The recent diplomatic tiff over mistreatment of an Indian diplomat by U.S. law enforcement authorities is neither about rule of law nor about diplomatic immunity. It involves the issue of courtesy for representatives of foreign governments, which is essential for the conduct of international relations.
Americans are often the most significant beneficiaries of courtesies, over and above the immunities guaranteed by the letter of law that governments extend to each other.
India’s Deputy Consul-General in New York, Devyani Khobragade, was arrested on charges of visa fraud for allegedly paying her maid less than the amount that formed the basis of the maid’s employment visa. U.S. marshals arrested Khobragade outside her kids’ school, publicly handcuffed her and subjected her to strip and cavity searches before detaining her with common criminals.
The U.S. attorney for the Southern District of New York, Preet Bharara, has defended Khobragade’s arrest on grounds of the crime she allegedly committed against her poor helpless maid. Secretary of State John Kerry has apologized to India over the manner of Khobragade’s arrest while defending the need to implement American laws.
The Vienna Conventions on Diplomatic and Consular Immunities provide different levels of immunity for diplomats and consular representatives. Consular officials are protected against arrest only for acts committed in the course of their duties.
The U.S. position is that as a consul, Khobragade was not immune from arrest for allegedly under-paying her maid. But even if that were the case, Bharara’s decision to treat her without regard for her status as a representative of a foreign, friendly government reflected the prosecutor’s over-exuberance straight out of an episode of Law and Order.
Khobragade’s guilt or the nature of her immunity is a matter for a court to decide. Treating her courteously was necessary to ensure that American diplomats and consular representatives are protected and treated kindly abroad.
As Pakistan’s ambassador to the United States, I found myself at the center of a similar but much worse row in January 2011 when Raymond Davis killed two men in a crowded street in the city of Lahore.
The U.S. claimed that Davis carried a diplomatic passport and therefore enjoyed diplomatic immunity. Pakistan’s Foreign Office found that Davis’ name had been included on the list of diplomats serving in Pakistan only after he had committed the murders, which did not extend him immunity under the Vienna Convention.
His job description, as an adviser at the U.S. consulate in Lahore, also entitled him to consular and not full diplomatic immunity.
Pakistan’s government could not free a killer without due process. But once he had been identified as a U.S. government functionary, our government ensured that Davis was treated with courtesy. American officials were immediately provided access to Davis and he was not subjected to a strip search. Once The Guardian revealed that he was, in fact, a CIA contractor, special arrangements were made for his security in prison in case other inmates might attempt to hurt him.
The Pakistani government avoided embarrassing President Obama, who had been misled into publicly insisting on Davis’ diplomatic status.
Eventually, Davis was set free by a Pakistani court after his lawyers reached a financial settlement with the victims’ families under Pakistan’s Islamic ‘blood money’ law. Kerry, then Chair of the Senate Foreign Relations Committee, travelled to Pakistan to convey America’s regret over the loss of life caused by Davis, which tempered the public anger over the prospect of an accused murderer being set free.
We treated the Raymond Davis affair as a matter affecting relations between Pakistan and the United States, and not merely as the crime it was. I was as outraged as anyone else over the fact that a hot-headed individual had killed two people in a crowded market without any identifiable threat to his life. But Davis was entitled to due process of law and until all legal options were exhausted his treatment could affect U.S.-Pakistan relations.
The U.S. prosecutor and marshals involved in arresting Khobragade and the State Department officials who signed off on her arrest, failed in being sensitive to the international dimension of an alleged domestic crime.
The ends of justice would not have been compromised if Khobragade had been treated with courtesies similar to those extended by Pakistan to Davis. American diplomats are extended considerations over and beyond the law in most countries.
Almost every U.S. diplomatic facility abroad is surrounded by barriers often erected on public property that violate municipal ordinances. American diplomats are allowed to board flights and exit airports through different exits than other passengers. These facilities protect U.S. government representatives in an era of terrorist threats.
American law enforcers need to be mindful of these global realities before setting off another storm while arresting a foreign diplomat or consular agent.