Saturday, December 14, 2013

Devyani Khobragade Case - Consular Immunity or Vulnerability?

Two acts which deserve to be condemned strongly occurred in the Indian deputy consul general Devyani Khobragade episode – firstly, prima facie, it appears that the officer violated the law of the receiving State, namely, the US and secondly, the public humiliation meted out to the official by the act of handcuffing by the law enforcement authorities. While indicting an Indian diplomat for breach of US laws may not adversely affect bilateral ties, the act of handcuffing a lady diplomat in public is likely to have repercussions. Now to the facts of the case and the legal analysis:

Devyani Khobragade, deputy consul general for political, economic, commercial and women’s affairs, Consulate General of India, New York, was arrested on the morning  of 13th December 2013 for allegedly presenting fraudulent documents to the United States State Department in support of a visa application for an Indian national employed as a babysitter and housekeeper at Khobragade’s home in Manhattan.

The arrest of Ms Khobragade, 39, was announced by Preet Bharara, US attorney for the Southern District of New York.

According to the allegations in the criminal complaint unsealed in the Manhattan federal court, Khobragade prepared and electronically submitted an application for an A-3 visa through the website for the US department of state's consular electronic application center for an Indian national ("Witness-1"), who was to be the personal employee of Khobragade beginning in November 2012. The visa application stated that witness-1 was to be paid $4,500 per month in US dollars. Khobragade and witness-1 also signed an employment contract for witness-1 to bring to Witness-1's interview at the US embassy in India in connection with the visa application, which witness-1 did at Khobragade's direction. The first employment contract stated, among other things, that Khobragade would pay witness-1 the prevailing or minimum wage, whichever is greater, resulting in an hourly salary of $9.75.

The complaint said Khobragade knew that the first employment contract that she caused witness-1 to submit to the US state department in connection with witness-1's visa application contained materially false and fraudulent statements about, among other things, witness-1's hourly wage and hours worked. Prior to the signing of the first employment contract, Khobragade and witness-1 had allegedly agreed that she would pay Rs 30,000 per month, which at the time was equivalent to $573.07.

The complaint said at 40 hours per week, with approximately 4.3 weeks in a month, $573.07 equates to a rate of $3.31 per hour. However, Khobragade instructed witness-1 to say that she would be paid $9.75 per hour, and not to say anything about being paid 30,000 rupees per month. Khobragade also instructed witness-1 to say that witness-1 would work 40 hours per week, and that witness-1's duty hours would be 7am to 12.30pm, and 6.30pm to 8.30pm. She told witness-1 that the first employment contract was a formality to get the visa.

After the first employment contract was submitted to the United States department of state, Khobragade told witness-1, that witness-1 needed to sign another employment contract (second employment contract). Khobragade and witness-1 signed the second employment contract, which provided that witness-1's maximum salary per month including overtime allowance will not exceed 30,000 rupees per month. The second employment contract does not contain any provision about the normal number of working hours per week or month. The complaint said witness-1 worked for Khobragade as a household employee in from approximately November 2012 through approximately June 2013.

Khobragade, 39, was charged with one count of visa fraud and one count of making false statements, which carry maximum sentences of ten years and five years in prison, respectively. 

Prosecution sources said Khobragade was not arrested from her home or from her office, “but from somewhere else in Manhattan.” According to some sources, she was arrested while dropping her children to school.

Khobragade, who was produced on Thursday afternoon before US Magistrate Judge Debra Freeman, was released on $250,000 personal recognizance bond co-signed by three people, prosecution sources said. quoting a highly placed prosecution source stated “She has to surrender all travel documents and no new applications and her travel is restricted to the US with notice to pre-trial before interstate travel.”

“She is also not allowed to sponsor any visas, or have any direct or indirect contact with Witness-1 (the domestic worker) or the worker’s immediate family. She can, however, continue to work in whatever position she is working -- with the restrictions.”

While Bharara's office portrayed the Indian diplomat as having fraudulently brought a domestic help from India by promising mandatory US wages ($ 9.75 per hour) and underpaying her ($ 3.11 per hour), Indian officials presented a totally different and more complicated picture of the case. They said the housekeeper, Sangeeta Richard, has been absconding since June this year, and ''in this context the Delhi high court had issued an-interim injunction in September to restrain Ms Richards from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.''

The US Government
had subsequently been requested to locate Ms Richard and facilitate the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code, they added.
This is not the first time Indian consular officials have been involved in controversies involving domestic help. Earlier, Dr. Neena Malhotra who worked as a consul at the consulate in New York -- was asked to pay almost $1.5 million to her former domestic worker Shanti Gurung. Domestic worker Santosh Bhardwaj, Indian Consul General Prabhu Dayal’s housekeeper, had filed a lawsuit alleging forced labour and psychological coercion.  However, this is the first time a diplomat has been arrested. Earlier in 2011 Krittika Biswas, the daughter of a consular officer was arrested in New York on charges of sending obscene emails to her school teacher. (

This brings the focus back on the extent and scope of consular immunity.

Privileges and immunities available to consular officials are governed by the 1963 Vienna Convention on Consular Relations (VCCR). Consular immunity offers protection similar to diplomatic immunity, but the protection afforded is not as extensive, given the functional differences between consular and diplomatic officers.  For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.

The relevant provisions, namely, Articles 40 to 43 of the Vienna Convention deal with immunity of consular officers.

Article 40 – Protection of Consular Officers

The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent attack on their person, freedom or dignity.

Article 41 – Personal Inviolability of Consular Officers

Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.
Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Article 42 – Notification of Arrest, Detention or Prosecution

In the event of arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

Article 43 – Immunity from Jurisdiction

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:

Arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or
By a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.

It is also necessary and relevant to refer to the booklet published by the United States Department of State Bureau of Diplomatic Security entitled “Diplomatic and Consular Immunity – Guidance for Law Enforcement and Judicial Authorities”. At page 3 of this publication under the heading “Legal and Practical Basis of Immunity” it is provided as under:

“It should be emphasized that even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments. This is a crucial point for law enforcement officers to understand in their dealings with foreign diplomatic and consular personnel. While police officers are obliged, under international customary and treaty law, to recognize the immunity of the envoy, they must not ignore or condone the commission of crimes. As is explained in greater detail below, adherence to police procedures in such cases is often essential in order for the United States to formulate appropriate measures through diplomatic channels to deal with such offenders.”

The booklet under the sub-heading “US Department of State Policy” at page 14 states:

“It is the policy of the US. Department of State with respect to alleged criminal violations by persons with immunity from criminal jurisdiction to encourage law enforcement authorities to pursue investigations vigorously, to prepare cases carefully and completely, and to document properly each incident so that charges may be pursued as far as possible in the US. judicial system. The U.S. Department of State will, in all incidents involving persons with immunity from criminal jurisdiction, request a waiver of that immunity from the sending country if the prosecutor advises that but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. Upon departure, the Department will request that law enforcement issue a warrant for the person’s arrest so that the name will be entered in NCIC.” NCIC refers to National Crime Information Centre.

Article 41 of the Convention clear states that Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority. The Convention does not define the expression “grave crime”. Thus it will have to be inferred that the seriousness of the crime depends on the host country’s interpretation of the expression and on the decision of the judicial authorities. So also it is the prerogative of the host country’s court to decide whether the consular officer accused of such grave crime needs to be detained or not. In this case, the US is seen to be well within its rights to initiate action against the consular officer.

The immunity from jurisdiction as stipulated under Article 43 is only in respect of acts performed in the exercise of consular functions. This immunity is not absolute as in the case of immunity available to diplomatic agents.

The booklet referred to above unequivocally states that the State Department, in cases where a diplomat who enjoys immunity and is accused of a crime, will seek waiver of that immunity from the sending country but for such immunity he or she would prosecute or otherwise pursue the criminal charge. If the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Government will require that person to depart the United States and not return unless he or she does so to submit to the jurisdiction of the court with subject matter jurisdiction over the offense. It is pertinent to note that Article 45 of the Convention provides for waiver of privileges and immunities.

The US authorities, both judicial and law enforcement may well have been within their rights to indict the Indian officer. However, humiliating the lady official in public by handcuffing her is in breach of the same Vienna Convention. Sub-para 3 of Article 41 states that if criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay. The concerned authorities in New York probably did not deem it fit to follow all the relevant provisions of the Convention in letter and spirit while making the arrest thereby giving rise to a diplomatic spat between the two countries.

While India is within its rights to lodge a protest with the US the manner in which this incident has been handled, it must be reminded that it is in the process of prosecuting two Italian Marines on the charges of allegedly shooting and killing Indian fishermen outside India’s territorial waters in an Indian court and that India too will now be expected to follow the rules of International Law as applicable to that case.

Monday, November 18, 2013

Rezang La - The Last Stand of 13 Kumaon

This post is dedicated to the 123 men and officers of the C Company of 13 Kumaon (comprising of Ahirs hailing from the Ahirwal region of Southern Haryana) who, in the course of the 1962 Sino-Indian War, on 18th November 1962, fought with a zeal unparalleled in military history against a numerically superior enemy (the Chinese Army) and against all odds at Rezang La a pass on the south-eastern approach to Chushul in Ladakh in Jammu & Kashmir. 114 of these brave men were martyred.

A small memorial at Rezang La, reads: 

How can a Man die Better than facing Fearful Odds,
For the Ashes of His Fathers and the Temples of His Gods,
To the sacred memory of the Heroes of Rezang La,
114 Martyrs of 13 Kumaon who fought to the Last Man,
Last Round, Against Hordes of Chinese on 18 November 1962.
Built by All Ranks 13th Battalion, The Kumaon Regiment.

This battle has been compared by many military historians with the famed battles of Thermopylae fought between Greek and Persian empires in 480 BC and the incredible Saragarhi fought on 12 September 1897 in the North-West Frontier Province Battle by the 21 men of the 36th Sikh Regiment (currently the 4th Battalion, the Sikh Regiment) who gave up their lives in devotion to their duty fighting over 10,000 tribals. Both these battles are listed in the eight stories of collective bravery published by the UNESCO (United Nations Educational, Scientific and Cultural Organization). Like wise the ill clad and ill equipped but hardy Ahirs of the Charlie Company of the 13 Kumaon led by undaunted leadership of Major Shaitan Singh ferociously fought in blood freezing minus 30 degree temperature till there was nothing left in manpower and equipment.

Colonel N.N.Bhatia (Retd) has vividly described this heroic battle in Unforgettable Battle of 1962: 13 Kumaon at Rezang La which appears in the Bharat Rakhshak website. Mohan Guruswamy has also written a piece "Men of Steel on Icy Heights" in Bharat Rakshak.  It is this writer's endeavour to reproduce the narrative of that great battle and keep the memory of this great battle alive.

13 Kumaon was raised on 5 August 1948 at Kanpur by Lt Col HC Taylor with class composition of 50 percent each of Ahirs and Kumaonis. During the 1956 Reunion, Lt Col NS Krishna, the then Commanding Officer accepted the proposal of the Colonel of the Regiment, General KS Thimayya that the Regiment must have a 100% Ahir Battalion. Thus 13 Kumaon became an all Ahir battalion.

The Terrain
Running north to south, 40 km long and 5.6 km at its widest, Chushul is a narrow, sparsely populated, barren sandy valley across the water shed at altitude of 14,230 feet with towering mountains, high passes, where only the best of friends or worst of enemies may desire to meet. It is virtually close to the Chinese border. It is bounded in north by deep 160 km long clear salt water Pangong Tso (lake) running parallel to Indus River, the east and west by higher ranges rising over 19,000 feet and all weather airfield in the south. Pangaso changes colour with the phases of sun and moon. The Spanggur Gap is the opening in the eastern side that leads to the Spanggur Tso (lake). Like the Pangong Tso, it extends well into Chinese territory. Before the war commenced, the Chinese had built a road from Rudok in Tibet right up to the Spanggur Gap capable of carrying tanks. Chushul could be approached from Leh by going over the Chang La pass skirting the Pangkong Lake, while another route crossed the Chang La pass and took a deep turn to the east. For all Indian out posts in this sector from Daulat Beg Oldi to Damchok, Chushul was the nodal rallying point. Loss of Chushul as such would not have jeopardized defence of Ladakh region, but in those days its importance caught up with Indian psyche and pride. The terrain and climatic conditions favoured the Chinese and they made most of these in 1962 operations. Rezang La as the name suggests is a pass and is on the south-eastern approach to Chushul Valley. The feature was 3000 yards long and 2000 yards wide at an average height of 16,000 feet. Digging defensive positions and building shelters was hard going for the men were still not acclimatised and cold wintry winds made life even more hard.

The Battle

18 November 1962 was a Sunday. When the dawn broke it was unusually cold, with snow falling lightly over Rezang La.  

'C' Company's three platoons were numbered 7, 8 and 9 and had .303 rifles with about 600 rounds per head, and between them six LMGs, and 1,000 grenades and mortar bombs. The Chinese infantry had 7.62mm self loading rifles; MMGs and LMGs; 120mm, 81mm and 60mm mortars; 132mm rockets; and 75mm and 57mm recoilless guns to bust bunkers. They were much more numerous and began swarming up the gullies to assault Rezang La at 4 a.m. while a light snow was falling. 

The Battle of Rezang La commenced hours before the shelling that the rest of Brigade saw from a distance. In fact, the first Chinese attack was ‘silent’, with the intention to surprise the defenders of Rezang La, in which, the Chinese failed. 

At about 0400 hours, it was noticed that a large body of enemy troops, scrambling up through gullies towards a platoon post. Within no time every man of the Kumaon Company under Major Shaitan Singh was at ‘ready for action’ state. Every gully that descended to the dry bed of Rezang Lungpa was swarming with Chinese. It was still pretty dark. Major Shaitan Singh and his brave men were now certain to face a big attack. With bated breath they waited, their fingers on their triggers.

At about 0500 hours, when the dawn was just cracking, the first wave of Chinese assault was seen through their gun sights. Just when the Chinese came within range, Major Shaitan Singh ordered to open fire and the Company under Major Shaitan Singh let the attackers have it. Many of the Chinese soldiers fell; others continued to advance. But with every weapon of the Company firing, the gullies were soon full of dead and wounded Chinese. Having failed in a frontal attack the Chinese let loose a murderous shelling. It was this intensive shelling which made a spectacular display of the Chinese superiority in weapons. Under the cover of this intense shelling the Chinese infantry came again in swarms. 'C' Company, now severely depleted, let them have it once again. Position after position fell fighting till the last man. 'C' Company had three JCOs and 124 other ranks with Major Shaitan Singh.

Evidence of large number of the enemy casualties came, when Rezang La was visited three months later.  There were no bunkers left on Rezang La. Evidence of this was seen when Rezang La was revisited in February 1963, but there was no sign of panic or withdrawal. According to those who visited Rezang La, three months later:-

“The dead men were found in their trenches, frozen stiff, still holding their weapons. Broken Light Machine Gun bipods, and some men holding only the butts of their rifles while the remaining weapon had blown off, bore witness to the enemy fire.”

The odds against the Company were heavy, superior numbers and fire power was beginning to tell. But the Rezang La company defended locality was being astutely defended, till the end. Finding his Company surrounded, after the enemy shelling, Major Shaitan Singh reorganised the position and resited the automatic weapons to take on the enemy attack. It was during the re-organisation, which Major Shaitan Singh was personally supervising, that he received a burst of fire in one arm. After a while, he received another Light Machine gun burst in his abdomen. His mortal remains were found three months later.  By any test, every man of the Company who fought and died at Rezang La was a hero. The name of Major Shaitan Singh, who fired these men with the spirit that prefers death to surrender, will live forever in the pages of India’s history. The Kumaonis "fought till last man last bullet" at the icy heights of Rezang La.  The nation’s highest military award for gallantry the Param Vir Chakra was conferred on him posthumously. His body was flown to his hometown, Jodhpur, where it was cremated with honours befitting a national hero.

Few events in the annals of heroism can match this. 'C' Company gave its all to defend Chushul, a Ladakhi village, which for one brief moment in Indian history came to symbolise national honour. At Thermopylae on 18 September 480 B.C., 1200 Greeks led by King Leonides of Sparta died fighting the Persian King Xerxes' mighty bodyguard called the Anusya or Companions. But Leonides was fighting for a great prize. In July 481 B.C. the Oracle of Delphi told him that in the next war with Persia either the King will die or Sparta would be destroyed. Leonides thus died to save Sparta. But 'C' Company willingly sacrificed itself to save a little village and that makes its sacrifice all the more glorious. That is why Indians must never forget Rezang La.

[A few years ago, this author had the opportunity of interacting with the men of 13 Kumaon during a visit to the Kumaon Regimental Centre at Ranikhet]

Thursday, September 26, 2013

Twin Terror Strikes in J & K - A Repeat of Kaluchak?

On 26th September, at about 0645 hrs, heavily-armed four-member fedayeen group dressed in battle fatigues belonging to the Pakistan-based terror outfit Lashkar-e-Taiba (LeT) carried out an attack on Hiranagar Police Station on Kathua, Jammu killing six persons, including four policemen and two civilians and thereafter escaped in a vehicle and struck an Indian Army base (home to 16th Cavalry) around 0715 hrs at Samba where at least three army personnel including the second-in-command Lt. Col. Bikramjeet Singh is reported to have been martyred. A Colonel-level Commanding Officer (CO) of the unit was among the three injured in the attack. At the time of this writing, fierce firefight was going on between the security personnel and the terrorists. [Update: According to Army sources the three terrorists were neutralised in or around 1630 hrs. A lesser-known militant outfit 'Shohada Brigade' today claimed responsibility for the twin attacks].

This attack is not the first time that an army installation has been attacked by Pak-based terrorists. In May 2002 about three terrorists reportedly crossed the Line of Control from Pakistan and boarded a bus at Vijaypur. When the bus neared Kaluchak, they shot the driver and the conductor and opened fire on the passengers. On hearing the shots in the bus the Indian army soldiers fired in their direction. The terrorists who were dressed in Indian army fatigues, while returning fire, attempted to escape in the direction of the Army's family quarters, located on the main road. They also threw grenades on some vehicles parked in the vicinity. Upon entering the family quarters they again fired on Army family members present in the premises. The terrorists were eventually cordoned off and killed by the Army.

There were a total of 31 killed, including 3 Army personnel, 18 Army family members and 10 civilians. There were 47 wounded including 12 Army personnel, 20 Army family members and 15 civilians. The dead included ten children. All the three terrorists killed in this incident were Pakistani nationals.

The lessons of Kaluchak probably were not learnt leading to the present attack at Samba. There have been reports that the fedayeen entered Jammu in the early hours of the morning from across the LoC and carried out the attack. This theory seems far-fetched, for the group appears to have a thorough knowledge of the topography and the exact location of its intended target: the Officers’ Mess of the 16th Cavalry. This could have been possible only with fair amount of intelligence and detailed recce of the target. There also seems to have been absolutely no communication between the police station which was attacked and the army base where the terrorists later struck. Had there been some communication, the terrorists could have been waylaid and neutralized before they got access to the base. The army and the police have a lot to answer for this lack of coordination.

The attack comes in the backdrop of a proposed meeting between the Indian Prime Minister and his Pakistani counterpart set to take place in New York on the side lines of the United Nations General Assembly session. Reacting to the news of the militants' attack, the main opposition party the Bharatiya Janata Party dismissed the idea of a dialogue with Pakistan as a potential solution to tackle border issues.

"How can we have talks with a PM (referring to the Pakistani PM) who has no control over his Army and the ISI," BJP’s Yeshwant Sinha questioned. "If Pakistan Army doesn't want talks to be held with India, what is the point of taking to a PM who has no control over his Army?" Sinha hit out.

There is some substance in this argument. How can peace process go ahead when one of the constituents to the peace parleys is going to carry on a low-intensity conflict? Secondly, why should India take upon the responsibility of strengthening the civilian democratic institutions in Pakistan? Especially, considering the fact that a major chunk of Pakistani society considers India to be an arch enemy. It is also to be borne in mind that there have been innumerous cease fire violations after Nawaz Sharif came to power. Further what is the guarantee that Sharif truly aspires for peace with India considering the fact there is a K-Plan pursuant to which the Kashmir-cell (located in his office) would work on propaganda, raging separatist sentiments in the Valley and stage infiltration and cross-border fire across the LoC?
Pakistani establishment and its proxies have gone unpunished for all the acts of terror perpetrated against India. New Delhi has yet to answer as to the manner in which they responded to all provocations since Mumbai 26/11 to the beheadings of Indian soldiers by Pakistani troops on the LoC. New Delhi, simply put, has never mustered the courage or political will to give a fitting reply to this undeclared war waged by Pakistan.

The ruling alliance in New Delhi seems to have a penchant for talks with Pakistan, oblivious of the situation on the ground. There certainly is a disconnect between the political masters sitting in air-conditioned offices and security forces tackling the terrorists in the border areas of Kashmir. This is apparent from the statements made by the ministers and politicians. It is difficult to see the rationale of having talks between heads of states when an undeclared war is being fought between the two neighbours. 

As the situation stands, the only way in which India can respond to Pakistan is to deter Pakistan from engaging in acts of terror aimed at India. For this, there is an urgent need to draw up a policy of carrying out targeted killings of personnel belonging to Inter Services Intelligence (ISI)/Pakistani Army who are engaged in training these proxy elements. Secondly, India must have an undeclared policy to target all terror camps located in Pak-Occupied Kashmir (PoK) and elsewhere in Pakistan. Any action of this nature would also be covered under Article 51 of the UN Charter.