Diplomatic Row: Indian Diplomat's Arrest and Treatment Spark Outrage

News is quickly spreading of a female Indian diplomat's arrest, subsequent treatment, and the ensuing diplomatic fallout.

The diplomat in question is Devyani Khobragade, who up until recently was India's Deputy Consulate General in New York for Political, Economic, Commercial, and Women's Affairs.  According to the criminal complaint, in November 2012, Khobragade hired an Indian woman as her maid and nanny.  The complaint further alleges that Khobragade and the maid entered into an agreement for the maid to receive approximately 30,000 rupees per month for her services.  The complaint then alleges that Khobragade lied on the visa application for the maid and had the maid lie about her anticipated salary -- all due to the fact that the 30,000 rupee/month salary would not comply with New York's minimum wage laws.

Fast forward to last week, when Khobragade was arrested as she was dropping her daughter off at school.  What happened next has sparked outrage in India.  In Khobragade's own words:

Although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, in a holdup with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride.

(BBC).  After Khobragade's bail was set at $250,000 and posted, India announced it was transferring Khobragade to its UN mission, where she would be granted full diplomatic immunity.  In the meantime, the Indian government responded to the perceived slight by refusing to meet a U.S. congressional delegation and removing security barricades outside the U.S. embassy in New Delhi.  Those road barriers were apparently an extra safety barrier specifically for the U.S. embassy -- in other words, in the spirit of diplomacy, India was giving the U.S. embassy favorable treatment.  Protesters in India also burned posters of U.S. flags and President Obama during a demonstration in Bhopal, India.

Khobragade intends to challenge the arrest on the grounds of diplomatic immunity.  The Vienna Convention on Consular Relations, or "VCCR," establishes the grounds for immunity.  Specifically, Article 43 notes that "Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions."  Khobragade's alleged criminal activities appear to fall outside the scope of those official duties; accordingly, this defense may not carry much weight.

A closer call than the full consular immunity is whether Khobragade should be subject to arrest and detention pending trial.  Article 41(1) states: "Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority."  The treaty does not go on to define a "grave crime," which could lead to a claim that the crime itself was not sufficiently "grave" to warrant Khobragade's arrest and detention.

Meanwhile, the actual treatment itself -- aside from its political shortsightedness -- may violate the VCCR.  Article 40 states: "The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity."  Article 41(3) notes: "If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position."

The U.S. Marshals Service ("USMS") confirmed that Khobragade's treatment -- which included a strip/cavity search -- followed "standard arrestee intake procedures."  USMS also confirmed that Khobragade was placed in "general population" in accordance with how prisoners are typically handled.  Even if such treatment conforms to "standard arrestee intake procedures," it is doubtful that it conforms to the language of the VCCR requiring states to "prevent any attack on [one's] person, freedom or dignity."

In short, U.S. officials may have treated Khobragade similar to any person accused of a crime.  In doing so, however, the U.S. likely violated its treaty obligation that mandates a different standard of treatment for foreign diplomats.  The consequences of violating that treaty obligation will be political, as opposed to legal (legal action for VCCR violations is possible in more egregious violations -- such as failure to notify a country that its citizen was arrested --  even though that is itself a hotly contested issue).  Such consequences are already starting to take place, such as the snub of the U.S. congressional delegation and the decision to lift barricades outside the U.S. embassy.  Those barricades, it will be remembered, were placed near the embassy as additional security to specifically benefit the U.S. embassy.  If the U.S. hopes to continue receiving such courtesies, it may have to learn how to handle the arrest of high-ranking foreign diplomats in a more...diplomatic manner.  Of course, what may really get the United States' attention is India placing a freeze on the import of duty-free alcohol for U.S. diplomatic staff.

Update 12/19/13, 11:41am: An excellent analysis of whether Khobragade could be granted retroactive immunity may be found here.

U.S. Role in Afghanistan Post-2014

In early October, prospects for a continued U.S. presence in Afghanistan post-2014 looked bleak.  If the U.S. and Afghanistan could not negotiate an agreement soon, the U.S. would have to begin arrangements for a complete withdrawal of troops by the end of 2014.  Hoping to salvage the situation, U.S. Secretary of State John Kerry traveled to Afghanistan.  In mid-October, Kerry and Afghan president Hamid Karzai negotiated the terms of a Bilateral Security Agreement (BSA) that would keep U.S. troops in Afghanistan post-2014.  The chief sticking point had been whether alleged crimes committed by U.S. soldiers would fall under U.S. or Afghan jurisdiction.  The BSA gave the U.S. jurisdiction over these alleged crimes, a term that Karzai had opposed.  When the BSA was signed, Karzai said that the decision regarding jurisdiction must be made not by him but, rather, by the loya jirga -- a council of approximately 3,000 Afghan elders.

Fast forward to last week.  First, just as the loya jirga convened, President Karzai developed a new position on the BSA -- indicating that it should not be signed until after Afghanistan's April 2014 presidential elections.    After four days of deliberations, the loya jirga responded by approving the BSA and recommending that Karzai promptly sign it.  Karzai refused, indicating that he would not sign it until after the April 2014 elections and after the U.S. brought peace: "Peace is our precondition.  America should bring us peace and then we will sign it."

U.S. National Security Adviser Susan Rice traveled to Afghanistan to speak with Karzai.  Karzai now has a fresh set of demands that were not part of the original BSA:

Karzai told Rice that he would sign only after the United States helps his government begin peace talks with the Taliban and agrees to release all 17 Afghan citizens being held in the Guantanamo Bay detention center in Cuba, according to Afghan and U.S. officials. 

In addition to those new demands, the Afghan leader reiterated that he will not sign if “another [U.S.] soldier steps foot into an Afghan home,” Karzai spokesman Aimal Faizi said. The United States has already promised to show “restraint” in “home entries” by U.S. troops and to carry them out only in conjunction with Afghan troops, but the tactic remains a part of U.S. operations against some insurgents here.

Rice responded by noting that if the BSA was not signed by the end of the year, the U.S. would have no choice but to prepare for the complete withdrawal of U.S. troops by the end of 2014.  The stakes were raised two days ago when, during a NATO strike against an insurgent, a two-year old was tragically killed and two women were injured.  The U.S. maintains that the strike targeted a mid-level Taliban commander traveling on a road, whereas Karzai and his administration maintain that the attack struck a residential home.  Both sides agree, however, that the civilians were killed during the attack.  Karzai noted that he would not sign the agreement if such "oppression" continued.

Putting aside Karzai's competing demands for the U.S. to provide peace and security while ensuring zero civilian casualties, the larger question is whether he will in fact sign the BSA by the end of the year.  Why, one might ask, can't the U.S. simply wait until April 2014 to find out whether Karzai will sign the BSA.  The answer, quite frankly, is that this is not feasible.  There are currently more than 86,000 NATO and affiliated troops in Afghanistan; 60,000 of these are American.  The logistics of transporting the troops; transporting, selling, or destroying the equipment; securing the bases; continuing to train Afghan forces; and myriad other issues, are simply staggering.  A succinct yet excellent account of the challenges posed by the logistics of the withdrawal from Afghanistan can be found here (the article, written in February 2013, anticipated that most troops would be withdrawn by the end of 2014).  In short, logistics alone -- setting politics aside for the moment -- dictate that the U.S. decide soon whether or not to withdraw troops.  While pundits may claim that the U.S. "should stay patient" and that waiting until after April to sign the BSA is acceptable, facts indicate otherwise.  If the U.S. is to keep troops in the country, for example, it cannot completely remove the infrastructure it currently has in place.

Of course, this post is simply reporting the situation with respect to ongoing negotiations as well as the pragmatic issue of logistical challenges.  Another question entirely is whether the benefits of a continued U.S. troop presence outweigh the costs in terms of lives lost (American, Afghan, and others), money, and anti-American sentiment.  That's a question we'll let you decide for yourselves.