The Khobdagade Row: Will Pragmatism or US Arrogance Decide Course of Action?

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cavity search, Deputy Consul General at New York, Devyani Khobdagade, diplomatic immunity, India, MEA, minimum wage, Preet Bharara, Sangeta Richards, State Department, US, visa fraud

Devyani Khobragade, India’s former Deputy Consul General at New York the leaving federal court.

On Christmas Eve 2006, inside Baghdad’s heavily fortified Green Zone, Andrew Moonen, an off-duty Blackwater operative, had just left holiday party. Witnesses said that he was drunk as he walked through the “Little Venice” section of the zone, when he encountered Raheem Khalif, an Iraqi bodyguard of Vice President Adil Abdul-Mahid. “Between 10:30 and 11:30 om, the Blackwater contractor, carrying a Glock 9 mm pistol, passed through a gate near the Iraqi Prime Minister’s compound and was confronted by the Iraqi guard who was on duty,” according to a US Congressional investigation. “The Blackwater contractor fired multiple shots, three of which struck the guard, then fled the scene.”

Blackwater officials confirm that within days they whisked the contractor safely out of Iraq, which they say Washington ordered them to do. Iraqi officials labelled the killing a “murder.”

In spite of the outcry, no serious criminal investigation was launched against Moonen to prosecute him. In fact, after Blackwater had to sack him, he was back in the Middle East working on another assignment of the US Department of Defence.

At noon of 16 September, 2007, Blackwater guards escorting a US State Department convoy unleashed what has come to be known as the infamous Nissour Square Masssacre that left 17 innocents Iraqis dead and 16 critically wounded. It must be noted that Blackwater was a ‘private security contractor’ employed by the State Department to protect its personnel and assets in Iraq. Rather than immediately launching an investigation into the massacre and prosecuting the guilty, the US State Department, in collusion with Blackwater, did all it could to prevent an investigation, let alone a prosecution of the guilty. In fact, they tried to portray the incident as an attack on the convoy by Iraqi insurgents and the use of lethal force as a valid response. Eric Prince, the owner of Blackwater and a former US Special Forces Soldier claimed, “Among threats identified were men with AK 47s firing on the convoy, as well as approaching vehicles that appeared to be suicide bombers. The Blackwater personnel attempted to exit the area but one of their vehicles was disabled by enemy fire. Some of those firing on this Blackwater team appeared to be wearing Iraqi National Police uniforms, or portions of uniforms. As the withdrawal occurred, the Blackwater vehicles remained under fire from such personnel.’

Interestingly, among the first of the US forces who arrived on the scene of the Nissour Square carnage, the 3^rd Battalion, 82^nd Field Artillary Regiment of the 2^nd Brigade, 1^st Cavalry Division and who had immediately conducted an on-site investigation, had an entirely different opinion of the sequence of events. Lt. Col.  Mike Tarsa, who headed this force, reported that his soldiers combed the scene but found no bullets from AK 47 rifles or BKC machine guns used by Iraqi military and police that Eric Prince had alleged were fired. But they did find an abundance of evidence of ammunition from US manufactured weapons, including M4 rifle 5.56 mm brass casings, M240B machine gun 7.62 mm casings and M203 40 mm grenade-launcher casings. Lt. Col. Tarsa bluntly concluded that there was “no enemy activity involved,” determined that all of the killings were unjustified and labelled the shootings a “criminal event.”

When continued outrage compelled the US to order a FBI investigation, and even though the crime scene was compromised to enable it to collect evidence that would have been otherwise easily possible, the FBI still found 14 of the killings “unjustified and violated deadly-force rules in effect for security contractors in Iraq.”      

Did this compel the US to allow Iraq prosecute the perpetrators, or itself initiated prosecution? The answer is a big no.

As early as June 27, 2004, Paul Bremer, the chief of the Coalition Provisional Authority of Iraq following the 2003 invasion, who had sweeping powers to rule by decree, had issued a decree known as the Order 17 granting sweeping immunity to private contractors working for the United States in Iraq, effectively barring the Iraqi government from prosecuting contractor crimes in Iraqi domestic courts. And even though Bremer had allegedly handed over ‘sovereignty’ to the Iraqi government much before the two crimes I have mentioned above had been committed, the US State Department claimed that their immunity was still valid and the decree was still in force.

In effect, the US State Department believes that even private contractors working for the US government on foreign soil enjoys immunity against criminal prosecution of any kind, let alone by the domestic government, even if accused of massacre of civilians, but an accredited diplomat representing a sovereign government on US soil doesn’t enjoy any kind of immunity against prosecution even if the charges may just be of paying less wage to her domestic help or declaring to the US government, falsely, that the said domestic help had been paid the minimum wage as per US law. In fact, the US State Department believed that the Indian Deputy Consul General is such a threat that she had to be taken into custody for not paying her domestic help minimum wage and that she also had to be cuffed, strip searched and have her body cavities searched.

The US State Department also believes that it is acting lawfully when it smuggles out such felons wanted for mass murder in order to prevent a host country from prosecuting them, and talks of “respect for law” in the same breath.

They may very well do so, but should we accept such hypocrisy or call their bluff?

When the Iraqi government demanded compensation for the victims of the Nissour Square Massacre, the US State Department (on behalf of Blackwater) offered between $ 10,000-12,500 each to the victim’s families (which they rightly refused to accept).

In effect, you can not only get away with mass murder if you are a private contractor working for the US State Department, but also not compensate the victims for the atrocity. You cannot, however, get away from criminal prosecution paying less wage than the US minimum wage to your domestic worker even if you are an accredited representative of a sovereign government.

Also, minimum wage for a blue collar worker in the US naturally has to be higher than value of lives of sundry Iraqis who got killed by trigger happy US private contractors. How can India’s Deputy Consul General in New York dare not to pay $ 54,000 wage to her domestic worker as per US laws? After all she isn’t a private contractor for the US State Department who has just killed a dozen Iraqis.

Of course these are questions you won’t get answers to, from the pompous Manhattan DA who would want to teach us about “respect for law.”

India’s own foreign policy establishment, the Ministry of External Affairs (MEA), has not exactly covered itself in glory by allowing a situation to develop which led to arrest and unacceptable humiliation of a woman diplomat. The MEA started believing in the rhetoric of India-US bilateral relation of being a ‘defining partnership’ so much that it needed the US Marshal Service to stick its fingers to one of its woman diplomats “where the sun doesn’t shine in India” to finally wake up from it. The outrage notwithstanding, the MEA is clearly at fault for neglecting serious issues of pay, entitlements, and their compliance with prevalent US laws that left Devyani Khobdagade vulnerable to US prosecution. Equally worse, it has left the Indian diplomats looking like a bunch of feudal slave owners, regardless of what the actual facts in this matter are.

But how is this likely to end?

It may be counterintuitive to say that the world’s sole superpower will back down in this confrontation, particularly if one goes by the defiant statements from the Manhattan DA’s office or the utterance of the State Department spokeswoman. No one, however, is more acutely aware of the limits of US power than the State Department and the US foreign policy establishment in this decade since 9/11. It is acutely aware that it will have to continue to operate in places far beyond the jurisdiction of the Manhattan DA in pursuit of its strategic national interests. It is also acutely aware that on many occasions its conduct in pursuit of these strategic national interests will be in violation of law. It is therefore acutely aware that diplomacy and reciprocity will continue to remain a key to negotiate this minefield. There is no reason to believe that such pragmatism, and not the Manhattan DA’s pompousness, will not finally decide the path to resolving this face-off. 

Note:

The conduct of the US State Department regarding the massacres and murders carried out by its private contractors, primarily Blackwater, is being quoted here almost literatim from Jeremy Scahill’s authoritative work “Blackwater: The Rise of the World’s Most Powerful Mercenary Army.”

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Demystifying the Claims and Counter-Claims of the Indo-Bangladesh Border Settlement in Assam

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Assam, Bangladesh, Boraibari, Dhubri, India, Indo-Bangladesh border settlement, Karimganj, Lathitila-Dumabari, Palakhal

A stretch of the Indo-Bangladesh border fence.

The most notable concrete accomplishment of the recent visit by India’s Prime Minister to Dhaka has been the signing of the historic pact to exchange the disputed adversely held ‘enclaves’ and ‘territories’ in each other’s possession as well as to demarcated the portions of the border which had earlier been left undemarcated.

An ‘adversely’ held ‘enclave’ or ‘territory’, to give the most simple definition, is one which ‘cartographically’ belonged to one neighbour (including perhaps title of the land as settled by colonial cadastral survey) while by some quirky fate of geopolitics, such as the hastily executed Partition of India, was left in the actual possession of the other.

According the treaty, which has to be now ratified by the Parliament of both India and Bangladesh, 111 such enclaves belonging to India, but in possession of Bangladesh were to be ceded to them. Conversely, 51 similar enclaves belonging to Bangladesh but in possession of India were to be ceded to it. The total area to be ceded by India to Bangladesh in these 111 enclaves has been reported as about 17160 acres, while the 51 Bangladeshi enclaves to be ceded to India constituted an area of about 7110 acres. Apart from these enclaves, there were territories in ‘adverse’ possession and disputed areas where the border was not demarcated earlier. These enclaves and areas in ‘adverse possession’  to be ceded to Bangladesh are strewn across the Indian states of West Bengal, Assam, Meghalaya, Mizoram and Tripura.

It is in the state of Assam, which has a strident and vocal anti-Bangladeshi constituency where the deal has generated the most vociferous opposition. This constituency, of which the AASU, AGP, BJP etc  are the prominent components, have accused the present Congress government in Assam, led by Tarun Gogoi, of entirely selling out Assam’s interest and ceding to Bangladesh 357.5 acres of land that belonged to Assam.

Strongly refuting the allegations, the Chief Minister yesterday stated in a press conference that these allegations were not true and that while Bangladesh indeed gained 357.5 acres, Assam has gained 1240 acres of land.

The question that naturally arises is who is speaking the truth here? The answer may be quite similar to the way the same incident was narrated by four different narrators, who had been involved in it, in four mutually irreconcilable versions, in Akira Kurosowa’s 1950 classic Roshomon.

To those who are stridently opposed to the deal, the point of reference is that the entire disputed land belonged to Assam cartographically, hence there is no question of it being in dispute. Therefore, ceding 357.5 acres of it to Bangladesh is absolutely unacceptable. The hyperbole has reached such proportions that a few of the AGP and BJP worthies have even termed it as the “Second Partition of India”. They however fail to admit, that in reality the ceded 357.5 acre land was in possession of Bangladesh already and the handing over to Bangladesh is merely a procedural formal acceptance of a de facto reality on the ground. If this isn’t acceptable, they haven’t yet articulated how they plan to regain possession of the land without a major border conflict with Bangladesh and what strategic national interest or even that of Assam would be gained by that.

The government’s position, as articulated by the Chief Minister, on the other hand, appears to be meticulously juridical. It has treated the entire approximately 1597.5 acres to which Bangladesh has laid claim to as ‘disputed’ and not indisputably belonging to Assam merely because it happened to be shown as that by cartography or colonial land records. Meticulous joint surveys must have established that of this claim, 357.5 acres were de facto in possession of Bangladesh, which includes 193 acres in Boraibari, Dhubri, 74.5 acres in Palakhal Tea Estate and 90 acres in Lathitila-Dumabari, both in Karimganj. The 1240 acres that the Chief Minister had claimed that Assam has gained is actually the portion of disputed land retained by Assam as it was not ceded to Bangladesh and to which the later has agreed.

So how much of land has actually been ceded to Bangladesh? If one converts 357.5 acres to Square Kilometers, it works out to approximately 1.45 Sq. Km. To draw up some comparison, that is less than 0.5 % of Guwahati’s metropolitan area.

As the cacophony of opposition to the border settlement grows to a crescendo, the question we need to ask ourselves is, aren’t we again being led down the garden path, instigated by our ever latent anti-Bangladeshi sentiments?

Assam has far more serious border disputes with Arunachal Pradesh, Meghalaya and Nagaland, which have the potential for renewed ethnic conflict and consequent blood bath if not settled judiciously. I just hope, those in throes of a belligerent patriotic upsurge to  save 357.5 acres from Bangladesh have thought of sensible ways to resolve these disputes as well. Before it is too late.

(It must be noted that some of the figures cited have been arrived at by interpolation and consultation with officials. Authenticated official records and figures have already been sought and are being awaited.)