The US State Department has clarified that in the event that the credentialing process of senior Indian diplomat Devyani Khobragade at the United Nations goes through successfully the full diplomatic immunity that she would receive would only apply to her from the day on which she was officially confirmed to her new post and not retroactively.

Ms. Khobragade, India’s Deputy Consul General in New York, was arrested, strip-searched then released on December 12, over criminal charges relating to visa fraud committed against Sangeeta Richard, an Indian national whom she employed at her Manhattan residence as a housekeeper and babysitter.

Under the 1963 Vienna Convention on consular relations consular immunity of the sort enjoyed by Ms. Khobragade only protected her from arrest for official and not personal acts.

The day after her arrest a State Department spokesperson said in response to a question from The Hindu that Ms. Khobragade was “liable to arrest pending trial pursuant to a felony arrest warrant,” and it was this type of warrant that had been issued against her by the US Department of Justice.

In this context, External Affairs Ministry had mulled over the possibility of moving Ms. Khobragade over to the United Nations, and effectively from an A-1 to a G-1 visa, which would grant her full diplomatic immunity, including from prosecution for personal acts.

While the Indian side indicated that she has from their perspective already been reassigned to the Permanent Mission of India to the UN, State Department Spokesperson Marie Harf said on Thursday, “We haven’t received an official request for re-accreditation.”

However Ms. Harf did explain that the final immunity status of Ms. Khobragade at the UN, assuming the transfer went through, would depend on what kind of position she was transferred to.

“But generally speaking, if there’s a change in immunity… because of a different diplomatic status, that immunity would start on the date it’s conferred,” she said.

Ms. Harf also added that there was a due process to be followed for such a transfer of role and immunity, saying “It goes to the UN Secretariat, comes to the U.S. State Department, everybody has to say yes… Then, if a different diplomatic status is conferred, it’s conferred at that date.”

In recent days there appeared to be a lack of clarity on the matter, and it is possible that the Indian side believes that if the State Department signs off on the grant of diplomatic immunity to Ms. Khobragade, she would be protected from past criminal charges going forward.

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