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Home Diplomatic Immunity Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Consul-General

Published on December 20, 2013        Author: 

For a subsequent posts on this issue see part 2 and part 3.

A serious diplomatic row is brewing between India and the United States regarding the arrest  and treatment of an Indian consular official accredited to the United States (see coverage by the BBC, New York Times & the Daily Mail). The brief background to the story is that last week, US Federal authorities arrested Devyani Khobragade, who is the Indian Deputy Consul-General in New York, on charges of visa fraud. Ms Khobragade is accused of submitting false documents to US authorities in order obtain a work visa for her housekeeper/maid. She is also accused of paying the maid less than the minimum wage prescribed by US law. The dispute over her arrest has become particularly acrimonious because it is alleged that not only was Ms Khobragade arrested at her daughter’s school, that she was handcuffed (which is denied by US authorities) and then subjected to a strip-search (which seems to be admitted) (see New York Times piece). Although US Secretary of State Kerry has called the Indian authorities to express regret over the incident, India has demanded an apology from the US and has taken “retaliatory” measures. Those measures include the removal of some privileges previously accorded to US diplomats, a refusal by Indian officials to meet with a US Congressional delegation in India, and perhaps most seriously, the removal of security barricades that were in front of the US embassy in Delhi (see here and here).

This post address three main issues (i) whether the Indian official is immune from prosecution; (ii) whether she was immune from arrest in the first place; and  (iii) the legality of India’s response to the incident. The key legal question that has arisen in this episode is whether the Indian consular official is entitled to immunity from prosecution. Her lawyers have asserted that she is immune from US jurisdiction. It is not clear whether India has similarly asserted that she is immune though India has demanded an apology which suggests that they think the US has done something wrong. Most of the media have reported the US position which is that consular officials, unlike diplomatic agents, are not entitled, under international law, to full immunity from criminal jurisdiction. This is correct. Art. 43(1) of the Vienna Convention on Consular Relations (1963), which India and the US are both party 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.”

In other words, consular officials are only entitled to immunity with respect to their official acts (immunity ratione materiae) and only with respect to those official acts carried out in the exercise of their consular functions. This means that the host state (the US) is entitled to prosecute consular officials for private acts. It seems clear that employing domestic staff is a private act. It is not one done in the exercise of consular functions. Therefore, Ms Khobragade, is not immune from prosecution in the US with regard to the visa fraud charges. However, it has been reported that Ms Khobragade has been moved to the Indian Permanent Mission to the UN. Presumably, the reason for this is to enable her to benefit from the immunities which representatives to the UN are entitled to. This move also perhaps constitutes an admission by India that as a consular official, she is not entitled to immunity from prosecution. However, it is not clear that the move will enable her to benefit from immunity from prosecution. I will deal with this question below, after examining whether Ms Khobragade was immune from arrest in the first place.

Personal Inviolability & Immunity from Arrest & Detention

That the US is entitled to prosecute is not to say that consular officials have no immunity at all with respect to criminal proceedings relating to private/non-consular acts. They do have, in certain cases, what may be described as immunity from arrest or detention, even if it relates to a private/non-consular act and even when the host state is entitled to commence criminal proceedings. The Vienna Convention on Consular Relations provides for personal inviolability of consular officers. Article 41 provides that:

“Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority”.

This provision means that even if the US was entitled to institute criminal proceedings against the Indian Consular office, a separate question needs to be asked as to whether the US was entitled to arrest and detain her, even if only briefly. The answer to this question depends on (i) whether the charges against her are ‘grave’ and (ii) whether the decision to arrest was pursuant to a decision of a judicial authority. With respect to (ii) it appears that Ms Khobragade was arrested on the basis of a judicially issued arrest warrant. This would seem to satisfy that question.

What amounts to a ‘Grave Crime’ under the VCCR?

With respect to the arrest and detention, the key question is whether the charges against Ms Khobragade are ‘grave’. This term is not defined by the Vienna Convention but it is clear that it refers to serious crimes. However, does the seriousness of the crime refer to the seriousness in relation to the consequences of the crime itself or in relation to the penalty for the crime. If the latter is the criterion, then it would be clear that the crime at issue here is serious and grave. Apparently, the penalty for the crimes in question could be up to 10 years imprisonment.  However, if seriousness were defined only in relation to the penalty then it would essentially be host states and host state law that defines when a consular official can be arrested. By contrast, one could argue that the concept of a serious crime could have an ‘autonomous meaning’ so that it means the same thing with regard to all parties to the Vienna Convention.

The Vienna Convention on Consular Relations is a product of the work of the International Law Commission. Article 41 was drafted by the ILC and the ILC commentary sheds a bit of light on the origins of that provision. Essentially, the ILC was seeking to settle a matter on which there had been divided practice historically. However, Art. 41 in providing for a degree of personal inviolability of consular officials sought to build on provisions in numerous consular conventions providing for such inviolability. These conventions provided for personal inviolability except in cases of offences of a serious nature. However, the conventions expressed this idea of offences of a serious nature in different ways. Sometimes they simply provided an exception to personal inviolability in cases of “serious criminal offences”; sometimes the exception was for offences punished as felonies; and sometimes the exception applied to offences to which a particular length of sentence or punishment was attached. The ILC itself initially had two options for this provision. In one option, arrest would have been permissible where the maximum sentence was not less than 5 years and the second option, was the one finally adopted – an exception for grave crimes. This option was adopted because most states that commented on the draft preferred it.

The prior practice on which the ILC based the draft of Article 41 then seems to indicate that the seriousness of the crime in respect of which consular officials can be arrested is based on the length of sentence or the characterization of the offence by the receiving State. Since the crime in this particular case is a felony and the sentence could be up to 10 years then this would be a grave crime.

However, one may wonder whether the notion of grave crimes is not one that should be given an autonomous meaning similar to the manner in which human rights tribunals have held that concepts used in human rights treaties (eg, the notion of a criminal charge in the fair trial provisions) bear a meaning autonomous from that which they possess under domestic law. It is important to recall why consular officials have personal inviolability, except in cases of grave crimes. As the ILC commentary to Article 41(1) states:

“The privilege under this paragraph is granted to consular officials by reason of their functions. The arrest of a consular official hampers considerably the functioning of the consulate and the discharge of the daily tasks — which is particularly serious inasmuch as many of the matters calling for consular action will not admit of delay (e.g., the issue of visas, passports and other travel documents; the legalization of signatures on commercial documents and invoices; various activities connected with shipping, etc.). Any such step would harm the interests, not only of the sending State, but also of the receiving State, and would seriously affect consular relations between the two States. It would therefore be inadmissible that a consular official should be placed under arrest or detention pending trial in connexion with some minor offence.”

The point is that there should be no interference with the work of consular officials if they are accused of a minor offence. There should be very good reason to prevent them from doing their work. All of this suggests that there should be a general and objective baseline against which that interference is measured. Something that would be universally regarded as serious.  Indeed, one might interpret the preference by states for the term “grave” crimes, as opposed to simply referring to offences with a maximum penalty of 5 years, as a preference for a notion that is independent of the particular penalties imposed by receiving States. There is an obvious disadvantage in simply relying on the penalty imposed by the receiving state to determining whether consular officials can be arrested and detained. Such an approach would leave the matter entirely in the hands of the receiving state. Also, where there are differences in penalties as between states, it would mean that consular officials in one state could be arrested and detained for a particular offence, where they might not be arrested for that offence in another state.

However, even if one suggest that grave crime should possess a universal meaning, the question is how one determines what is grave. Would visa fraud, the charge in this present case, amount to a grave offence? One test to apply could be whether the offence is such that the person poses a risk if not detained. That would not seem to be the case here.

Is Ms Khobragade entitled to Immunity from Prosecution as a Member of India’s Mission to the UN

It has been reported that the deputy consul-general has been moved by India to its permanent mission to the UN. Presumably, the reason is to avoid the prosecution by claiming immunity of representatives to the UN. However, it is not clear that this move will be sufficient to avoid prosecution. Article 105 of the UN Charter, the UN General Convention on Privileges and Immunities and UN Headquarters Agreement with the UN, all grant immunities to representatives of States to the UN.  Although Art. 105(2) of the Charter provides that representatives are to granted immunity it does not define that immunity only requiring such immunities as are necessary for the independent exercise of their functions. Section 11(a) of the General Convention on Privileges and Immunities provides that representatives of UN members are immune from arrest or detention but they are only immune from legal process “in respect of words spoken or written and all acts done by them in their capacity as representatives.” In other words, they are similar to consular officials in that they only possess immunity ratione materiae for acts carried out in their functions as representatives. This type of immunity would not assist Ms Khobragade.

However, the UN/US Headquarters Agreement provides a broader set of immunities. Under Section 15 of this Agreement a category of resident representatives are accorded the same sets of immunities as are accorded to diplomatic envoys, i.e not only immunity ratione materiae for official acts but immunity ratione personae from all criminal prosecutions. This immunity is granted to the principal resident representative, resident representatives with the rank of ambassador and to “such resident members of their staffs as may be agreed upon between the Secretary-General, the Government of the United States and the Government of the Member concerned.” Presumably, it is this third category that would be relevant for the Ms Khobragade. The problem here, from India’s perspective, is that full diplomatic immunity is only available to representatives to the UN (other than the principal representative) where there is there is trilateral agreement between the UN, the US government and the State concerned.

There has been a difference of view in the past as to whether there needs to be agreement by the US with respect to each individual member of the mission or whether agreement as to the categories and rank of person entitled to privileges and immunities suffices. The UN’s view has been that no individual agreement is required for full diplomatic immunities to be granted, while the US view is that it is required. It is not clear whether the US has agreed to Ms Khobragade being placed on the list.

The Legality of India’s Response

What then should be made of India’s response to the arrest of its consular official? Most of India’s acts are clearly acts of retorsion – unfriendly, but not unlawful acts. However, the most serious of India’s acts is the removal of the barricades in front of the US embassy in Delhi. This act may potentially be in breach of India’s obligation to protect diplomatic premises. . This obligation is contained in Article 22(2) of the Vienna Convention on Diplomatic Relations, which provides that:

“2.The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.”

India seems to be arguing that it is still providing adequate security to the US embassy. Perhaps the argument is that it was doing more for the US than it did for other diplomatic premises. However, India may be required to do more for the US than it does for the embassies of other states. The obligation is to take “appropriate steps to protect”. What is appropriate to protect one embassy may be inappropriate and inadequate for another. To the extent that the US embassy is a greater security risk India may be breaching its obligations by not taking steps it can take and which it had previously taken to protect those premises.

Assuming that India is not fulfilling its obligations under Article 22(2) of the VCDR, could India justify its acts as a response to a prior breach by the US of the VCCR? In short, can the measure be justified as a countermeasure (a reprisal which goes beyond a retorsion)? The short answer to this question is no. Article 50(2)(b) of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001) states that:

“A State taking countermeasures is not relieved from fulfilling its obligations … to respect the inviolability of diplomatic or consular agents, premises, archives and documents.”

This provision reflects the decision of the International Court of Justice  Tehran Hostages Case (1980) ICJ Rep 3 (see this recent post on Opinio Juris by Sondre Torp Helmersen on diplomatic immunities and countermeasures). Even assuming a breach by the US of the personal inviolability of the Indian consular official, India could not respond by violating obligations that are directed at guaranteeing the inviolability of diplomatic premises. Indeed, the ILC, in a footnote in its commentaries (ftnote 775) to the Articles on State Responsibility specifically lists Article 22 of the VCDR as one of the obligations which may not be transgressed as a countermeasure.

There is no indication that either party is considering judicial settlement of this dispute. The US has terminated its acceptance of the Optional Protocol to the VCCR that conferred jurisdiction on the ICJ over disputes relating to the VCCR. Both states remain parties to the Optional Protocol to the VCDR.

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23 Responses

  1. Edward Elliott

    I don’t think it’s quite right to say neither state is considering judicial settlement. The matter will be presumably receive attention in the US Court hearing the charges.

  2. Zacarias

    Is it legally arguable that moving the said consular officer to the UN Mission construes “an admission by India that as a consular official, she is not entitled to immunity from prosecution”?

  3. Prof Naresh Vats

    Immaterial Indian Counselor Devyani Khobragade did any thing , but US Government must learn to respect the Identity and Existence of Some nations’ Sovereignty. It is dictatorship and challenging the existence of supermacy of any country. It is unethical behaviour by US government. US government must admit the illtreatment done to Indian counselor and appolige Internationally.

  4. Dapo Akande Dapo Akande

    Edward,
    Thanks for the comment. You are right that the matter will be addressed by the US courts – as the US prosecutor has announced an intention to proceed with the case. However, what I meant at the end of the post was that it did not seem to be case that the states are considering referring the matter to an international judicial tribunal for settlement.

    Zacarias,
    My point is that India by moving her from her consular post to the position at the Indian Mission to the UN seems to think that this will change her legal position. There are two ways of looking at this. Either India itself thinks that the legal position with regard to immunity changes as a result of the move (in which case it would be an admission that there is no immunity from prosecution) or they think that the US will take the view that the legal position has changed.

  5. Prof Naresh Vats

    For Maintaining the International relations it obligatory for every Sovereign State to respect. Sovereign State do not respect the person but respect the Sovereignty of the State. Arresting the Counselor is damaging the Sovereignty and encroachment. Rather It it is duty of Every state for initiating legal action against the faulty official after withdrawal thereof. Therefore, Indian must withdraw its Counselor and on the other hand US must accept wrong for mistake.

  6. J

    Thanks for this informative piece. I also agree with your last comment in response to Prof. Vats.

    On another note, I was reporting for my news channel outside the US Embassy this past week. While the concrete barricades have been removed from public roads around the US Embassy, there is a considerable amount of local police and paramilitary deployment still in place at the Embassy. In my opinion, the removal of the barricades was more of a visual sign of expressing anger.

  7. AD

    Sir,

    1. Was handcuffing her illegal according to VCCR? It has been clarified by the state dept that she was indeed handcuffed in custody.
    2. It should have been standard practice for State Dept to inform the Indian embassy about the arrest. As you mention how arresting a consular may hamper important functions. They not only did not inform about the arrest, or provide her a chance to present herself to the authorities in a dignified manner, but just had to make the arrest in front of her daughter while dropping them at school.
    My Q is were they legally obligated to inform the Indian embassy about the arrest? Did they break any laws by not doing so and acting in such a manner?
    3. Strip/cavity searches are not standard procedures. Their own guidelines state that there must be reasonable suspicion about them hiding contraband/weapons or having fligh/suicide risk. But some courts have also ruled that authorities can do such searches without any reasonable suspicion. In any case it was not standard procedure. But can this point be argued legally? In saying she was not treated with the respect she deserves in view of her position?
    4. She NEVER signed any of the maid’s VISA docs. She has only shown (not submitted) an employment contract stating that maid will be paid $9.XX per hour at the American embassy in India. This is required while getting the VISA approved. So, I don’t think she can be charged with VISA fraud. At best for underpaying employee..

  8. Fred Kennedy

    First off, I largely agree with your legal analysis, but I find the fault committed not a grave one in a sense that case wouldn’t have been magnified. For the sake of friendly diplomatic interest, the case deserved an amicable settlement by both Indian and US authorities, instead of focusing on a legal solution. India’s retaliatory response by reducing its security to the US embassy is pretty natural.

  9. AD

    Also, in this piece G. Parthasrthy argues, according to VCCR diplomats can pay their staff as per the agreements in their respective countries:
    http://www.sunday-guardian.com/investigation/slap-contempt-notice-on-bharara

  10. Keshav Gupta

    Your assumption that India is not providing enough security to the US Embassy in Delhi is unfounded and speculative to say the least.

    The barriers which have been removed were not obligatory for the Indian Govt to provide, but a mere privilege for the US Embassy at the cost of inconvenience to the general population of New Delhi.

    There are various issues which need to be examined while commenting on the adequacy of security for an Embassy.

    Is there a provision in the convention or a case law which discusses how to determine the appropriate security for an embassy?
    Who decides the security risk to a particular embassy?
    What happens if the assessment in this regard is different between the host state and the embassy?

    These questions need to be analysed before presuming India’s actions as a possible breach of their obligations.

  11. Dapo Akande Dapo Akande

    Keshav,

    Many thanks for your comments. You seem to imply that I was asserting that India had acted in breach of its obligation to protect the US embassy. I did not assert or presume this to be the case. I was only discussing the possibility of a breach. I was careful to say that India may be breaching its obligations. Also my discussion of whether India could rely on countermeasures was only sketching out the arguments that could be made if one assumes that India was not fulfilling its obligations under Article 22(2) of the VCDR.

    You assert that the barriers are a mere privilege. The question is whether they are an appropriate and adequate measure for protecting the embassy. I do not know the answer to that question but the fact that they are an inconvenience and that there is a cost to these measures does not make them a mere privilege. The Vienna Convention requires adequate security and cost cannot be a factor for not providing it.

  12. AD

    The barriers were placed at the verbal request of some high dignitary from the US to the Delhi governor..

  13. Dear Mr. Akande

    I highly appreciate your attempt at making sense of this diplomatic impasse. I have a few contentions:-

    Now, assuming that a crime was committed, does it warrant a Diplomatic Passport holder’s public arrest without prior information followed by a humiliating strip-search? No jurisprudence, in all sanity, allows for a strip-search for visa fraud, if at all. Moreover, you seem to be so vehemently quoting laws in a prejudiced manner. If you had any understanding of the VCCR or of International Law you would have realised that Article 23 comes before Article 41 or 42 and it states,

    “Article 23

    PERSONS DECLARED NON GRATA

    1. The receiving State may at any time notify the sending State that a consular officer is persona non grata or that any other member of the consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person concerned or terminate his functions with the consular post.

    2. If the sending State refuses or fails within a reasonable time to carry out its obligations under paragraph 1 of this Article, the receiving State may, as the case may be, either withdraw the exequatur from the person concerned or cease to consider him as a member of the consular staff.

    3. A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.

    4. In the cases mentioned in paragraphs 1 and 3 of this Article, the receiving State is not obliged to give to the sending State reasons for its decision.”

    If the purpose of the United States were to ensure diplomatic courtesy while at the same time maintain the Rule of Law, it would have invoked the provisions of Article 23, which it obviously didn’t. In conclusion, the United States was working with mala fide intent, to humiliate and breach the sovereignty of a respectable state on the pretext of enforcement of domestic law. The irony of the situation is that you forget the principle of reciprocity and further go onto contemplate on a possible breach of obligation on India’s part. Kindly allow me to educate you, the breach of obligations enshrined under the VCCR as a text of International Law has occured on part of the United States.

  14. mo

    there are some rules that arenot written but they should be observed onder the cicumstances shch as friendly relationships between states. also such acts requier a test of reasonableness. the US act of arresting was nither friendly nor was it reasonable.

  15. Nancy Edward

    Thanks so much for this fruitful important article, that is explaining the rising row between the USA and India.
    I don’t think the USA has breached its obligations under the Vienna Convention on Consular Relations, and presuming it has violated the immunity entitled for the Indian Consular agent, the response of India should be based on the principle of reciprocity, like summoning the American Ambassador at India, not responding by removing the barricades located in front of the American Embassy at India, because by doing so, India has risked the security of the American Diplomatic mission.

  16. R. Singh

    Sometimes common sense and decency need to take precedence over narrow legal issues.

    The Lady Diplomat was ambushed, arrested in public,strip searched, cavity searched, and released on $ 250,000 bail in less than 6 hours.

    The maid was paid fully as per contract, she had two rooms to herself, A TV, a Metro pass, a paid for cell phone, extra money, and time off.

    She came voluntarily to the USA with her Employer. Ther is no coercion alleged.

    This public drama was preceded a few months earlier by the maid Ms Richards, demanding $ 10,000, and a new passport, and refusing to go back to India as per her contract. Her passport was a Diplomat official white passport.

    There have been other cases of maid and Embassy staff vanishing, or claiming immigration through the ‘ anti human trafficking’ T1 visa route.

    The matter is also sub judice in India, and the US authorities had been advised of the extortion attempt, and her passport had been cancelled.

    Questions about the US actions are arising.

    A human trafficking visa is not easily issued. As she had come and was living voluntarily, there may a civil case for underpayment of wages, but ‘ human trafficking???

    A questions also arises, as to how the US Embassy issued her husband and children a T1 visa, bought their tickets and ‘ evacuated out’ two days before the arrest of the Diplomat.

    Is this an immigration scam by the maid ? Such incidents are rising.

    The US issuing evacuating a similar visa

  17. BKC

    (i)The Indian consulate and residence were “home or Indian territory”. In this case, where would the legal jurisdiction be for a housekeeper, who was paid by the Govt of India ? Would it be USA or India.

    (ii) Under article 47 especially 47(b)) of the Vienna Consular rules, can one interpret that any work undertaken for the Govt of India from the residence by the housekeeper does not require a work permit and is not governed by US rules(especially as in this case, consular function depends on the domestic help caring for minor children at home or Indian territory). So will USA wage laws really apply? The housekeeper needs the A3 visa for entry and exit from USA.

  18. danykrish

    It is high time that the US diplomats stop voluntarily enjoying the privileges accorded to their diplomatic staff in many countries all over the world if they want to talk about equal rights etc.
    And when they relinquish those privileges, then they are morally in a legitimate posture to talk about it.
    Americans are not exceptional people as Mr Putin warned in a letter to New York Times in the Syrian crisis and to encourage them to think so as Obama did is a dangerous game!!!

  19. […] take a look here and here for an excellent outtake on the legal issues at EJIL: […]

  20. […] disputes relating to the VCCR. Both states remain parties to the Optional Protocol to the VCDR. EJIL: Talk! – Immunity of Consular Officials – The Arrest by the US of an Indian Deputy Cons… It just proves that you are a troll. I don't think a troll provides substantial and valid […]

  21. Anil Nauriya

    Dear friends
    Security barricades were not removed.
    A road at the back of the US Embassy,Nyaya Marg, was re-opened to traffic.
    A part of it had earlier been blocked by concrete barriers and closed to motor traffic.
    According to recent [AP] report [Jan 25, 2014] India and the US are now in talks about the extent of diplomatic immunities that they will or will not offer each other.
    While there were differing perceptions on the Devyani Khobragade issue, American media did not go into one major reason why the Maid Richard’s circumstances were seen differently in India. Throughout the period since mid-December 2013 to January 2014 US media did not report [while the Indian media did] that the Maid Richard’s family had a prior link with the US Embassy in New Delhi. This is one reason why the Maid Richard was not seen in India as being on par with the helpless and the exploited. Richard’s in-laws worked for US diplomat Geoffrey Pyatt who was posted in India as Minister Counselor from 2002 to 2007. They were then employed by Uzra Zeya, Political Counselor at the US embassy (2009-2011). Then with US diplomats Timothy and Joyce Haley. Finally, it seems, by US diplomats Wayne and Alicia May. Secondly, it seems that non-monetary benefits like housing and medical benefits given to Richard were not adequately recognised. It is a positive development now that the two countries are talking constructively.
    Earlier, I asked scribes Jason Burke, Pen Macrae, Geoff Dyer, Andrew Buncombe, Amy Kazmin, Nater Raymond, Karen DeYoung, Ellen Barry, Dean Nelson, Dan Roberts and Alistair Scrutton if the Maid Richard’s family’s prior link with the US embassy in New Delhi was ever reported in US / UK. These are the ladies and gentlemen who appear to have done much of the news coverage on the subject. So far there is no reply from them.

    Anil Nauriya,
    Advocate, Supreme Court of India
    Jan 30, 2014

  22. […] articles on the US- India diplomatic/ consular incident involving Devyani Khobragade here, here and here. One State can bring a claim against another State before the International Court of […]