In August 2005, the Defence Attache at the U.S. Embassy in New Delhi wrote to the Ministry of External Affairs asking for the reiteration of an earlier “verbal understanding” it had received granting protections equivalent to that contained in a Status of Forces Agreement (SOFA) to American military personnel present in India for exercises.
“In September 2001, your predecessor, Jayant Prasad, gave us verbal assurances that the US could count on SOFA legal coverage even without a formal agreement,” he wrote to MEA Joint Secretary S. Jaishankar. “What we seek at this time, in essence, are MEA's re-assurances that all US DoD personnel deploying to India for purposes of exercises are still afforded diplomatic protections equivalent to the administrative and technical staff of the U.S. Embassy.”
This was needed, the letter said, because the formal exchange of diplomatic notes might take time and might not get completed before upcoming military exercises. “However, as our exercise programs grow in scope and complexity...it is very important that India and US consider the legal status implications in case of accidents, or unfortunate incidents.”
A confidential U.S. Embassy cable accessed by TheHindu through WikiLeaks reports Mr. Jaishankar informing the Deputy Chief of Mission soon after that he had consulted the MEA files upon receiving the attache's letter and “found no indication of any verbal assurances by then Joint Secretary Prasad. Jaishankar noted that to the contrary, the MEA record of a September 25, 2001 meeting with the Embassy ODC Chief and DCM showed that Prasad specifically told the embassy representatives not to seek any kind of SOFA with India” ( > cable 38759: confidential, dated August 16, 2005 ).
Mr. Jaishankar also discouraged “any effort by the USG to pursue at this stage a SOFA with India.”
The DCM repeated the attache's argument about the growing complexity of ongoing exercises. “The Exercise Malabar in late September, for example, would involve carrier battle groups for the first time, and include shore leave for hundreds of US sailors. DCM also noted that the US has SOFA with all of its major military partners around the world and that every aspect of the agreement is reciprocal.”
Mr. Jaishankar, the cable says, took the point, but said that if the U.S. were to table a SOFA agreement at this stage, it could complicate efforts to conclude the Acquisition and Cross-Servicing Agreement (ACSA).
“Specifically, he noted that the left parties would stoutly resist immunity provisions for American service people on Indian soil, despite the reciprocal nature of the provisions. He again urged that the USG not ‘overload the Indian system' by pursuing a SOFA at this stage.”
(This article is a part of the series "The India Cables" based on the US diplomatic cables accessed by The Hindu via Wikileaks.)