Monthly Archives: December 2013

Issues of Immunity: India v. USA

On 12 December 2013, Federal authorities in New York City arrested Mrs. Devuani Khobragade – an Indian consular official – on charges of visa fraud and making false statements. The charges arise out of allegations that Mrs. Khobragade paid her house keeper less than minimum wage after pledging to do so in the housekeeper’s visa application. Such declarations are required to obtain visas for domestic workers to enter the United States.

Immediately after the arrest, Mrs. Khobragade claimed she was not subject to trial because, as a diplomat, she should benefit from personal immunity. Then, following these statements, she was transferred from the Indian consular mission in New York City to the United Nations diplomatic mission. The United States claims any such transfer will not effect the criminal trial. This post will analyze both of these claims: (1) if Mrs. Khobragade is entitled to immunity as a consular official and (2) if her transfer to the United Nations mission would prevent her trial.

Consular Immunity

Article 43 of the Vienna Convention on Consular Relations of 1963 provides that,

Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

This provision provides for “functional immunity,” or, in other words, immunity from suit based on official acts. Visa applications and the employment of a domestic are not and should not e considered “official” acts. Their only connection to the work of the mission is that they allow the consular agent more time to work, as they will not need to tend to housework. However, if this were to an official at, all acts by the consular agent could be “official” in that they allow the agent to go about their day. Such total immunity from jurisdiction for the individual agent is better conceived of as “personal immunity” and is not established anywhere in the Vienna Convention on Consular Relations. In fact, it is implicitly excluded.

Article 41(3) of the convention reads in pertinent part,

If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.

The convention clearly allows the institution and prosecution of criminal cases against consular officials. While agents may not be arrested based on minor charges (as set out in article 41(1)), they are liable to imprisonment upon conviction (this is article 41(2)). These provisions clearly set out the consular officials do not benefit from personal immunity and may therefore be prosecuted.

Considering that the charges against Mrs. Khobragade do not involve “official” acts and her post did not carry personal immunity, the United States may properly prosecute her based on allegations of Visa fraud and making false statements.

Diplomatic Immunity

The Indian solution to the problem of Mrs. Khobragade’s forthcoming trial has been to transfer to the diplomatic mission to the United Nations. A post, it is believed, will prevent her trial. This part of the post will evaluate this proposition.

Article 31(1) of the Vienna Convention on Diplomatic Relations of 1961 states that,

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

This rule is not subject to conditions. It is true that article 41(1) sets out that diplomatic agents must respect the law of the receiving State. However, this has nothing to do with immunity or ability to arrest or being subject to trial. Article 39(1) of the convention establishes when immunity begins, and when it ends. It reads,

Every person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry of Foreign Affairs or such other ministry as may be agreed.

The immunity continues until the diplomat has had a reasonable amount of time to leave the country as set out in article 39(2).

The terms of the convention clearly subtract diplomats from the jurisdiction of the host State, no exceptions (except waiver by the sending State). This personal immunity ceases upon departure of the diplomat, at which point prosecutions for criminal may be begun, or presumably, resumed. Even if this were not the case, and a prosecution could legitimately continued, the diplomatic agent would not be required to appear in court and could not be taken into custody on conviction. Any enforcement would have to wait until the person lost their diplomatic status, at which point they would already be out of the country and outside the reach of the domestic justice system (extradition could be requested, but it is very unlikely any such request would be granted).

In the present case, should Mrs. Khobragade take up a diplomatic post at the Indian mission to the United Nations, she will likely be out of reach of the American justice system.

There are still some details of this matter than cannot be addressed in a blog post such as this, not all the facts are in. Questions remain as to whether the charges against Mrs. Khobragade are well founded. Information is also lacking regarding the exact procedural mechanisms that are necessary for her to officially transfer to the Indian diplomatic mission to the United Nations. Whatever the specifics, however, it would seem to be counter intuitive if she were allowed to escape justice (and remain in New York) due solely to the clever shuffling of paper resulting in her job moving from one Indian office to another. Unfortunately, from the outside it is not possible to gain access to all the necessary documents to fully analyze the situation and determine what should happen in this specific case.

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East Timor vs. Australia

On 18 December 2013, the Democratic Republic of Timor-Leste initiated proceedings before the International Court of Justice (ICJ) against the Commonwealth of Australia alleging that the latter violated diplomatic immunity in entering the former’s embassy without permission. More information on these events can be found here.

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The Netherlands v. Russia, Criminal Jurisdiction and The Case of the Artic Sunrise

On 22 November 2013 the International Tribunal for the Law of the Sea (ITLOS) issued provisional measures ordering the Russian Federation to release the Dutch vessel the Artic Sunrise and her crew from detention and allow them to leave the country. The dispute is about Russian jurisdiction to arrest the vessel (in a technical sense) and prosecute her crew for crimes they allegedly committed. The issue at the heart of the dispute is whether or not Russia violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by taking the vessel and her crew into custody while they were in the exclusive economic zone without first asking the Netherlands government for permission to board.

ITLOS ordered the provisional measures because it accepted that the failure to comply with such an order would irreparably harm the Netherlands’ interests pending resolution of the dispute between the two countries. The interests considered by the tribunal being the condition of the vessel and the crew’s liberty interests, both of which being harmed by their detention. As a guarantee pending the resolution of the international dispute (and to guarantee payment of any damages to Russia) the tribunal ordered that the Netherlands take out a bond of 3.6 million.

Russia, for its part, has stated that it will ignore the order for provisional measures, as it does not accept that jurisdiction of the tribunal. In fact, Russia did not participate in the hearing on the Dutch request for the tribunal to intervene.

What makes the issue so interesting is that it appears to conflate the issue of a potential infraction of an international obligation (such as the arrest of the vessel) that is capable of being resolved by the payment of money (economic loss) and the enforcement of national criminal laws (against the crew for their alleged crimes). These two issues are of a type different, one is inherently “civil” in nature while the other has to do with public order. A bond, such as that ordered by the tribunal, can work to guarantee compensation for Russia should the Netherlands lose the suit and be forced to pay – which is the purpose of seizing the boat in the first place. The same cannot be said for the release of the vessel’s crew.

The enforcement of criminal law is not about money (or at least it should not be). The idea behind penal sanction is that punishment will not only deter the culprit from violating the law a second time, but the existence of punishment will deter others from committing crimes in the first place. If the crew of the Artic Sunrise are guilty of crimes under the Russian penal code, their release will effectively prevent their punishment and thereby undermine the effectiveness of Russian criminal justice. Even assuming, however, that these considerations are not relevant, that would still not mean Russia would lack the legal ability to try the crew of the Artic Sunrise because the vessel was seized in violation of UNCLOS.

There is an internationally recognized principle that those who break the law may be tried even if their initial arrest was made in contravention of the law, known as the male captus, bene detentus rule. This rule has been explicitly accepted as a matter of International Criminal Law, and has been applied by States to justify national prosecutions. Some countries object to the validity of this rule of law and choose, as a matter of national law to prevent trial after illegal arrest. No rule of generally applicable customary international law requires such a result.

ITLOS did not address the issues of the enforcement of criminal law or male captus, bene detentus. The basis for its issuing the precautionary measures vis-à-vis the crew of the Artic Sunrise is not clear. It would have been great benefit had the tribunal decided to explain its decision, unfortunately, it did not.

In the end, Russia should comply with the order to release the Artic Sunrise and accept the bond on this matter. This is the correct legal result and it could be good as a political bargaining chip. When it comes to the custody of the crew, however, I cannot say that Russia is entirely in the wrong, at least as a matter of international law on the exercise of criminal jurisdiction.

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