FOLLOW-UP ON BARAPIND EXTRADITION ASSURANCES

UNCLAS SECTION 01 OF 04 NEW DELHI 002171

SIPDIS

SENSITIVE
SIPDIS

L FOR SPOMPER AND MGUILIANI
DRL FOR CCAMPONOVO

E.O. 12958: N/A
TAGS: CJAN CVIS PTER PREL KCRM PHUM PGOV IN
SUBJECT: FOLLOW-UP ON BARAPIND EXTRADITION ASSURANCES

REF: A. STATE 33728


B. NEW DELHI 994

C. STATE 6905

D. 05 NEW DELHI 9513

E. 12/01/05 POMPER EMAIL TO POST ATTACHING CAT
SUBMISSION

F. 05 NEW DELHI 4449


1. (SBU) Summary: On March 29, 2006, Post received MEA
Diplomatic Note T-413/11/2004 answering questions posed in
USG Diplomatic Note 06/254/POL, dated March 7, 2006,
regarding the extradition to India of Kulbir Singh Barapind.
The full text of the GOI response is included below, as well
as the name and contact information for Embassy POC for any
post-extradition follow-up (per Ref A). We include here
additional context regarding the significant positive changes
since 1997 (i.e. post-Sandhu extradition) in the Indian
political landscape regarding the treatment of Sikhs that
should also be taken under careful consideration as this
issue moves forward. End Summary.

GOI Response to Ref A Follow-Up Questions
--------------


2. (U) With reference to the requested extradition of Kulbir
Singh Barapind (referred to in the Indian note as Kulbir
Singh Kulbeera aka Barapind) and USG obligation under the
Convention Against Torture, the MEA has provided the
following diplomatic note:

Begin text of MEA Diplomatic Note T-413/11/2004, dated 28
March 2006:

The Ministry of External Affairs presents its compliments to
the Embassy of the United States of America in New Delhi and
with reference to their Note Verbale No. 06/254/Pol dated 7th
March 2006 regarding Mr. Kulbir Singh Kulbeera aka Barapind,
has the honour to reiterate, as conveyed in this Ministry's
note dated 6th February 2006, that Mr. Kulbir Singh Kulbeera
aka Barapind on extradition to India, will be dealt with in
accordance with the law. He will be entitled to all the
rights of defence, protection and remedies available and
shall not be subjected to torture, as defined in the
Convention against Torture and other Cruel, Inhuman or
Degrading treatment or Punishment, 1984.

As we conveyed in the Note Verbale dated 6th February 2006,
India as a signatory to the Torture Convention has a good
faith obligation not to act against the objectives and
purposes of the Convention. Indian criminal law prohibits
the use of force or causing hurt to extort confession. The
judicial decisions have interpreted the law to cover not only
the physical hurt but the mental derangement/sufferings also.
Persons violating these provisions are subject to
prosecution and imprisonment.

Once Mr. Barapind is extradited to India, the US Government
will be informed about the status of the criminal trial
against him for the alleged offenses in accordance with the
provisions of the Indo-US Extradition Treaty. Article 21 of
the Treaty provides for consultation in connection with the
processing of individual cases and improving procedures for
the implementation of the Treaty.

As for information concerning the old cases of Daya Singh
Sandhu and Kamaljit Kaur Sandhu, this Ministry would obtain
the requisite details from the concerned Indian authorities
and convey to the esteemed Embassy in due course.

As regards access on a reciprocal basis, it is clarified that
the US officials on request shall have access to the person
extradited during trial in India, and on extradition of a
person from India to USA, the Indian officials on request
shall be provided access to the person extradited during his
trial in the United States of America, irrespective of his or
her nationality.

The Ministry of External Affairs avails itself of this
opportunity to renew to the Embassy of the United States of
America in New Delhi the assurances of its highest
consideration.

End Text.

(NOTE: The GOI reference to USG Note Verbale No. 06/254/Pol

NEW DELHI 00002171 002 OF 004


dated 7th March 2006 corresponds with Ref C. End Note.)

Initial Assessment of GOI Response
--------------


3. (SBU) The GOI response appears to Post to answer most of
the questions posed in Ref A. We note that the GOI response
does not explicitly mention coordination with Punjab
authorities to ensure Barapind's humane treatment, except to
reiterate in the first two paragraphs that Indian law
provides for his humane treatment and that persons violating
this law are subject to prosecution and imprisonment. The
GOI response for the first time notes that mental suffering
falls under this rubric.


4. (SBU) The Indian response also did not specifically
answer whether Barapind would be held in judicial remand upon
his return to India, whether his trial would be held in
Punjab, whether he would be held in Punjab prior to and
during his trial, or where he would be incarcerated if
convicted. The response does note in the third paragraph
that the USG "will be informed about the status of the
criminal trial against him," however.


5. (SBU) We also note the GOI indicated in its response that
it would obtain and convey to us information regarding the
post-extradition treatment of the Sandhus.

Embassy POC
--------------


6. (U) Per Ref A Para 6, Embassy POC will be Poloff Howard
Madnick. Poloff will be with the Embassy until July, at
which time a replacement POC will be selected. Contact
information:
-- e-mail: madnickhj@state.gov
-- work phone: 91-11-2419-8657
-- mobile phone: 91-98105-97864

Sandhu Case Not Necessarily a Barometer for Barapind
-------------- --------------


7. (SBU) The most glaring difference that distinguishes the
1997 Sandhu extradition from the Barapind extradition request
is the changed political climate in Punjab. The insurgency
that spawned police excesses was dying out in the mid-1990s;
as of 2006 "the Punjab militancy" is a historical event, and
the passage of time has reduced the intense operating
environment. Many new human rights cases today are filed by
the alleged victims of long-past abuses. Although the courts
have been slow in clearing the historical case load, reports
of truly new abuse cases are a small fraction compared to
those lodged during the height of the insurgency. Moreover,
Indian society's treatment of Sikhs has returned to the
harmony and respect of the past, with Sikhs occupying senior
positions throughout government and society.


8. (SBU) Another important difference to consider is that
the Sandhu case proceeded relatively swiftly; the Indian
government requested extradition in 1996 and it was executed
in 1997 (Ref E). The Barapind extradition process has
proceeded more deliberately, having begun with the Indian
government request for extradition in September 1997.
Mission believes the time and effort the Indian government
has invested in retrieving Barapind -- and the prospect of US
cooperation on future extraditions -- will also help protect
Barapind's human rights.

Improved Conditions for Sikhs
--------------


9. (SBU) Conditions for Sikhs began to improve in the
mid-1990s and progress has been rapid during the past five
years. In order to answer Department of Homeland Security
questions regarding the current treatment of Sikhs in India,
Embassy New Delhi investigators have worked in Punjab and
other Indian states for years to determine the validity of
Sikh asylum applications; to date, we have been unable to
substantiate a single such claim. Conditions since the
mid-1990s have improved so dramatically that there have been
no legitimate grounds for such asylum seekers since that
period. Many legitimate asylum seekers who applied before
that period and had already been settled in the US and other
countries have since returned to India and reassimilated into
Indian society. Indeed, recent press announcements have

NEW DELHI 00002171 003 OF 004


highlighted the cases of "wanted terrorists" who have since
assumed leading positions in the Punjab business community.

Signatory to Convention Against Torture
--------------


10. (U) India signed the UN Convention against Torture and
other Cruel, Inhuman or Degrading treatment or Punishment
(Convention Against Torture or CAT) in October 1997, less
than a year after the Sandhus were extradited, and narly 10
years ago. Although not yet ratified, the Indian government
recognizes that "as a signatory, India has good-faith
obligation not to act against the objectives and purposes of
the Convention" (Ref B).

High Profile, High Visibility, High Accountability
-------------- --------------


11. (SBU) Mission is keenly aware of the culture of torture
and extrajudicial punishment in Indian jails, as we have
outlined in successive Human Rights Reports; furthermore,
Mission has been unable authoritatively to confirm whether
the Sandhus were tortured by Indian police officials after
their extradition. However, "Punjabi Kesari" editor Avinash
Chopra -- who lost several relatives to Sikh terrorists in
the 1980s-90s -- told us "no one will touch (Barapind)"
because his case is considered high profile (in part because
of the extradition) and also because of the strength of human
rights activists in Punjab (Ref D). Mission understands this
will be the first extradition to India from the US since

2000. Mission also notes the continuing Indian press
coverage of Abu Salem, who was extradited from Portugal last
year for his alleged role as the principal suspect in the
March 12, 1993 Mumbai bombings that killed 250 and injured
more than 700. If Barapind is extradited, particularly after
the Abu Salem extradition and the recent (and extensively
media covered) historic visit of President Bush, Mission
expects extensive and long-running media coverage will
contribute to guaranteeing good behavior on the part of
Barapind's jailers.


12. (SBU) We are similarly encouraged by the most recent
terrorism case involving Sikh suspects, the May 2005 Delhi
cinema bombings (Ref F). Mission believes the high
visibility of the case helped ensure that police officers in
Delhi, Haryana, and Punjab maintained professional standards.
The investigation into the cinema bombings was marked only
by arrests, not by extrajudicial killings or other police
excesses.

National Human Rights Commission Maturing
--------------


13. (SBU) India's National Human Rights Commission -- the
entity created in 1993 and tasked by law "for better
protection of human rights" -- was a nascent organization
when the Sandhus were extradited in 1997, but now has over a
decade of experience in investigating and assessing human
rights violations in India. Their mandate includes both
positive human rights violations and "negligence in the
prevention of such violation," agcording to the Protection of
Human Rights Act (1993). GOI assurances aside, the NHRC is
legally empowered to visit prisoners "in any jail or any
other institution under the control of the State Government"
for this purpose. Their senior officers are empowered to
"enter any building where the Commission has reason to
believe that any document relating to the subject matter of
the inquiry may be found, and may seize any such document."
The NHRC is an active organization that operates
independently of the government and has loudly criticized
some government institutions and actions.

Changed India-US Macro Dynamic
--------------


14. (SBU) Finally, the contours of the India-US relationship
have dramatically improved over those in 1997. From a narrow
and emerging relationship, we now have a broad-based and
deep-rooted bilateral agenda on a range of issues, including
counter-terrorism, which was lacking in 1997. Furthermore,
the Barapind extradition -- if it is to transpire -- will do
so after not one but two US Presidential visits since the
Sandhus were extradited. The GOI would be interested in
maintaining and furthering these relations, including for
future extraditions, and would be more vigilant about not

NEW DELHI 00002171 004 OF 004


allowing any missteps that could lead to a reversal of
relations either on extraditions specifically or on the
India-US relationship more broadly.


15. (U) Visit New Delhi's Classified Website:
http://www.state.sgov.gov/p/sa/newdelhi
MULFORD