khobragade, an Indian consular officer arrested by US authorities on December 12. In American eyes, it is a clear, black and white case. She had signed an agreement to pay her domestic help, Sangeeta Richard, $9.75 an hour. Instead she paid her only $3.31 an hour. As Khobragade had violated US laws, it was both legal and legitimate for the US attorney, Preet Bharara, to have her arrested and charged. Reflecting mainstream American opinion, The New York Times editorialised that “India’s overwrought reaction to the arrest of one of its diplomats in the United States is unworthy of a democratic government”.

This American narrative has a point. Khobragade has her rights. So does Sangeeta Richard, the employee. Richard was clearly the underdog in this exercise (even though by being employed in America, her wages increased 25-fold). Indeed, the traditional American concern for the underdog is one of the strongest aspects of American society. So is the egalitarian spirit of American society, which has gone much further than any other human society in removing and eradicating all traces of feudal culture. In my first book on America and the world (entitled Beyond the Age of Innocence), I praised the American doormen who would look me in the eyes and treat an ambassador like me as an equal, and not act in a submissive manner like any Asian doorman would.

Shekhar Gupta has waxed eloquent on the egalitarian virtues of American society. He noted that barely within a year of leaving office as deputy secretary of state, Strobe Talbott had to scramble for a taxi in New Delhi like any other commoner. More amusingly, he told the story of a famous Indian film actress who refused to marry and settle down in America because Indians in America refused to allow her to cut a supermarket queue, even after they had recognised her. The good news for our world is that this American egalitarian spirit is gradually infecting other societies, including Asian societies, and therefore making them less feudal.

Ironically, however, even as this American spirit of egalitarianism infects the world, American government officials continue to insist on feudal-type privileges while serving in other countries. It is normal for American diplomats to receive diplomatic immunity. Rather abnormally, the American government expects that even its non-diplomats should receive immunity. In some cases, they have literally, not metaphorically, gotten away with murder. Raymond Davis, a CIA contractor, was whisked away from the Pakistani judicial system after shooting and killing two Pakistani citizens. In the ancient days, only feudal lords stood above the laws of the land. Today, American government employees also enjoy feudal immunities overseas (even though most of them are law-abiding citizens while working overseas).

Sadly, few Americans are aware that the American government practices double standards in the application of laws. It allows no foreign government officials, including a powerful person like Dominique Strauss-Kahn, then head of the International Monetary Fund, any immunity from American laws. Yet it expects its government officials to be — in theory and in practice — immune from other countries’ legal courts. Whenever any US government official faces the threat of prosecution in a foreign legal court, he or she is quietly whisked away, as few governments can withstand bilateral pressure from the US government. Since many Americans are puzzled by the Indian outrage, they should know that Indian society was deeply shocked that a senior Indian official was subject to a strip search. This created a deep sense of cultural outrage, similar to the outrage that Americans would feel if a black citizen is called a “nigger” today. Any Westerner who cannot understand this analogy will be unable to absorb a multi-civilisational perspective.

All governments in the world are aware of this schizophrenic attitude of the US government (which, I must stress, reflects the views of the US Congress). On one hand, the US government is second to none in defending the rule of law at home. On the other hand, the US government is second to none in defending immunity for its officials from all foreign legal courts and judicial procedures.

When the International Criminal Court (ICC) Statute came into force on July 1, 2002, the US government undertook a massive campaign to get over a hundred foreign governments to sign what have been called “article 98 agreements” or “bilateral immunity agreements (BIAs)”. These agreements stipulate that these countries would not send US citizens to the ICC. Similarly, the US Congress has developed a long-standing practice of extra-territorial application of its domestic laws on other countries and their citizens. But it is extremely reluctant to allow the extra-territorial application of other countries’ laws on its own territory.

This schizophrenic attitude of the US government explains why virtually every other government in the world was quietly cheering on the Indian government as it insisted on total reciprocity in the treatment of Indian and American officials. Few governments in the world have the geopolitical heft or the moral legitimacy to look the American government in the eye and demand such absolute reciprocity. India does. Hence, even India’s biggest detractor in the world, Pakistan, is quietly cheering on India. They hoped that India would finally succeed in persuading the US government to accept a level playing field in dealing with other countries.

The Indian government’s success in persuading the American government to allow Khobragade to return home and not face charges in an American court will therefore be cheered all around the world. Most countries realise that they would not have had the weight to shift the US government. India is one of the few who could do so. And in doing so, India has also enhanced the rights and standing of other foreign diplomats on American territory.

Finally, and perhaps most importantly, India may have actually done America a favour. Why? The former American president, Bill Clinton, has wisely counselled his fellow citizens to prepare for a world “that we would like to live in when we’re no longer the military political economic superpower in the world”. His wise advice indicates how the two contradicting narratives can come together: Americans should work hard to create binding international law regimes that would apply equally to American and non-American officials and citizens. In the final analysis, a level playing field in this area would demonstrate that the American egalitarian spirit is influencing international law too.

Kishore Mahbubani

The writer is dean and professor in the practice of public policy of the Lee Kuan Yew School of Public Policy at the National University of Singapore

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