Media reports this week said that after India’s Deputy Consul General in New York, Devyani Khobragade (39), was arrested by U.S. law enforcement agency outside her daughter’s school in Manhattan last Thursday she was apparently “strip-searched” while in custody.
While none of the reports named the “sources” that provided this information, Daniel Arshack, attorney for Ms. Khobragade, said to The Hindu earlier that she had been “treated incredibly shabbily,” in what he described as a “public spectacle.”
Mr. Arshack however said on Monday that he did not have any comment on whether she was strip searched and could not provide any further details on the conditions of her detention.
India’s Ministry of External Affairs issued a “strong demarche” to the U.S. last week, both in New Delhi and from its Washington embassy, in which it said that it was “shocked and appalled at the manner in which she has been humiliated by the U.S. authorities.”
While no official response was available yet regarding the allegations of being “strip searched,” the reason that Ms. Khobragade was arrested as she exited her daughter’s school might have been linked to the conditions of the consular immunity that she enjoyed.
In response to questions from The Hindu the State Department clarified last week that Ms. Khobragade was covered only by consular and not diplomatic immunity, which essentially meant that she enjoyed immunity from the jurisdiction of U.S. courts “only with respect to acts performed in the exercise of consular functions” and under the Vienna Convention rules was “liable to arrest pending trial pursuant to a felony arrest warrant,” as was issued in this case.
Yet consular immunity under the Convention also implies that U.S. officials could not enter the Consular premises of India’s diplomatic post.
According to Article 31 of the 1963 Vienna Convention on Consular Relations, “The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post” except with the permission of the consular head at the mission.
However, the Convention is silent on whether the consular officer’s home may be entered, to serve an arrest warrant or otherwise. The U.S. interpretation of consular immunity however does allow police to enter the residence of consular officers, although in this case the authorities appear to have elected not to do so.
By elimination this would imply that Ms. Khobragade could only be arrested in transit during the course of her work or in the vicinity of her daughter’s school, assuming U.S. law enforcement knew of Ms. Khobragade’s routine entailing her daily commute to drop her child off there.
The fact that the latter was the chosen site of arrest raises the question of whether Ms. Khobragade was under surveillance at any time by U.S. authorities, even as they sought to identify the pattern of her movements from day to day.
While the Convention orders host nations to “permit and protect freedom of communication on the part of the consular post for all official purposes” – in principle banning the use of surveillance of official communications – there is no explicit ban on surveillance of consular personnel’s movements.