Riposte to the Indian Express

In his op-ed in The Indian Express, Shekhar Gupta, true to his regular form, shoots from the hip again to target his nemesis - the Indian Military establishment. This is my riposte.

It was difficult for me to understand the slant in your present article and for a moment, I almost found myself agreeing with you. But knowing you, I had to re-read it three times. But then that could be attributable either to my advancing age or to your still inexplicable anti-military forward policy. First, let me attempt to decipher your article for the simple folk:

In your first paragraph, you bring out your vintage. Fair enough, you need to establish your credentials from the fact that you have been around for sometime.

In the second, the rant against the "white man".

In the third, "aha" - the moment of truth - "...fed on jingoistic propaganda and convenient military mythologies", justified by Bollywood, aka Lata Mangeshkar and Prem Pujari. "Convenient military mythologies" indeed.

In the fourth, you pull an old trick of stating a half truth and leave anyone reading the article about what "indiscretions' Manekshaw was accused of, for you did not, quite conveniently, give any illustrative examples and left it to the imagination of the reader. A smiley with a smirk and a raised eyebrow would have done the trick, but then, "indiscretions" were the flavour of the day in Jawaharlal Nehru's era.

In the fifth you finally credit two congressmen - YB Chavan and Jagjivan Ram - with "cleaning out the Augean stables" and rebuilding the Army and for creating the legend that was Manekshaw, without stating how Chavan and his successors became so successful in higher defence management. And in case you have put on your "quizzical" face, let me just say that there were two reasons and there is no doubt the credit must to to Chavan both for his astuteness and for his discretion. The first reason: he read the Henderson Brooks report cover to cover, and took pains to get to grips with higher defence management and civil-military relations. And the second reason: he was discreet enough to let Nehru off the hook.

The fifth paragraph is about defeat spawning a horde of mostly self-expulcatory authors. You state that Dalvi's book is the "story of the greatest disaster of that war..." which is a weak attempt to shift the blame for India's greatest debacle to a lowly formation commander, a line that many of the uninitiated may well buy. Inexplicably, however, left out the contributions of Palit, one of many "Kaul-boys" in the Army Headquarters, and "intelligence super-czar" Mullick to the defeat. Yes, the same Mullick who was responsible for institutionalizing the theory that the Chinese would not react with force, no matter what we did and also who famously stated that India does not need a military, that "the police can do the job".

Sixth - That "...story of betrayal, stabbing-in-the-back...Hindi Chini Bhai Bhai" originated from soldiers? You hastened to add  that "political, intellectual and strategic discourse' as well as "popular culture", all built the same story, but neatly hidden between the lines was that the soldiers were behind this myth or "story". Until Maxwell's book challenged it, that is, the soldier's story. Brilliant! And then you proceed to put the blame for the leaked report to its author, Henderson Brooks, because he settled in the same country  - Australia - as Maxwell. Brilliant!

In the seventh, you attempt to praise Henderson Brooks as "committed and patriotic", but the damage was already done in the previous paragraph. In addition you state that "nobody knows yet" why Brig (later Lt Gen) Bhagat, the other author of the report, was "inexplicably passed over" and "victimized". Let me assure you that everyone who is anyone will know that Bhagat was passed over as he along with Brooks had the temerity to go beyond their brief, to "follow the stench of incompetence" [my quote] to the root causes - to uncover the disease, not merely document the symptoms.

In the eight, you have a message for all senior retiring military officers - that they should all head to a faraway place, just fade away and never be seen again on any platform, "except probably on a golf course". And we all know who this is directed against - your old friend VK Singh and his ilk, who recently joined the BJP in droves. Personally, I don't have a problem with this, however my reasons will , rest assured, be very different from what you might probably be thinking.

Then in the tenth, you deliver your "coup de grace" - the real reason why the report has not been classified. It is "the Army, stupid!" who torpedoed the efforts of the Ministry of Defence and St Anthony himself. If so, it must be a very different Army from the day's bygone. In my days, the file from the Chief's office went to a desk officer in the MoD. From there, it must have trudged up the bureaucratic heights and knocked Anthony off his pedestal. Well done, Shekhar - you must attempt fiction sometime before you retire. We may yet see an Indian Ludlum.

The rest of the article may be useful to the student of English who may like to understand how a "senior" journalist uses nouns, verbs, adjectives, adverbs and the like. Except on the last line, where you called the Chinese "even more stupid than us". The subtext being, that any country that honours its soldiers is stupid.

And that is in addition to being a complete fraud. To conclude my exposition, just a small piece of information to picque the interest of your cheerleaders in positions of power. When Nehru died, the Army was given some part of the responsibility for the funeral arrangements. The then Chief, Gen JN Chaudhari "moved" forces from Ghaziabad without the approval of the MoD as a contingency measure. I believe Raisina was spooked even at that point in time.

Patel's letter to Nehru [1950]

ON November 7, 1950 – twelve years before the Chinese attack -- the then Home Minister of India, Sardar Vallabhbhai Patel, wrote a 2,323-word letter to Jawaharlal Nehru, giving his assessment of the developments across the Himalayan frontier and cautioning Nehru about the imminent threat from China. The following is the complete text of the letter:

My dear Jawaharlal,  

Ever since my return from Ahmedabad and after the cabinet meeting the same day which I had to attend at practically fifteen minutes' notice and for which I regret I was not able to read all the papers, I have been anxiously thinking over the problem of Tibet and I thought I should share with you what is passing through my mind.  

I have carefully gone through the correspondence between the External Affairs Ministry and our Ambassador in Peking and through him the Chinese Government. I have tried to peruse this correspondence as favourably to our Ambassador and the Chinese Government as possible, but I regret to say that neither of them comes out well as a result of this study. 

The Chinese Government has tried to delude us by professions of peaceful intention. My own feeling is that at a crucial period they managed to instill into our Ambassador a false sense of confidence in their so-called desire to settle the Tibetan problem by peaceful means. There can be no doubt that during the period covered by this correspondence the Chinese must have been concentrating for an onslaught on Tibet. The final action of the Chinese, in my judgement, is little short of perfidy. The tragedy of it is that the Tibetans put faith in us; they chose to be guided by us; and we have been unable to get them out of the meshes of Chinese diplomacy or Chinese malevolence. From the latest position, it appears that we shall not be able to rescue the Dalai Lama. 
Our Ambassador has been at great pains to find an explanation or justification for Chinese policy and actions. As the External Affairs Ministry remarked in one of their telegrams, there was a lack of firmness and unnecessary apology in one or two representations that he made to the Chinese Government on our behalf. It is impossible to imagine any sensible person believing in the so-called threat to China from Anglo-American machinations in Tibet. Therefore, if the Chinese put faith in this, they must have distrusted us so completely as to have taken us as tools or stooges of Anglo-American diplomacy or strategy. This feeling, if genuinely entertained by the Chinese in spite of your direct approaches to them, indicates that even though we regard ourselves as the friends of China, the Chinese do not regard us as their friends. 

With the Communist mentality of "whoever is not with them being against them", this is a significant pointer, of which we have to take due note. During the last several months, outside the Russian camp, we have practically been alone in championing the cause of Chinese entry into UN and in securing from the Americans assurances on the question of Formosa. We have done everything we could to assuage Chinese feelings, to allay its apprehensions and to defend its legitimate claims in our discussions and correspondence with America and Britain and in the UN. 

Inspite of this, China is not convinced about our disinterestedness; it continues to regard us with suspicion and the whole psychology is one, at least outwardly, of scepticism perhaps mixed with a little hostility. I doubt if we can go any further than we have done already to convince China of our good intentions, friendliness and goodwill. In Peking we have an Ambassador who is eminently suitable for putting across the friendly point of view. Even he seems to have failed to convert the Chinese. Their last telegram to us is an act of gross discourtesy not only in the summary way it disposes of our protest against the entry of Chinese forces into Tibet but also in the wild insinuation that our attitude is determined by foreign influences. It looks as though it is not a friend speaking in that language but a potential enemy. 

In the background of this, we have to consider what new situation now faces us as a result of the disappearance of Tibet, as we knew it, and the expansion of China almost up to our gates. Throughout history we have seldom been worried about our north-east frontier. The Himalayas have been regarded as an impenetrable barrier against any threat from the north. We had a friendly Tibet which gave us no trouble. The Chinese were divided. They had their own domestic problems and never bothered us about frontiers. In 1914, we entered into a convention with Tibet which was not endorsed by the Chinese. We seem to have regarded Tibetan autonomy as extending to independent treaty relationship. Presumably, all that we required was Chinese counter-signature. 
The Chinese interpretation of suzerainty seems to be different. We can, therefore, safely assume that very soon they will disown all the stipulations which Tibet has entered into with us in the past. That throws into the melting pot all frontier and commercial settlements with Tibet on which we have been functioning and acting during the last half a century. China is no longer divided. It is united and strong. All along the Himalayas in the north and north-east, we have on our side of the frontier a population ethnologically and culturally not different from Tibetans and Mongoloids. The undefined state of the frontier and the existence on our side of a population with its affinities to the Tibetans or Chinese have all the elements of the potential trouble between China and ourselves. Recent and bitter history also tells us that Communism is no shield against imperialism and that the communists are as good or as bad imperialists as any other. Chinese ambitions in this respect not only cover the Himalayan slopes on our side but also include the important part of Assam. They have their ambitions in Burma also. Burma has the added difficulty that it has no McMahon Line round which to build up even the semblance of an agreement. 

Chinese irredentism and communist imperialism are different from the expansionism or imperialism of the western powers. The former has a cloak of ideology which makes it ten times more dangerous. In the guise of ideological expansion lie concealed racial, national or historical claims. The danger from the north and north-east, therefore, becomes both communist and imperialist. While our western and north-western threat to security is still as prominent as before, a new threat has developed from the north and north-east. Thus, for the first time, after centuries, India's defence has to concentrate itself on two fronts simultaneously. 

Our defence measures have so far been based on the calculations of superiority over Pakistan. In our calculations we shall now have to reckon with communist China in the north and in the north-east, a communist China which has definite ambitions and aims and which does not, in any way, seem friendly disposed towards us. 

Let us also consider the political conditions on this potentially troublesome frontier. Our northern and north-eastern approaches consist of Nepal, Bhutan, Sikkim, Darjeeling and the tribal areas in Assam. From the point of view of communication, there are weak spots. Continuous defensive lines do not exist. There is almost an unlimited scope for infiltration. Police protection is limited to a very small number of passes. There, too, our outposts do not seem to be fully manned. The contact of these areas with us is by no means close and intimate. The people inhabiting these portions have no established loyalty or devotion to India. 

Even Darjeeling and Kalimpong areas are not free from pro-Mongoloid prejudices. During the last three years, we have not been able to make any appreciable approaches to the Nagas and other hill tribes in Assam. European missionaries and other visitors had been in touch with them, but their influence was in no way friendly to India or Indians. In Sikkim, there was political ferment some time ago. It is quite possible that discontent is smouldering there. Bhutan is comparatively quiet, but its affinity with Tibetans would be a handicap. Nepal has a weak oligarchic regime based almost entirely on force: it is in conflict with a turbulent element of the population as well as with enlightened ideas of the modern age. In these circumstances, to make people alive to the new danger or to make them defensively strong is a very difficult task indeed and that difficulty can be got over only by enlightened firmness, strength and a clear line of policy. 

I am sure the Chinese and their source of inspiration, Soviet Union, would not miss any opportunity of exploiting these weak spots, partly in support of their ideology and partly in support of their ambitions. In my judgement the situation is one which we cannot afford either to be complacent or to be vacillating. We must have a clear idea of what we wish to achieve and also of the methods by which we should achieve it. Any faltering or lack of decisiveness in formulating our objectives or in pursuing our policies to attain those objectives is bound to weaken us and increase the threats which are so evident.
Side by side with these external dangers, we shall now have to face serious internal problems as well. I have already asked Iengar to send to the External Affairs Ministry a copy of the Intelligence Bureau's appreciation of these matters. Hitherto, the Communist Party of India has found some difficulty in contacting communists abroad, or in getting supplies of arms, literature, etc., from them. They had to contend with the difficult Burmese and Pakistan frontiers on the east or with the long seaboard. They shall now have a comparatively easy means of access to Chinese communists and through them to other foreign communists. Infiltration of spies, fifth columnists and communists would now be easier. Instead of having to deal with isolated communist pockets in Telengana and Warrangal we may have to deal with communist threats to our security along our northern and north-eastern frontiers, where, for supplies of arms and ammunition, they can safely depend on communist arsenals in China. 

The whole situation thus raises a number of problems on which we must come to an early decision so that we can, as I said earlier, formulate the objectives of our policy and decide the method by which those objectives are to be attained. It is also clear that the action will have to be fairly comprehensive, involving not only our defence strategy and state of preparations but also problem of internal security to deal with which we have not a moment to lose. We shall also have to deal with administrative and political problems in the weak spots along the frontier to which I have already referred. 
It is of course, impossible to be exhaustive in setting out all these problems. I am, however, giving below some of the problems which, in my opinion, require early solution and round which we have to build our administrative or military policies and measures to implement them. 

1. A military and intelligence appreciation of the Chinese threat to India both on the frontier and to internal security. 
2. An examination of military position and such redisposition of our forces as might be necessary, particularly with the idea of guarding important routes or areas which are likely to be the subject of dispute. 
3. An appraisement of the strength of our forces and, if necessary, reconsideration of our retrenchment plans for the Army in the light of the new threat. 
4. A long-term consideration of our defence needs. My own feeling is that, unless we assure our supplies of arms, ammunition and armour, we would be making our defence perpetually weak and we would not be able to stand up to the double threat of difficulties both from the west and north-west and north and north-east. 
5. The question of China's entry into the UN. In view of the rebuff which China has given us and the method which it has followed in dealing with Tibet, I am doubtful whether we can advocate its claim any longer. There would probably be a threat in the UN virtually to outlaw China, in view of its active participation in the Korean war. We must determine our attitude on this question also. 
6. The political and administrative steps which we should take to strengthen our northern and north-eastern frontier. This would include the whole of the border, ie. Nepal, Bhutan, Sikkim, Darjeeling and the tribal territory in Assam. 
7. Measures of internal security in the border areas as well as the states flanking those areas such as Uttar Pradesh, Bihar, Bengal and Assam. 
8. Improvement of our communication, road, rail, air and wireless, in these areas and with the frontier outposts. 
9. The future of our mission at Lhasa and the trade posts at Gyangtse and Yatung and the forces which we have in operation in Tibet to guard the trade routes. 
10. The policy in regard to the McMahon Line. 

These are some of the questions which occur to my mind. It is possible that a consideration of these matters may lead us into wider question of our relationship with China, Russia, America, Britain and Burma. This, however, would be of a general nature, though some might be basically very important, e.g., we might have to consider whether we should not enter into closer association with Burma in order to strengthen the latter in its dealings with China. 

I do not rule out the possibility that, before applying pressure on us, China might apply pressure on Burma. With Burma, the frontier is entirely undefined and the Chinese territorial claims are more substantial. In its present position, Burma might offer an easier problem to China, and therefore, might claim its first attention. 

I suggest that we meet early to have a general discussion on these problems and decide on such steps as we might think to be immediately necessary and direct, quick examination of other problems with a view to taking early measures to deal with them. 

Vallabhbhai Patel, 7th November 1950 

Source: Tribune India 

Riposte to the Sunday Guardian

The following is just a riposte to the following article that appears in the online edition of the Sunday Guardian on 22nd Mar 2014:

"The other unexpected revelation is that it's not the political leadership comprising Prime Minister Jawaharlal Nehru and his favourite, Defence Minister Krishna Menon who are the principal culprits. Very surprisingly, it puts the onus for the debacle on the Army brass itself for disastrous leadership."

Really? How very convenient! Of course there is an element of truth with regard to the "Army brass". However, your article is misguided in that it seeks to highlight the most obvious symptoms instead of putting the spotlight on the root cause of the maladies in national security strategy and higher defence management. At that point in history, the move by the Government to delegate the responsibility for the war review first to the Ministry of Defence and further down to the military was a politically expedient and succeeded in shielding some of the key protagonists.

There is no doubt that many of the generals in the chain of command extending from the Army Headquarters down to the fighting formations were fully responsible for mismanaging a bad situation made worse not just by a decade of neglect of the armed forces post-independence, but for lacking the moral fibre to take a principled stand against the preposterous stream of  instructions and the relentless pressure being put on them to implement a change in strategic posture - the Forward Policy. The generals even failed to buy the time needed to align resources and other military wherewithal to the imperatives mandated by the change in policy, and for allowing themselves, as you so eloquently put, to be "hustled into ill-prepared operations that could only lead to disaster".

But then, there is a catch, isn't it? How justifiable is a "timely" display of character and a refusal to implement instructions, however ludicrous, in the face of a belligerent enemy already knocking at the door? At best, you will be accused of being an obstructionist or even a coward. The immediate consequence of this sprightly approach would be a very public sacking, or at a minimum, an immediate transfer followed by the appointment of another more pliable general willing to toe the line. It is pertinent to say that, within the staid and tradition-bound military hierarchy itself, this is common practice.

But what if a politician begins to view his military advisor as inconvenient, obstructionist, someone who does not believe in toeing the line drawn for them, someone who counters a directive with an inconvenient demand for additional resources, or just as someone who is simply not pliable enough? Does it ring a bell? The Anthony-Joshi bell? The Anthony-VK Singh bell? The Fernandez-Bhagwat bell? There have been any number of instances where this clash of civilizations has happened in civil-military relations and not just in the past. Besides, in the years leading up to the war, "standard" military hierarchy had already been tampered with purportedly for the sake of increased efficiencies.

While the chain of events that led to the war may have been set in motion more than a decade before the war, the seeds of the disaster was planted during a very public spat in 1959 between Defence Minister Menon and General Thimmayya, the incumbent chief and one of India's most outstanding soldiers (the original Menon-Thimmayya bell?). Nehru did intervene to convince the General to withdraw his resignation only to humiliate him further by publicly berating and condemning him in parliament. Reduced to a lame duck, Thimmayya finally retired in 1961, handing over the reins of the Army to General PN Thapar, just 15 months prior to the war.

Was Thapar an inconvenient obstructionist? Probably not to the same degree as Thimmayya, but sufficiently enough for the MoD to scan the ranks seeking someone more agreeable, even if not necessarily qualified for the task at hand. Someone, who when asked to jump, would at best pause only to ask, "How high?".

That Gen Kaul got along with the establishment like a house on fire was obvious from the enthusiasm shown even by the likes of a foreign secretary to express opinions on the tactical locations of platoon posts. Surely, you may think, that was exactly what the great strategic theorist Clausewitz had in mind when he stated that "...war is an extension of foreign policy"?

For Defence Minister Menon war was "... a continuation of politics by other means" and therefore the primary qualification for generals selected to lead the Army was "loyalty" - not in the home and country sense, mind you, but to the minister himself.

For the generals, one key lesson of the war is the question of what approach to take when faced with the moral dilemma of taking a principled stand as a professional and resign or following the legally valid but incompetent instructions of a vindictive authority. In other words, whether to throw away the great honour normally associated with such high position and the trust reposed on him by his officers and men, or, to toe the line and go boldly down the path to hell for the sake of duty, honour and country.

The bottomline is that there are just too many valuable lessons to be learnt from the Henderson Report for it to be lying in a   government locker. Once released, there is little doubt that it will become mandatory reading for all levels of the military hierarchy. However the most important learning will happen at the highest levels of government. And if that happens, it could well set into motion a chain of events that will change the fragmented, bureaucratic, lopsided and incompetent manner in which the political apparatus and the agencies responsible for the nation's security operate. Yes unfortunately, even today.

L'Affaire Khobragade

On the face of it, the "Devyani Khobragade" affair was most definitely Uncle Sam's biggest botch up in Indo-US diplomatic relationships since December of 1971, when Richard Nixon dispatched Task Force 74 with its first nuclear powered carrier, the USS Enterprise, into the Bay of Bengal as a show of strength against India's naval blockade of what was then East Pakistan.

So what provoked the kind of treatment (a very public arrest, a strip search and imprisonment) meted out to Ms Devyani Khobragade, India's Deputy Consul General in New York?

Apparently, it was on multiple counts, among others, "visa fraud", "human trafficking" and "slavery"?

The "visa fraud' charge was apparently a confusion about an item in the nanny's visa application (a DS-160) wherein a monthly salary of $4500 was indicated. And the confusion was whether this amount pertained to the nanny or her employer! I dont have immediate access to a DS-160, so I will rest this matter here.

The "human trafficking" and "slavery" charge, on the other hand, was about international relocation of domestic staff at low wages, that is, little pay and long work hours.

How is "human trafficking" defined?

The UN office on Drugs and Crime (UNODC) defines trafficking in Article 3, paragraph (a) of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, as the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

Is the United States of America a signatory to the UNODC?

Yes, it is, but with some reservations including the following:
The United States of America reserves the right to assume obligations under this Protocol in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to conduct addressed in the Protocol.  U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, such as the Thirteen Amendment's prohibition of "slavery" and "involuntary servitude," serves as the principal legal regime within the United States for combating the conduct addressed in this Protocol, and is broadly effective for this purpose.

And what exactly constitutes "involuntary servitude"?

"Involuntary servitude" is a US legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion other than the worker's financial needs.Involuntary servitude does not necessarily connote the complete lack of freedom, and can also refer to other forms of "unfree labor", where people may be employed against their will by the threat of destitution, detention, violence, lawful compulsion or other extreme hardship to themselves or to members of their families.

"Lawful compulsion" implies the use of legal (or soverign?) authority, influence, or other power to force (compel) a person or persons to act, often despite negative consequences.

So here, in short, is the full legal construct: lawful compulsion -> unfree labor -> involuntary servitude -> Thirteenth Ammendment -> Federal and State Criminal laws.

So under these laws, can any ordinary expat living in the United States, who did what Devyani Khobragade did, be arrested? The answer is, of course, a resounding "Yes".

So what is the problem?

The problem is only that Devyani Khobragade is not just another ordinary expat working in the US. She is a member of an exclusive club called "consular staff", that too, of a strategically important and friendly democracy, a club whose privileges and immunities are covered, not under the laws of the receiving state, but under the UN's "Vienna Convention on Consular Relations", adopted by 95 countries (including the US, albeit conditionally, as we shall see) at the associated plenary on 24 April 1963.

The Vienna Convention consists of 79 articles, most of which provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country. A few other articles specify consular officials’ duties when citizens of their country face difficulties in a foreign nation.

Of particular interest for the right of individuals is Article 36, providing for certain obligations for competent authorities in the case of an arrest or detention of a foreign national, in order to guarantee the inalienable right to counsel and due process through consular notification and effective access to consular protection.

So under this provision, Devyani Khobragade is, to the extent provided in the article, protected. To what extent? Well, at least until "due process" was completed. And even thereafter, the maximum provision, under the treaty, did not allow an arrest or any consequent process.

Was the prescribed "due process" completed?
Of course, not!

Let us change tack for a moment and ask another question.
Was Article 36 of the Vienna convention ever challenged?
Of course it was.

By whom?
Mostly, by the United States of America!

For many years (if not decades), the right to consular notification and access provided for in the Vienna Convention has increasingly been raised in proceedings not only at the domestic and regional levels, but also in international courts.

• The first United States case relating to article 36 of the Vienna Convention was Breard v. Greene (523 US 371, 1988), followed by numerous claims in United States federal circuit courts of appeals, state supreme courts, and the United States Supreme Court. Interpretations have varied widely, from the non-recognition of fundamental rights conferred by article 36, where no appropriate remedy is available, to the possibility of individually enforcing those rights.
• In 1999, the Inter-American Court of Human Rights issued an advisory opinion, recognizing that article 36 creates individual rights, as a “notable exception to what are essentially States’ rights and obligations accorded elsewhere” in the Convention (Advisory Opinion of the Inter-American Court of Human Rights: Due Process of Law is a Fundamental Right (OC-16/99), para. 82).
• In 2001, the International Court of Justice in LaGrand (Germany v. United States of America) found that where a violation of article 36 occurs, a remedy is due consisting of “review and reconsideration by United States courts of convictions and sentences”, in light of the breach of the Convention.
• The Avena and other Mexican Nationals case (Mexico v. United States of America) marked a turning point regarding article 36 jurisprudence. The International Court of Justice’s unprecedented decision of 2004 expressly recognized the interdependence of both individual and State’s rights, by asserting that “violations of the rights of the individual under article 36 may entail a violation of the rights of the sending State, and that violations of the rights of the latter may entail a violation of the rights of the individual” (ICJ Reports 2004, p. 36).

So, while Devyani Khobragade was in conflict with the law of the land, the problem lay in the domain of jurisprudence - specifically the interpretation and application of Federal and State Criminal law vis-a-vis Article 36 of the Vienna Convention on Consular Relations.

Coming back to the episode under discussion, we can see that Devyani Khobragade was not accorded the inalienable right to counsel nor due process through consular notification nor effective access to consular protection. While "diplomatic immunity" under Article 29 of the "Vienna Convention on Diplomatic Relations 1961" would have conferred immunity from "any form" of arrest or detention, Devyani, as consular staff, was only eligible for "due process". However, that "due process" was not accorded.

What is of interest is that, the "maximum option" available to US authorities in cases where "diplomatic immunity" exits, is to declare the individual a persona non grata ("unwelcome person"), thereby forcing the sending state to recall the person within a "reasonable time limit".

Clearly, Uncle Sam was in full breach. The "evacuation" of the nanny's family from New Delhi, of course took the cake. It clearly highlighted what Uncle Sam thought about the judicial system in India, where the case was already subjudice. Uncle Sam sure has a lot of explaining to do. Luckily, someone in the US administration has seen reason, and the latest reports emanating out of Washington DC indicate that a review of the lapses that happened in this high-profile case is already in process. There is hope.

But what about India. Do we come out of this episode smelling like a bunch of roses? Of course not. We have our own bag of (to put it lightly) "misdemeanors", and we will do well to review the prevailing culture of our  diplomatic and consular staff and many, many others, both within the country or serving in a foreign land.

Can we expect to see that happen sometime in the foreseeable future? Of course not! Not with the current dispensation anyway. What about 2014 and beyond? A law governing domestic labour is long overdue. But given how well entrenched our bureaucrats are (and the foreign service are the "upper castes" within the bureaucracy), I won't hold my breath.

Some food for thought: Compare and contrast the response of the government (and the diplomatic community in particular) to this episode (essentially, a misguided interpretation of the jurisdiction & precedence of two laws), with its response to the beheading of an Indian soldier on the Line of Control in Kashmir by soldiers of another country (essentially, an act of war) in January 2013.

Then again, what was India's response to the terror assault on Mumbai in November of 2008. Who is writing the postscript to that episode and how will the end game play out? Will it be more of the "fizzle and pop" to which we have been inured? The term of the current government anyway ends in 2014. So it is obvious that the current dispensation has washed its hands off the matter.

Why is a state, with its self-indulgent vision of grandeur as a great world power, failing to protect its citizens again and again in one context, while going completely overboard in another?

Where does the fatal flaw lie?

The Agile Enterprise

I think this may require a new blog altogether. It is a fascinating subject, and the more transformations I participate in, the more I feel that business agility is moving towards what can only be called "functioning like the military". There are numerous good reads about the topic, almost invariably expensive publications, way above the average price of management literature.

Why is that the case? Maybe, there aren't enough veterans in business organizations. Or maybe those who go through one or more agile transformation initiatives realize that it is so different from what traditional management literature preaches, there is a premium on such knowledge and experience.

For veterans in business, an agile transformation is just applying more of the principles of war - selection and maintenance of the aim, maintenance of morale, offensive action, security, surprise, concentration of force, economy of effort, flexibility cooperation and sustainability - to a commercial enterprise.

More on this in another blog.

About

in-sou-ci-ant
adj.
            Market by blithe unconcern, nonchalant

insouciant
adj.
            carefree or unconcerned; light-hearted
            incouciance n
            insouciantly adv

Whatever!

The Insouciant Explorer is my personal diary, a personal web page, my extended gravitar, a page I use to introduce myself in the virtual world of the digital internet!