Tag Archives: diplomatic immunity

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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The Enrica Lexie Incident: Further Developments

This past week there have been some exceedingly interesting developments in the Enrica Lexie incident. India allowed the Italian guards to return to Italy in order to vote in the recent elections here, their second release to return to Italy since their arrest. The elections being over, the Italian government has since announced that the guards will not return to India as had been previously arranged. In response, India has threatened to arrest Italy’s ambassador.[1] This post will analyze whether India may legally arrest or detain Italy’s ambassador.

One thing should be made clear at the outset, the Italian ambassador signed a letter as part of the guarantee that the Italian guards would return to India after their release ended. We do not have a copy of this letter and for the purpose of analysis here, will assume it says nothing relevant.

International Law on Diplomatic Immunity

India has threatened to detain the Italian ambassador because of his country’s decision to not “re-extradite” the marine guards back to India after the expiration of their release to vote in the elections. As an ambassador, Italy’s representative benefits from certain rights and privileges under international law. Most of these rights are codified in the Vienna Convention on Diplomatic Relations of 1961. Article 29 reads,

The person of a diplomatic agent [including ambassadors] shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

The plain meaning of this article is that an ambassador, duly accredited, may not be detained in any manner. While the language appears to refer to formal arrest, preventing an agent from leaving a country is a form of detention. The only difference is the cage is much bigger.

Importantly, this immunity is not for the benefit of the diplomatic agent. It belongs to the sending State and may be expressly waived by the sending State.[2]

In case there was any doubt as to this interpretation, other parts of the treaty refer to the fact that a diplomatic agent’s immunity extends until such time as he or she leaves the country. Article 39 (2) reads,

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.

In addition, there is also article 44 of the convention applying to armed conflicts, which reads,

The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.

It appears that they establish a right to immunity until such a time as the diplomatic agent leaves the receiving State, a right they have even in times of armed conflict. These articles establish the basic legal framework of diplomatic immunity under international law.

The Purpose of Diplomatic Immunity

The rule on diplomatic immunity applies to any criminal or civil action.[3] This means that a member a diplomat (or member of his household)[4] cannot be arrested and charged with a crime even if they commit if flagrantly on the territory of the receiving State.[5] This is an incredible shield that can lead to extreme injustice to the victim’s family.

Behind this rule is a fundamental necessity of the international system, the ability to create and maintain open communication channels. The ability to have a representative in a foreign country allows the sending State to bend the ear, as it were, of the local government. Ambassadors, being important representatives of a State, tend to be individuals of some importance. As such, these individuals might be tempting hostages or bargaining chips in the games of high politics. True, when a diplomatic agent commits a crime there may be an injustice. On the other hand, not ever charge against a diplomatic agent is necessarily true. Furthermore, it would not be unheard of for a State to invent charges against an ambassador to hold him or her hostage in an attempt to gain advantage over the sending State. The immunity is to prevent the receiving State from being able to leverage the sending State with threats to the ambassador.

To avoid these and related controversies the international community adopted the rule of ambassadorial immunity, which in any case, has existed since antiquity.

The Case of the Italian Ambassador

As noted at the beginning of this post, India has threatened to detain the Italian ambassador in response to Italy’s decision not to re-extradite the naval guards accused of killing two Indian fishermen. The question is whether or not India could have legal grounds to hold him. The answer is mostly likely not.

The Italian ambassador as a diplomatic agent benefits from the rule codified in the Vienna Convention that he “shall be inviolable. He shall not be liable to any form of arrest or detention”. Furthermore, as an ambassador, he has the right to leave and return to his home country, a right guaranteed in times of war and so seemingly guaranteed in times of peace where tensions would be much less.

Modern international law allows only one way around the immunity of a diplomatic agent: waiver by the State that is the beneficiary thereof.[6] In this case, where Italy is being accused of not honoring an international obligation, it is very unlikely – actually so close to impossible even talking about it seems foolhardy – that the ambassador’s immunity will be waived. As a simple consequence, any proceedings against him or attempts to prevent him from leaving India will be an internationally wrongful act for which India will be responsible.

There is an important caveat to this post. As noted at the beginning, the Italian ambassador signed some form or document when the guards were allowed to leave India. It is impossible to evaluate the situation without knowing exactly the contents of that document. An argument is making the rounds that it contained a waiver of immunity in this type of case. Under governing law any waiver must be “express”. It is possible, if unlikely, that such a waiver was made in the release guarantees.

All else being equal, India does not have the right to detain the Italian ambassador.

Countermeasure?

There is one final possibility that would “legalize” an action against the Italian ambassador. That is for India to claim that the ignoring of the ambassador’s immunity is a countermeasure for the violation of release agreement. This is an argument that needs to be explored in greater depth than the space provided here would allow.


[2] Vienna Convention, article 32 (2).

[3] Vienna Convention, article 31.

[4] Vienna Convention, article 37.

[5] For example drunk driving and vehicular homicide. I am personally aware of such a case.

[6] There may also be the accusation of an international crime, however, this is far outside the scope of this brief blog post.

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