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Since the arrest and subsequent handcuffing and strip searching of India’s Acting Consul in New York, Devyani Khobragade, several editorials and blogs have appeared – mostly in the United States but some in India too – that suggest that India’s outrage over the incident is grossly misplaced. They argue that the acting consul’s maid was underpaid and draw attention to India’s epidemic of labour abuse. Many also pointed out that the mistreatment of Khobragade is a minor issue which is not worth jeopardising relations between the two countries. A few suggested that the whole kerfuffle is a cultural misunderstanding between a law-abiding United States and an India governed by an elite class of people.

Despite the battological barrage that has ensued, most have missed the crux of the issue (with the notable exception of Husain Haqqani). Undoubtedly, many in India see the poor treatment of their emissary as an issue of national prestige; some are using it as another political weapon in the country’s vicious politics. It is, nonetheless, a banal observation that this or any one issue not be allowed to undermine an entire relationship. The problem is certainly one of cultural misunderstanding, not about law-abiding or elitist societies but about the very status of the diplomatic venture.

The history of diplomacy is probably as old as the history of conflict, but the earliest surviving written records go back to a set of clay tablets from Amarna, around 1300 BCE. Not yet a profession and lacking the modern institutional structure, the goals of diplomacy were nonetheless much the same – conflict resolution, periodic alliance formation, and the facilitation of trade. There was also a firm belief in the sacrosanct status of a foreign envoy, and they were not only considered immune from local laws but were to be treated well.

As Harold Nicholson supposes, it must have become apparent that negotiations would be severely hampered if the emissary from one side were killed by other side before he had time to deliver his message. “The practice must therefore have become established even in the remotest times that it would be better to grant to such negotiators certain privileges and immunities which were denied to warriors.”

For example, Mesopotamian diplomatic protocol required that the visiting envoy be provided troops for protection along his journey. Once, when a king was angered by an envoy’s message and sent him off without providing for his safety, the offence was seen as so great that it was taken as a breaking of diplomatic ties.

Homer referred to envoys as the messengers of Zeus and men, and Xenophon remarked that they were worthy of all honour. Cicero commented that ambassadors are so sacred and venerable that they should be able to go unharmed among allies as well as enemies. Roman law considered a legate inviolable, first by ius gentium (common law), and later via the legal codices of the lex Iulia de vi publica and Justinian’s Digest. As one anonymous text states, “When [envoys] are sent to us, they should be received with honour and liberality, for everyone treats envoys with respect.”

However, this protocol did not go unbroken. The Amarna system did not recognise immunity legally but extended it as a privilege and part of their customs of hospitality. The Greeks did not recognise diplomatic immunity as a legal right either but extended it as politeness to any guest. Nonetheless, safe conduct was common and behaviour to the contrary was an aberration criticised even by some in the host state.

The killing of envoys by Athens and Sparta marked the beginning of the Peloponnesian War, and the Dalmatian refusal to grant Rome’s ambassadors hospitality and attempt to rob them of their horses in 157 BCE became a pretext for war. When Julius Caesar launched a surprise attack on some German tribes he was pretending to negotiate with, Cato demanded that Caesar be ritually surrendered to the enemy. Famously, as Herodotus narrates, Darius I refused to execute his Spartan envoys in response to Sparta’s execution of his because he “would not make havoc of all human law.”

The Roman diplomatic method did not survive the fall of the Empire largely because its foreign relations with neighbouring countries were conducted from a colonial and administrative perspective rather than a strictly diplomatic one. Roman laws on inviolability, however, continued to inform Europe long after the fall of the eternal city. A medieval Burgundian law, for example, declared that envoys were sacred and that they were to be given food, shelter, animals (for transport), and even entertained for the night!

Byzantium serves as a grim reminder to those who pooh-pooh diplomatic protocol. Although Constantinople would not harm foreign emissaries, it was their belief that envoys from powerful countries should be treated roughly and “inadvertently” only see the army and economic well-being of the state, while emissaries from weaker states should be shown the grandeur of Constantinople and sent back with gifts and praise. They believed that this would win weak states over to their sphere of influence and intimidate the strong states. In one case, an envoy from Otto I of the Holy Roman Empire was delayed from entering Constantinople, placed under house arrest in an uncomfortable apartment upon entry, and worse (his words, not mine), given poor quality wine to drink.

Over time, resentment towards the Byzantines grew and there was always friction between Europe’s Crusader armies and the Byzantines. Eventually, the Fourth Crusade sacked Constantinople in the reign of Alexios III and ruled the city from 1204 to 1261. Later, when the Byzantines were again under threat from the Arabs, Seljuks, and Ottomans, they found themselves isolated and the Christian Western European kingdoms were reluctant to do much in their defence.

It was during the Renaissance that the diplomatic arts started to resemble their modern appearance. After the Treaty of Lodi in 1454, the five main powers of Italy – Venice, Milan, Florence, the Papacy, and Naples – decided that peace was best maintained by a “diplomatic alertness.” To this end, they established permanent embassies in other territories whose staff would report back with news of the economy, relations of their hosts with other powers, and rumours of any preparation for war. As economies grew and states grew more enmeshed with each other, permanent missions made more sense than the ad hoc system of the Greeks.

It was during the reign of Louis XIII of France that Cardinal Richelieu wrote his Testament Politique. In an uncanny echo of Yes, Prime Minister‘s Sir Humphrey (diplomacy is about surviving until the next century; politics is about surviving until Friday afternoon), Richelieu argued that diplomacy should be a continuous process whose goal should be creating durable relationships rather than attempting to make short-term opportunistic advances.

Although their framework was different, the Italo-French schools of diplomacy leaned heavily on their predecessors for a foundation. Representatives were still considered inviolate and Richelieu argued that the national interest should override any personal dislike of the emissaries sent or their masters. The famous jurist Hugo Grotius also opined that even if the ambassadors broke local laws, the security of ambassadors outweighed any advantage which accrued from a punishment.

There was, however, some resistance to the absolute immunity diplomats enjoyed, most notably in England. The eminent jurist Alberico Gentili, an Italian Protestant who migrated from Italy to England with his father because of his faith, and Sir Edward Coke argued that foreign emissaries were no better than the ordinary citizens of their host countries and should be governed by the same laws as everyone else. In any case, diplomatic immunity under English law did not exist until the passing of the Diplomatic Privileges Act in 1708; until then, it was at the discretion of the Crown and usually bilaterally guaranteed by treaty.

Pragmatism, however, bound England to the common European understanding of diplomatic protocol – when the French ambassador, Antoine de Noailles, to the court of Queen Mary was discovered to be plotting her overthrow during the Wyatt Rebellion, he was not prosecuted and allowed to return to France. Similarly, in 1586, when Spain’s ambassador to Queen Elizabeth I, Bernardino de Mendoza, was caught conspiring against her, England allowed the man safe passage back to Spain against Gentili’s advice. In the famous Mattueof affair in 1708, the accosting of the Russian ambassador to England by debt collectors led to their arrest for assaulting and arresting a foreign dignitary.

With interaction between countries increasing, the diplomatic class grew in size. Abuses of immunity that had been tolerable if only for their rarity became more difficult to bear. States agreed to legislation reducing the immunity of their representatives. The 1812 Exchange v McFaddon case in the US Supreme Court for the first time separated actions performed in the service of the state (jure imperii) from actions performed in private (jure gestionis), and in 1815, the Congress of Vienna created classes of emissaries, separating ambassadors from ministers from charges d’affaires. These two decisions would greatly influence the drafters of the Vienna conventions on diplomatic and consular relations in the early 1960s.

The inviolability of the envoy is as ingrained in Eastern cultures as it is in the West. The Manu Smriti and the Arthashastra are both quite clear on the immunity of the envoy. More famously perhaps, in the Mahabharata, the horror of the Hastinapura court when they learn of Duryodhana’s plot to kidnap Krishna, who had come as an envoy from the Pandavas in Upaplavya, illustrates the status of emissaries in the East.

It is the violation of this long diplomatic tradition that has offended many people. The bombastic tone adopted by the usually understated Indian Foreign Service may perhaps also be explained by this. As one columnist pointed out, Indian diplomats have served in far more dangerous environments and faced worse, but the Visigothic barbarism of a friendly power towards an Indian acting consul general shocked the Indian establishment.

Barring threats to the security of the realm, and sometimes even then, historically, states have chosen not to arrest, humiliate, prosecute, or execute a foreign emissary. In 1569, the Spanish ambassador to England, Guerau de Espés del Valle, was implicated in the Ridolfi plot – he was detained shortly and then deported. In 1571, the Bishop of Ross was found to be conspiring against the English monarch – he was also detained for a short period before being banished from the Kingdom; in 1717, the Swedish ambassador to England was expelled for similar reasons.

Khobragade’s alleged offence was too minor to be recorded on that scale and yet she was arrested, handcuffed, and strip searched. She posed no threat to national security, and even if the United States refused to recognise her immunity, she could have been politely asked to meet with State and Justice Department officials and informed of the lawsuit against her. The US Marshals have stated that they were following standard procedures for any detainee – that is precisely the point, that foreign emissaries are not standard people. Even consular officers, beneath diplomatic officers in the new hierarchy, facilitate relations between the host and their home state and should be shown the same courtesy if not immunity by their hosts.

Declaring an envoy persona non grata is not a minor affair. It means that person runs the risk of being prosecuted if s/he returns to the host state at a later date after the expiry of immunity. Furthermore, a blacklisted diplomat may find it difficult to gain acceptance in other capitals. States are well within their rights to refuse the credentials of an envoy being stationed in their country – France refused the credentials of the Duke of Buckingham in the late 1620s, but more recently, Saudi Arabia refused to accept Sir Horace Phillips of the United Kingdom in 1968 and the United States was warned not to accept India’s Triloki Nath Kaul in 1973.

The charming and wooing of ambassadors that was part of the ancient repertoire seems to have disappeared in the modern process of debasing of a noble art into legal wrangling. The extension of unilateral privileges to foreign envoys by India’s Ministry of External Affairs cannot be seen as obsequiousness but based on the tradition of hospitum. With enough policy issues to argue over, the small courtesies extended to emissaries far from home to make their stay more comfortable may result in their pleasant disposition towards the host country; they are the receiving state’s messengers to their home countries almost as much as they are envoys of the latter to the former. These extra-legal privileges are not uniform and indicate the greater importance of some countries to India – the demands of realpolitik do not, apparently, bend to the tokenisms of our equality-obsessed era.

Lest anyone has forgotten, diplomacy is still a human enterprise and personal relationships remain very important. Richard Nixon’s first visit to India in 1953 set the tone for his exchanges with the South Asian country until the end of his career. The Khobragade case has left a bad taste in everyone’s mouth. Both sides will view each other suspiciously and though both may tolerate each other for strategic short-term reasons, a relationship over the longue durée gets weakened with every such incident. There is no doubt that there is some jingoistic chest-thumping over the arrest of Khobragade, but even the cooler heads in India’s Foreign Service have been affronted by this violation of the diplomat’s code. You simply do not touch a foreign emissary.

This post appeared on Daily News & Analysis on December 22, 2013.