Originally Published 2013-12-23 11:49:55 Published on Dec 23, 2013
The whole Devyani Khobragade affair also points to the distrust between New Delhi and Washington. Something which could have been resolved quietly was allowed to blow out of proportion. And both US and India are to blame for it.
Khobragade affair: Distrust between New Delhi and Washington?
"The arrest of the Indian deputy Consul General in New York, Ms Devyani Khobragade, earlier this month, based on a complaint by her maid of underpayment and on charges of visa fraud, has ballooned into a full-blown diplomatic crisis between India and the US, with India revoking several privileges extended to American diplomats in India. More than anything else, what has inflamed public opinion in India is the mistreatment of the diplomat in custody. For India, this was the latest in a series of frictions over Indian protocol and US procedures involving Indian diplomats as well as leaders like former President APJ Abdul Kalam, then serving defence minister George Fernandes, Neena Malhotra, then Ambassador Meera Shankar and then Consul General Prabhu Dayal.

Aside from being breach of the Vienna Convention of 1963 on consular affairs, the Devyani Khobragade affair appears to be a reflection of the importance the Obama administration gives to dealing with the problem of human trafficking. Liberals and conservatives have pushed the humanitarian agenda in US foreign policy since the end of the Cold War. This is particularly true of the Obama Administration with the ascent of liberals like Susan Rice and Samantha Power in key positions. This frequently puts India and the US at odds despite both being liberal democracies.

Reports suggest that more than 20 million people are trafficked around the world. Human trafficking, described by many as "modern slavery", is seen as a "low-risk, high-paying crime", and is estimated to be a $2 billion worth industry. In many cases, the US is either the destination or the transit country. Therefore, the US has stepped up efforts against human trafficking. In 2012, President Obama had described the fight against human trafficking as "one of the great human rights causes of our time" and vowed that the United States will continue to lead the fight. The Obama Administration has also renewed sanctions on Eritrea and North Korea for their poor records on fighting human trafficking.

The Indian diplomat’s maid, Sangeetha Richards, who has complained against the Indian Deputy Consul General, has been given a visa T or status of "Continued Presence", a temporary immigration status given to victims of human trafficking. The US government has also come out with a statement that it had "evacuated" the maid’s family to the US because of the threats they supposedly faced in India. So, the US has linked the whole issue to human trafficking and it appears that the humanitarian bureaucracy in the State Department pushed for the arrest of the diplomat.

This, then, is a good time to look at the US’ laws and policies on human trafficking. Every year, the US comes out with a comprehensive report on Trafficking in Persons. In 2000, the President’s Interagency Task Force to Monitor and Combat Trafficking was set up to coordinate federal efforts in the fight against trafficking. Other laws pertaining to human trafficking include the 13th Amendment pertaining to prohibition of slavery and involuntary servitude. In 2000, the US passed a law called the ’’Victims of Trafficking and Violence Protection Act. According to this law, a domestic help who complains about not receiving minimum wages can get a three-year T Visa, which can then be converted into full residency status. Another Act passed in 2008, the Wilberforce Trafficking Victims Prevention Reauthorisation Act, called for more action against the menace and more importantly, has provisions meant to ensure that domestic workers working even with foreign diplomats are protected.

More recently, the Obama administration passed a law called the Trafficking Victims Protection Reauthorization Act of 2013. It also created a White House Forum to Combat Human Trafficking brings together advocates, service providers, researchers and academics, business leaders, faith leaders, leaders in the technology community, law enforcement, and local, state and federal government leaders to discuss strategies for countering trafficking in persons. Moreover, it instituted a President’s Award to reward efforts in combating human trafficking. So, there are several provisions in US law against human trafficking, some of which can even be applied to diplomats. Further, the Protocol on human trafficking, to which both India and the US are signatories, defines trafficking as: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs... The consent of a victim of trafficking in persons to the intended exploitation set forth shall be irrelevant where any of the means set forth have been used.

US laws also have similar definitions. The US has taken action against diplomats from Kuwait, Saudi Arabia and Taiwan1 under the provisions of these laws for offences similar to those alleged on Khobragade. So, if Sangeetha Richards was underpaid and since Devyani Khobragade was in a position of power vis-à-vis her maid, her case would indeed fall under the purview of the protocol as well as US laws.

However, what is worrying is that it appears that the US government decided to accept the maid’s word for it, without actually investigating the truth. For all we know, making allegations of exploitation against her employer and using US laws could have been an easy entree to the US for the maid and her family. The fact that the maid had free food, board and a much more comprehensive insurance coverage than many US citizens do should also have been taken into account while looking into allegations of underpayment. Often, thanks to misplaced enthusiasm, humanitarian NGOs in the US wittingly or unwittingly become part of the system and end up promoting immigration and human trafficking instead of stopping it. So, the role of the NGO, Safer Horizon, which is helping the maid, also needs to be investigated.

Even if there was truth in the allegations, since the alleged offender is a diplomat, the US could have handled matters with much more finesse and tact and treated her much better after she was arrested. After all, Section 3 of Article 41 of the Vienna Convention 1963 does state that if criminal proceedings are instituted against a Consular official, they "shall be conducted with the respect due to him by reason of his official position". Even the Bureau of Diplomatic Services of the State Department’s Guidance for Law Enforcement and Judicial Authorities with regard to Diplomatic and Consular Immunities directs them to accord "maximum degree of respect possible under the circumstances" to diplomatic and consular officials if action is taken against them for any crime. Clearly, the actions of the US marshals were at variance with this instruction.

The US also ’evacuated’ the maid’s family two days before the diplomat’s arrest. Media reports in India suggest that acting Assistant Secretary in the Bureau of Democracy, Human Rights and Labor in the State Department, Uzra Zeya (also a former minister counsellor for political affairs in New Delhi) in whose house Ms. Richards’ in-laws had worked played a role in this. By acting the way it did, the US has definitely undermined friendly relations with India and has significantly diluted the public goodwill that exists towards it in India.

The US should ideally have given India more time to look into the details of the case and allowed it to withdraw the diplomat quietly. If at all found guilty of anything, she could have been prosecuted once back in India. It should have been left to the Indian judicial system to decide on the merits of the case. However, by evacuating the maid’s family, the US has indirectly contributed to human trafficking and has cast aspersions on the Indian judicial system and how Indian democracy functions.

India is also to blame for not recognising the gravity of the gathering situation and the recent record of incidents involving domestic helps of foreign diplomats in the US. The incident has led to the government accelerating efforts to make domestic helps of officers posted abroad contract workers to ensure that local labour laws are not broken. The proposal is to have a pool of domestic workers on contract to the Government of India who will be sent abroad if required. This would ensure that diplomats are not personally culpable and with contracts in place, the issue of minimum wages will be addressed.

The whole Khobragade affair also points to the distrust between New Delhi and Washington. Something which could have been resolved quietly was allowed to blow out of proportion. By jumping into the case without actually verifying the truth and without listening to both versions, the US might have ended up encouraging human trafficking/illegal immigration instead of combating it—a clear case of what happens when activism takes precedence in decision making, whether domestic or at the State Department.

India should seize the moment to begin a comprehensive dialogue on consular issues. The crisis is a good opportunity for India to introspect and to clean up the issue of domestic helps of officers posted abroad, to ensure that these officers do not run afoul of local laws. It is also a good lesson for India—it must pay more attention to the consequences of humanitarian activism in the US and other countries sin the West. New Delhi must learn to engage these groups as well as to insulate its daily functioning from humanitarian attacks. It is not enough to blame the rest of the world.

  1.    For details on these, please see http://blogs.cfr.org/asia/2013/12/19/some-background-for-the-khobragade-case/ and see http://www.justice.gov/usao/mow/news2011/liu.com.html for a strikingly similar case on a Taiwanese diplomat. More details on the action taken against the Saudi diplomat can be seen at http://www.thedailybeast.com/witw/articles/2013/05/03/u-s-authorities-free-two-women-in-raid-saudi-diplomat-residence.html.

(The writer is an Associate Fellow at Observer Research Foundation, Delhi)

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