The Telegraph
Saturday , January 11 , 2014
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Was she… and can she…?

Even if Devyani gets a diplomatic visa as things stand now, she will face a restraint similar to that placed on Fidel Castro (in picture) who was permitted to visit the UN but not any other place in the US outside New York

Washington, Jan. 10: Indian diplomat Devyani Khobragade left behind a trail of questions when her plane took off for New Delhi on Thursday. The Telegraph tries to answer some of the questions.

Was Khobragade expelled by the US?

It will remain a matter of dispute between New Delhi and Washington. On January 8, Khobragade was accorded all the privileges and immunities of a diplomatic envoy in her new job as counsellor at the permanent mission of India to the UN in New York. At the same time, the US requested India to waive her immunity so that she can be prosecuted. The next day, India turned down the US request.

It is India’s contention that simultaneously the external affairs ministry transferred Khobragade to the headquarters and she left for New Delhi because of the transfer. But the US insists that she was expelled because India refused to waive her immunity and let her face prosecution.

Is she persona non-grata in America now?

According to normal diplomatic practice, Khobragade is now ineligible for a US diplomatic visa, which she will need to enter the US on her diplomatic passport. However, if India decides to send her to New York on a short-term assignment at the UN, such as the annual General Assembly, the US has to give her a diplomatic visa under what is known as the “Headquarters Agreement” between the UN and the US under which the international community agreed to base the UN on American soil.

But if that happens, she cannot travel anywhere outside New York in the US, a restraint which the US placed on its “enemies” like Fidel Castro, Yasser Arafat or Muammar Gaddafi when they went to the UN General Assembly.

What if Khobragade returns to America? Will she be arrested?

Preet Bharara, the US attorney for Manhattan, has told the trial judge that the charges against Khobragade will remain pending until such time as she can be brought to court to face the charges, either through a waiver of immunity or her return to the US in a non-immune status. Till then, the legal position is that “this defendant is unavailable because her whereabouts are known but (her) presence for trial cannot be obtained by due diligence or (she) resists appearing at or being returned for trial”.

Why was there confusion about her departure?

The state department was deliberately vague in its communication with Bharara about Khobragade’s whereabouts on January 9 afternoon, ostensibly because it wanted to tamp down the whole issue which had got out of hand. As a result, Bharara was left with the impression that Khobragade had left the US and wrote to the trial judge in so many words, a letter which he took down from his US attorney website an hour after it was put up. India played along because it gave New Delhi a sense of what might happen when Khobragade actually flew out of New York a few hours later. The confusion convinced India that her departure would be without any hitch.

Khobragade’s lawyer has said she is leaving with her head held high? Does this bear out against the indictment?

It is to make such tall claims that lawyers are paid exorbitant fees in the US. It is India, not Khobragade, who has emerged tall with its head held high in the eyes of the world from this episode. Along Washington’s “Embassy Row”, opinion is unanimous that India stood up to American bullying and proved that it cannot be pushed around even by the world’s only superpower on its own soil. The global diplomatic community is grateful that the external affairs ministry salvaged the Vienna Conventions from American tampering with all the power at its command and proved their continued relevance in state-to-state dealings.

What was the give and take?

The end of the episode was a compromise worked out between India and the US to move beyond the Khobragade arrest to which bilateral relations were becoming captive. India insisted that if the US did not recognise Khobragade’s immunity as a consular officer, it had other means to secure her immunity through the UN and succeeded in doing so. The US strictly followed established procedures in granting her immunity, then seeking a waiver and asking her to leave when India refused.

Was Khobragade flown out by the Indians the same way the Americans got out the Richard family?

The Americans did not know precisely when and how Khobragade was departing New York because India kept it a closely guarded secret until after her flight had crossed out of US air space. There was no lookout notice for her in New York. But the state department had no objection to her leaving. In fact, it is their contention that they asked her to leave the US.

Was Khobragade on an Indian plane? Could the US government have asked the plane to return?

Khobragade’s departure on an Air India flight was considered on January 9 morning but the plan was abandoned in order not to bring Air India also into the vortex of the swirling controversy in case something went wrong. Once the state department asked for her departure, it was considered safe for her to take any commercial flight.

A request for a plane to return to its takeoff point is usually followed up by scrambling fighter aircraft to escort the flight back by coercion if the pilot refuses. The best-known example of this was in 1985 when Ronald Reagan forced an Egypt Air plane carrying Palestinian hijackers of the cruise ship Achille Lauro with F-14 Tomcats to land at a Nato base in Sicily where the hijackers were arrested.

What if Devyani is posted in a country like the UK that has a special relationship with the US? Can that country send her to the US to be arrested?

The UK may have a special relationship with America, but Whitehall has a long tradition of meticulously following international treaty obligations unlike the White House which is often unilateralist. The UK is a signatory to the Vienna Conventions and follows them in letter and spirit. Witness Britain’s treatment of Julian Assange who has been living at Ecuador’s embassy in London for a year and a half: the UK has strictly followed diplomatic conventions in this case and can be counted on to do so if Khobragade is posted to London.

Will the privileges of US diplomats in India be restored?

Indications are that US diplomats are unlikely to get back any special privileges they had anytime soon. The mood in the country is in favour of strict reciprocity with the Americans. The tit-for-tat expulsion of a US diplomat from New Delhi shows that although Khobragade is back home, the wounds in Indo-US relations are still raw and will remain so for a considerable time.

What will happen to Sangeeta Richard now?

Richard is the biggest gainer in this whole chain of events. Opinion persists that she and her family managed to take both the Indian and the US governments for a ride so that they could live the American dream. Prospective immigrants to the US normally wait years or decades to realise their dream. The maid swung it in a matter of months for herself and her family. In all likelihood, they will remain in the US as new immigrants.