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US gives breather, takes bottle

Devyani Khobragade

New Delhi, Dec. 23: India and the US have broken a 10-day deadlock over the arrest of Devyani Khobragade in New York, gifting each other Christmas concessions that protect the diplomat from arrest and court appearance and allow American diplomats here continued access to cheap liquor.

The UN has accredited Khobragade as a diplomat at India’s permanent mission to the global body in New York, a position that even US officials accept gives her immunity from arrest even though the charges against her continue to stand.

The accreditation was made possible by the very US state department that had filed the complaint of visa fraud before the Manhattan court that led to Khobragade’s arrest on December 12.

The state department cleared Khobragade’s application for accreditation to the UN after Indian interlocutors laid that down as the “essential first step” if the US wanted to resurrect relations in hectic negotiations over the past three days, senior officials said.

The department will not contest India’s request before a Manhattan federal court that Khobragade be exempt from future court appearances and fresh fingerprinting, making the exemption a fait accompli, the officials said. This was the second key condition set by India.

In exchange, American diplomats have won an extension to the December 23 deadline India had set for the end of free imports, airport passes and for the submission of personnel details, officials said. The American commissary had stocked itself up on December 14 but the imposition of standard duties on imports had cast a shadow ahead of the party season.

The negotiations included two meetings between US ambassador Nancy Powell and senior Indian officials like national security adviser Shivshankar Menon and foreign secretary Sujatha Singh. US deputy secretary of state William Burns also made multiple phone calls to Indian diplomats over the past four days, officials confirmed, apart from two phone conversations between foreign secretary Singh and her US counterpart Wendy Sherman.

Powell requested an extension on the deadline for India’s strict new norms for US diplomats — declared in protest against Khobragade’s arrest — during a meeting with senior officials today.

The state department clearance is mandatory for foreign diplomats to be posted at the UN headquarters in New York, and is normally a routine process.

But when Khobragade’s application had reached the state department last Thursday, the officials there knew well that the diplomat was facing charges of visa fraud and falsifying documents that could send her to jail for 15 years.

“They had to overlook the complaint filed by their own state department colleagues, knowing fully well that the clearance would pave the way for UN accreditation that enhances Devyani’s immunity from prosecution,” a senior official said. “That they did it is a tribute to the back-channel diplomacy that we’ve seen over the past few days.”

The US has claimed that Khobragade in her previous role as deputy consul-general in New York was only entitled to privileges under the Vienna Convention on Consular Relations — that allow for arrest in case of a “grave crime”.

India had contested this position, citing instead the Vienna Convention on Diplomatic Relations, that provides full immunity, and contending that the charges against her were not grave enough to justify arrest even under the pact on consular relations.

But both the US and India agree that all diplomats at the UN enjoy full immunity under the Vienna pact on diplomatic relations — effectively protecting Khobragade from arrest.

Manhattan’s US attorney Preet Bharara can continue to pursue the charges against Khobragade based on the complaint filed by the state department’s Diplomatic Security Service — they will not be dropped because they pertain to an alleged crime that predates her new-found immunity.

The Manhattan court of judge Debra Freeman also continues to hold Khobragade’s diplomatic passport as surety against her bail, and the diplomat cannot leave the US without violating law though she is free to travel within the country, officials said.

But the assurance that Khobragade cannot be arrested and does not need to appear in court while she serves at the UN mission means the stint allows India and the US to work on an out-of-court settlement.

It also gives the US state department a chance, Indian officials said, to quietly tell Bharara it miscalculated the impact Khobragade’s arrest would have on India-US relations, and request him to drop the charges.

For American diplomats here, the extension of the deadline to enforce import duties means the 2013 Christmas celebrations need not be muted. They need not worry about submitting salary details of their personal staff and the visa status of their own spouses this week.