How Diplomatic Immunity Works

December 20, 2013 1:57 AM

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How Diplomatic Immunity Works

The arrest and alleged ill-treatment of an Indian diplomat accused of committing visa fraud and underpaying her domestic maid in New York has put the complex system of diplomatic immunity under the spotlight.

Devyani Khobragade, 39, an Indian consular officer, was handcuffed outside her daughter’s school in New York and put in jail briefly before posting bail last Thursday. She was strip searched and had to share a cell with drug addicts during her brief arrest.

U.S. prosecutors charged her with committing a visa violation and making false claims about the amount of money she paid an Indian national who worked for her as a domestic helper in order to obtain a visa for her to enter the country. If convicted, Ms. Khobragade faces a maximum sentence of 10 years for visa fraud and five years for making false statements.

She will challenge the prosecution on grounds of diplomatic immunity, said her lawyer Daniel N. Arshack. “She is protected from prosecution by virtue of her diplomatic status,” Mr. Arshack said in an email.

The U.S. State Department prosecutors said Ms. Khobragade does not have full diplomatic immunity. It said that, as a consular official, rather than a full diplomatic agent, under the United Nations’ Vienna Convention on consular relations, she is immune from arrest only for crimes committed in connection with her work.

Diplomats and consular officials are shielded under two different United Nations treaties – the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963.

The diplomatic agents, including ambassadors, secretaries, office managers and some security personnel enjoy “complete personal inviolability,” which means they cannot be handcuffed (except in exceptional circumstances), arrested or detained or have their property can be searched, according to the State Department’s guidance document for law enforcement and judicial authorities. Family members forming part of the household of diplomatic agents enjoy precisely the same privileges and immunities.

Diplomatic agents are also immune from criminal and civil law suits barring a few exceptions and cannot be prosecuted, even for a serious offence, unless the immunity is waived by the sending country.

By contrast, consular officials – those who issue travel documents, deal with problems of their own nationals in the country – are protected in this way only while going about their official functions.

In Ms. Khobragade’s case, “she fell under that specific kind of immunity, and would be liable to arrest pending trial pursuant a felony arrest warrant,” State Department spokeswoman Marie Harf said.

“Criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists,” the State Department rulebook says.

Still, the State Department has the authority to reject Ms. Khobragade’s move to the U.N.

It remained unclear Thursday whether she would be granted retroactive diplomatic immunity.


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