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

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.