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- There is nothing ‘normal’ about diplomatic immunity

The good thing about the Khobragade Affair, of course, is that no one died. This might seem obvious — but it’s worth pointing out because editorial boards in American newspapers have managed to write scolding leaders about Devyani Khobragade without once mentioning Raymond Davis. So we have the Washington Post this week detailing the infirmities of the Indian government’s case, especially its failure to appreciate due process and the independence and even-handedness of the American justice system (everyone gets stripped, so what’s special about Devyani?) without once referring to the case of the security contractor, Raymond Davis. Raymond Davis is an American who shot two Pakistani men dead on a crowded street in Lahore and then made his getaway in a car that had run over and killed another man in its hurry to rescue him from the legal consequences of his actions.

Unless we are willing to grant Americans an all-purpose ‘war on terror’ alibi, it’s reasonable to expect a considered piece on the Khobragade case to examine the way in which the government of the United States of America invoked the Vienna Convention to claim diplomatic immunity for an undercover security contractor who had killed two Pakistani citizens. Davis, one of America’s legion of armed mercenaries, was attached to the Lahore consulate and not listed as a diplomat at the time of the killings. And yet, President Obama intervened to spring him from a Pakistani jail, invoking diplomatic immunity as a sacred protocol: “There’s a broader principle at stake that I think we have to uphold.”

The Pakistani government made exactly the same arguments that the American state and its proxies are making in the Khobragade case: Davis did not have diplomatic immunity, he had committed a grave crime that would override any consular protections he might have had, the matter was sub judice and the law ought to be allowed to take its course. None of these protestations counted for anything: using its enormous leverage over the Pakistani state, the US government twisted some arms, paid some blood money, and Davis and his henchmen were spirited away to America, immune to the consequences of their actions.

Regardless of where our sympathies lie in the present case — we could be on Sangeeta Richards’s side as the exploited maid or lined up behind Devyani Khobragade because she was strip-searched by American brutes — it’s hard to believe that American form and precedent in matters of diplomatic immunity is irrelevant to the Khobragade affair. Not because they are exactly analogous — Khobragade didn’t, after all, kill two people in cold blood while Davis did — but precisely because the American government, which managed to stretch dubious consular immunity to cover murder committed by a contracted mercenary, is now citing due process to deny immunity to a career diplomat.

Does American wrongdoing in Lahore justify Indian wrongdoing in New York? In normal circumstances, the answer would be no, it doesn’t. A thief can’t protest his conviction on the grounds that some other thief was let off on account of a miscarriage of law. The trouble is that the very concept of diplomatic immunity attempts to carve out an exceptional immunity from the consequences of wrongdoing. There’s nothing ‘normal’ about diplomatic immunity: it is an extraordinary privilege that exists because a community of nation-states binds itself to a convention that defines the nature of this immunity and its scope.

The convention is respected because it is in the interest of every nation-state with a diplomatic service to respect it. There is no international court that ‘applies’ the rules of the convention or monitors the way in which diplomatic immunity is conceded or withheld. The convention works because of prudential reciprocity: do unto others as you would have them do unto you.

This is why the Washington Post, or indeed any newspaper, Indian or foreign, that chooses to pronounce on the diplomatic spat over Devyani Khobragade, needs to consider the Raymond Davis case as a relevant precedent. Not to do so is simply a form of intellectual evasion.

A neutral’s view of US behaviour in the Davis case would conclude that the Americans drove a double-decker bus through the Vienna Convention’s nuanced definitions of diplomatic immunity. The Americans did this because they could. The spirit of the Vienna Convention allows a nation to waive diplomatic immunity if the crime committed by its representative is so egregious that justice would be served by a waiver. In practice, most nations choose not to issue such waivers. Still, to go to the other extreme, as the US did, to fabricate diplomatic immunity for a trigger-happy mercenary, creates a precedent not just for the bilateral relationship between the US and Pakistan, but for the workings of the Vienna Convention.

Not a precedent in a legal sense; we are unlikely to see India’s external affairs ministry citing Davis in extenuation. But the Davis case makes it much harder for the US to make the due-process argument plausibly. When a powerful state uses its power to flout the rule of law in a weaker country that is beholden to it, its claim to be a nation of laws at home becomes less credible. The Raymond Davis incident was a cautionary tale, and the lesson that other nations took from it was that the boundaries of the Vienna Convention’s immunities are defined by the pressure that the state concerned can bring to bear upon the host country.

This accounts for the Indian government’s faintly comic attempts at punitive reciprocity in the wake of Khobragade’s arrest. My personal favourites are a) the instruction to the US embassy and the American Centre not to screen films without a prior license, and b) the cancellation of duty-free liquor permits. Indians do shrill petulance better than they do manly truculence, so I don’t see the American state department trembling any time soon, but what we are seeing here is a clumsy but single-minded attempt to follow America’s lead in the matter of defining diplomatic and consular privilege.

The affaire Khobragade is the Davis case’s fraternal twin. There are lessons in it for both India and the US. Indian diplomats in particular, and India’s middle class in general, should reflect with shame and contrition on the way in which they treat their domestic servants. ‘Help’ sounds more genteel than ‘servant’, but the euphemism does little to improve the unregulated and oppressive conditions in which a domestic worker in India lives and labours.

The American foreign-policy establishment and American editorialists might reflect upon the po-faced hypocrisy of the American state, the difficulty in sustaining this double-standard in a world where the US counts for less than it once did and the damage that America’s ‘Don’t do as I do, do as I say’ motto does to both the international compacts and the ‘world community’ that otherwise figure so largely in its rhetoric.