Tag Archives: 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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A Former Pope and the Issue of Immunity

Today at 8 p.m. Pope Benedict XVI will step down after announcing that he would be the first Pope in 600 years leave the papacy by a means other than natural expiration. This decision is history making in many ways and a momentous opportunity for the Church to remake itself. Unfortunately, there are those out there who have taken this opportunity to target the Church for their own purposes. One group in particular, albeit quite on the fringe, has called for the prosecution of the Pope Emeritus for his handling of, among other things, the sexual abuse scandal around the world, in particular Canada, as well as other alleged abuses committed by the Church over the last hundred years or so.

The prospect, no matter how far fetched, of criminal charges (or even a civil case) against a former pontiff is an excellent opportunity to discuss sovereign immunity and its application to acting and former heads of State. The Pope is head of State of the Vatican State after all, so the legal framework applied to State immunity is the proper one for considering the issue.[1]

The Law

The basic text on the issue of immunity, at least when referring to diplomatic agents, is the Vienna Convention on Diplomatic Relations of 1961. This is a good place to start our analysis even though heads of State are not strictly speaking diplomatic agents. Article 31 reads in pertinent part:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a)         A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c)        An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

This provision clearly provides for the immunity from suit, including criminal charges, of the members of the diplomatic staff of a consular mission sent from one State to another. A similar rule governs in the case of United Nations Personnel. Sections 18 and 19 of the Convention on Privileges and Immunities of the United Nations of 1946 reads in pertinent part:

Officials of the United Nations shall :

(a)         be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity; […]

In addition to the immunities and privileges specified in section 18, the Secretary-General and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor children, the privileges and immunities exemptions and facilities accorded to diplomatic envoys, in accordance with international law.

Like the envoys of States, the envoys of the United Nations cannot be subject to legal process (as regulated by the particular regime of the treaty). This second treaty, however, highlights something that is not mentioned in the Vienna Convention, that the immunity comes in two guises. One is the prohibition on legal action against a person holding a diplomatic/UN office and the other is action against the person for their official acts: personal and functional immunity respectively. These rules also apply to high-ranking State officials such as the head of State.[2]

Article 18(a) makes explicit the otherwise general rule that a person working for a State or organization may not be held liable for their official acts that are attributable to that State or organization. The International Court of Justice in the Arrest Warrant case recognized this rule observing:

after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy al1 of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.[3] (emphasis added)

The language makes clear that the “private” capacity means that official acts are outside the reach of other States’ jurisdiction. In other words, when a person leaves office he or she gives up their personal immunity but retain their functional immunity.

An exception exists for the rule regarding functional immunity once a person leaves office: the commission of international crimes subject to universal jurisdiction. This is not the place to enter into a detailed discussion of what crimes are “international”. It should be enough for present purposes to note that the crimes universally recognized as “international” are genocide, war crimes and crimes against humanity.[4]

The Charges

The charges leveled at Benedict are that he, as head of the Church, did not take sufficient care to protect children from abuse by members of the clergy. He is not accused of personally abusing any children or committing or being an accessory to any other abuse related crime. The charges are essentially that he did not do enough as Pope to prevent abuse or make reparations for harm allegedly caused by the Church. If he is to be liable to legal action it must be shown either that the alleged crimes were private acts by the Pontiff or that they amount to international crimes.

Private Acts

The first step in the analysis is to determine whether the alleged acts constituting crimes were taken by Pope Benedict XVI as part of his official duties, or rather, if they were private acts. It should be clear from the nature of the charges that the alleged criminal acts were not private in nature. Benedict is not accused of having personally harmed anyone, but rather of having been a poor leader thereby allowing harm.

Administration of a Sate or public organization is not a private act for which an individual enjoying functional immunity can be prosecuted. To hold otherwise would mean that functional immunity has no effect as any action taken in favor of the State or organization would be private. This is not to say that if there were proof of collusion between the administrator and the direct perpetrators of a crime that no action would lie, only that in the absence of such direct involvement functional immunity bars prosecution.

Therefore, as Pope Emeritus, Benedict will enjoy function immunity preventing legal action on allegations relating to his alleged mismanagement of the Church.

International Crimes

Does institutional child abuse amount to an international crime? The clear answer is no, it does not.

International crimes are those that threaten the international community as a whole and they are comprised of particular elements. Genocide requires the specific intent to destroy a group in whole or in part. War crimes require the existence of an armed conflict. Crimes against humanity require a widespread and systematic attack against a civilian population as such. The allegations, while serious and grave, do not fit these definitions.

What we have, instead, is individual instances (albeit a great number of them) of abuse spread around the world in a sporadic and unconnected manner. Many members of the clergy and hierarchy failed in their duties to protect innocent individuals, and they should be held to account for their actions. However, that does not mean that the crimes, no matter how horrible, are international crimes. This is not to say that the Church is not in any way responsible, only that the invocation of jurisdiction over an ex-Pontiff is not the proper and legal way to search for justice.

[1] Some might say that the Pope gets immunity as the leader of the Church, a religious institution. This is not the case.

[2] Arrest Warrant Case, ¶ 51 (2002).

[3] Ibid., at ¶ 61.

[4] These crimes can be found in the statutes of the UN international criminal tribunals and the International Criminal Court.

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No Civil Suit Against Paul Kagame

The United States Court of Appeals for the Tenth Circuit issued an opinion on 10 October 2012 dismissing a civil suit against Rwandan President Paul Kagame following a request to do so by the Executive Branch (i.e., the State Department). Plaintiffs filed suit based on the Alien Tort Claims Act and other laws alleging that Mr. Kagame ordered the assassination of Presidents Habyarimana and Ntaryamira of Rwanda and Burundi, respectively, thereby setting off years of violence in the region and, most notably, the Rwandan genocide. It was alleged that the assassination of the ethnic Hutu presidents was designed to provoke violence against the Tutsi minority and justify Kagame’s seizure of power in Rwanda.

The Court of Appeals affirmed the district court dismissal of the action by citing, among other things, US case law on sovereign immunity[1] and the Foreign Sovereign Immunities Act of 1976.[2] Essentially, the case law and statute amounted to a carte blanche for the executive to decide which individuals receive immunity and who do not based on their present status as a member of a foreign government.

Dismissing the suit against Kagame was with out a doubt the correct outcome in this case. Courts of one State do not have the authority to entertain a case against a sitting Head of State of another country. What is remarkable (in as much as it is not really remarkable at all) is that the Court of Appeals did not mention any of the fundamental international points of reference, such as the Arrest Warrant case or the recent judgment in Italy v. Germany both before the International Court of Justice. A foot note to either of these decisions would have been appropriate, especially given the fact that the US Executive’s position mirrors the present state of international law as elucidated by the ICJ.

[1] The principle citations were Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974); Samantar v. Yousuf, 130 S. Ct. 2278, 2285 (2010); Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945); Ex parte Republic of Peru, 318 U.S. 578, 589 (1943); Ye. V. Zemin, 383 F.3d 620, 626 (7th Cir. 2004).

[2] Codified in 28 U.S.C. §§ 1330, 1602-11.

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Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti

On Monday, 16 April 2012, I had the pleasure of attending a lecture by Professor Natalino Ronzitti at the Libera Università Internazionale degli Studi Sociali Guido Carli in Rome where he discussed the arrest, prosecution and punishment of pirates. Prof. Ronzitti has taught at universities around the world from Italy, the United Kingdom, the United States and Egypt. He has also served as and advisor to government ministries and published on the issues of piracy, national sovereignty, armed conflict and international law generally. The lecture hit a high point of interest when Prof. Ronzitti discussed the events on the Enrica Lexie, something that has been discussed often on this blog. He argued that Italy should have exclusive jurisdiction over the Italian guards accused of killing the Indian fishermen.

Prof. Ronzitti started by setting out what is meant by “piracy” in international law. By definition, piracy is a crime that is committed on the high seas, meaning not within the territorial sea of any State. That is to say that “piracy” for the purpose of this discussion is the crime iure gentium (international crime), as opposed to any set of acts called “piracy” by the laws of a particular State. Within this context, Prof. Ronzitti set out two necessary criteria for an act to be considered “piracy”: (1) that the events involve at least two ships and; (2) that the would-be piratical acts were committed for private ends. This last criterion, for example, excludes acts that are committed for political ends.

Next the professor turned to the methods available to prosecute and punish piracy. The primary method he identified was the arrest and trial of the alleged pirates by national authorities (a solution acknowledged to be often inconsistent due to varying national laws and practices). He emphasized that only national military ships (and those other clearly identified ships dedicated to the purpose by national authorities) are authorized to stop pirates. Private individuals or vessels are not permitted to go pirate hunting. The right to seize pirates on the high seas includes the limited right to stop vessels that fly under the flag of a State different form the one of the military vessel conducting the stop. In the case of pirates off the Somali coast, the United Nations Security Council has authorized States to conduct piracy suppression actions in Somali national waters and under certain circumstances to pursue the pirates aground in Somalia.[1]

This brought the discussion to the legal methods available to private ships to protect themselves from pirates. Prof. Ronzitti referred to the work of the International Maritime Organization (their website can be found here). In particular he referenced the fact that it is permissible to have armed security on commercial ships to repel pirate attacks. However, these armed personnel are limited to a defensive role and are not permitted to pursue the pirates. He pointed out that France uses its own military to provide security, while Spain employs private guards and Italy (at least legislatively) permits both.

At this point the lecture turned to address the growing dispute between India and Italy over the Enrica Lexie. This is the incident involving the Italian guards on the oil tanker that allegedly fired on, and killed, Indian fishermen whom they mistook for pirates. These two Italian guards are currently in Indian custody awaiting trial. The controversy centers on whether or not India can rightly assert jurisdiction over the case under governing principles of Public International Law. (A more detailed description of the events and the controversy can be found here.)

Prof. Ronzitti started by noting that the events took place on the high seas (admittedly within India’s exclusive economic zone, however, that is still the high seas) and that the facts of the incident are in dispute. However, he wished to point out that the current incident would have been avoided had the Italian vessel not diverted to Kochi. The reason stated for the Lexie going to Kochi was to identify the pirates who had attacked the ship earlier in the day. This of course was a pretext that permitted the Indian authorities to seize the vessel and arrest the two Italian military guards. Had the vessel not diverted to Kochi, there would have been no arrest.

On the issue of jurisdiction over events on the high seas, Prof. Ronzitti discussed three articles of the United Nations Convention on the Law of the Sea (UNCLOS). He first mentioned Article 97 as a cited basis for denying Indian jurisdiction over the events in question. This article provides,

1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. […] 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.

Prof. Ronzitti quickly pointed out that while the provisions of this article refer to “any other incident of navigation”, the real meaning of this phrase is to encompass other collisions that may not be between two ships (such as a vessel colliding with an offshore oil rig). Another article referred to was Article 94, however it too is of little assistance to the Italian case.[2] Prof. Ronzitti then turned to Article 92 which reads in pertinent part,

Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.

The professor argued that this article would be a better basis to assert exclusive Italian jurisdiction over the events on the Enrica Lexie. However, he also admitted that it could be argued that the shooting events took place both on the Italian vessel and on the Indian ship thereby establishing jurisdiction under Article 92 for both States. A more complete description of the applicatoin of this “objective” teritorial principle to this case can be found here.

Prof. Ronzitti’s strongest argument for exclusive Italian jurisdiction over the guards accused of killing the Indian fishermen was based on the idea of functional immunity. He emphasized that the Italian guards are members of the Italian military  (he noted also that the legislative framework for private Italian guards has not yet been workably put in place). In particular, he pointed out that both national Italian law and United Nations resolutions support the use of armed guards to repel pirates. As agents of national and international policy, he argued, the actions of the Italian military guards should be attributed to Italy, not the guards individually. This would exclude their criminal trial in India. Prof. Ronzitti noted that this kind of function immunity has a basis in customary international law going back to the early 1800’s.[3]

The lecture was graciously organized by Professor Marina Mancini of the Dipartimento di Giurisprudenza at LUISS.

[1] Prof. Ronzitti made reference to UN Security Council Resolution 1851 of 2008.

[2] It reads in pertinent part “7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”

[3] He specifically referred to the McLeod Case which can be found in, Moore: A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, Washington, Government printing office, 1906 at § 217.


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