Why diplomatic immunity matters

The Khobragade case is not about hurt national pride. There is a principle at stake here, and that makes New Delhi’s rare display of spine a welcome sight

December 28, 2013 12:32 am | Updated 12:32 am IST

He left the police station laughing, an hour after he had been detained on 15 counts of assault and rape, one afternoon in 1981. New York resident Carol Holmes had that day spotted the smartly dressed man who had beaten and raped her at her apartment, walking down a Manhattan street. The police first exulted that they had found a man they believed was responsible for multiple crimes. Then they realised they could do nothing about it. Manual Aryee, 19, was the son of a diplomat at Ghana’s Embassy, and therefore protected by diplomatic immunity.

“For all I know,” Ms. Holmes told People magazine, describing Mr. Aryee’s release, “he could have been going to a French restaurant for dinner.”

Indian diplomat Devyani Khobragade’s incarceration in New York has divided opinion sharply in India and abroad. To some, she is an emblem of hurt national pride; to others, a callous exploiter. Her former maid, Sangeeta Richard, has been cast as both a Green Card-seeking operator and as a victim of India’s notoriously arrogant élite. As in every similar conflict, the diplomat and the maid have a story to tell — and will do so in a court of law.

These questions, though important, are also irrelevant to the diplomatic issues involved. New Delhi’s retaliatory actions against U.S. diplomats in India — a rare display of spine — are a necessary defence of a critical principle in relations between nation-states.

Fraying Conventions For years now, the Vienna Conventions on diplomatic immunity have been fraying at the edges — largely driven by public outrage over cases like that of Mr. Aryee. It was not too long ago that the shoe was on India’s foot. Earlier this year, the Supreme Court restrained Italian Ambassador Daniele Mancini from leaving India, saying he had failed to honour commitments that two Italian marines charged with the murder of fishermen off Kerala would stand trial.

India’s actions were a flat-out violation of Article 31 of the 1961 Vienna Convention on Diplomatic Relations which says diplomats “shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.” European diplomats protested, rightly, against what they argued was an egregious violation of the Vienna Conventions.

There have been a string of similar cases across the world. In 2011, notably, authorities in Pakistan held Central Intelligence Agency contractor Raymond Davis after he shot dead two armed men in Lahore. The U.S. insisted his rights as a diplomat were violated by his arrest.

Internet searches reveal a long list of abuses of diplomatic immunity: murder, rape, drunk-driving incidents. Each of these, on the face of it, involved unacceptable crimes. In each case, letting the perpetrator remain free was the right thing to do.

These cases had one thing in common: a host country determined that immunity should not give the perpetrator impunity. This is morally true — but it is a price nations have agreed to pay for a larger gain. The alternative is to make envoys vulnerable to wrongful pressure and coercion, which in turn would make diplomacy impossible.

New documents released by India show Dr. Khobragade had complete immunity from prosecution of arrest, the consequence of her accreditation to the United Nations on temporary duty. However, the U.S. State Department could reasonably argue it was unaware of this — even India’s External Affairs Ministry only awoke to this circumstance many days after her arrest.

Even if Dr. Khobragade was only India’s acting consul-general, she would have still have enjoyed substantial protections against arrest under the 1963 Vienna Convention on Consular Relations. Article 41 says “consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime ….” It also stipulates that they “shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.”

This is not equivocal language.

U.S. law It has been argued that Dr. Khobragade’s alleged crime was a felony under U.S. law, a category that the country uses to distinguish serious offences from misdemeanours. Thus, the argument goes, her alleged offence met the “grave crimes” stipulation of the Convention.

Felonies, though, encompass a range of crimes. In some U.S. jurisdictions, they even include the theft of over a certain amount of money. It cannot be reasonably argued that such offences meet the Convention-mandated criteria of a “grave crime.” Nor can individual states be allowed to assign arbitrary assignations of gravity, for obvious reasons.

The State Department’s own 2011 guidelines on immunity note that the immunity of consular and diplomatic personnel “generally precludes handcuffing, arrest or detention in any form.” It adds just one caveat: “circumstances where public safety is in imminent danger, or it is apparent that a grave crime may otherwise be committed.”

Dr. Khobragade might indeed have lied on a visa form to bring a domestic help from India on less than the legally-mandated wage. She might have treated her domestic help badly. It is nobody’s case, though, that India’s acting consul-general in New York was about to torture or kill.

The correct procedure was demonstrated a few days ago, after a Mumbai resident brought molestation charges against Mohammed Abdulaziz Al Khaja, Bahrain’s Consul-General. The Mumbai Police initiated proceedings against Mr. Khaja, but his immunity has ensured he is not arrested.

It is probably true, as the New York authorities have claimed, that Dr. Khobragade was treated just as any U.S. citizen accused of a similar crime would have been treated — and that is precisely the problem.

Why immunity is important There are several theories underpinning the notion of diplomatic immunity — among them, the now-outmoded idea that an ambassador represents the body of a foreign king; the notion that an embassy is in fact foreign territory; the idea that such immunities are necessary for the smooth conduct of foreign relations. Behind these theories lies one simple truth: if one nation punishes diplomats for good reasons or bad, there is nothing to stop the other nation from doing the same. For all practical purposes, diplomats would be at risk of becoming hostages.

Understanding this, nation-states have let diplomats literally get away with murder. In 1984, Libyan embassy staffer Salah Ameri allegedly opened fire at protesters, killing British police officer Yvonne Fletcher. Britain severed diplomatic relations, after which the accused embassy staff member left the country.

In a thoughtful analysis published in 2000, legal scholar Dror Ben-Asher noted that “the occasional abuse of the diplomatic immunity rules is largely offset by the continuing need for them.” He added: “The actual number and percentage of abuses affecting fundamental human rights is relatively small, [and] therefore a complete wholesale rewriting of the rules or even a too-radical reform, is undesirable.”

Put simply, arresting a diplomat in violation of the Convention signals contempt for international norms — and with it, signals that one nation-state believes it can violate the rights it accords another.

Long before modern diplomatic conventions began to evolve in 17th-century Europe, great civilisations understood the importance of ensuring that diplomatic envoys were inviolate. The ill-treatment of Raja Raja Chola’s envoys sparked the Kandalur War in 994 CE. Genghis Khan’s armies insisted on the inviolability of the lives of their ambassadors — and razed entire cities to defend the principle. The Mongolian conquest of the Khwarezmid empire in 1219 began after one of Genghis Khan’s ambassadors was beheaded.

New Delhi’s more civilised expression of wrath, notably by denying U.S. diplomats unilateral courtesies, is legitimate. There is plenty of reason to believe the State Department’s casual consideration of Dr. Khobragade’s privileges was grounded in an institutional unconcern for Indian reactions. Earlier this month, New York authorities were prevented from arresting 49 Russian consular and diplomatic officials and their spouses, charged with embezzling millions. It is probable that the near-certainty of Russian retaliation helped focus the State Department’s mind.

It is also important, though, that New Delhi upholds the Convention — not subvert it. New Delhi’s effort to shield Dr. Khobragade from prosecution by giving her full diplomatic immunity is fundamentally misplaced; the Convention gives Dr. Khobragade no such immunity. It is also important for the government to initiate a credible investigation into claims by Dr. Khobragade’s domestic help that efforts were made to intimidate her family in India.

The larger challenge, though, is before the U.S.: it has the choice to do the right thing and admit wrongdoing. To remain recalcitrant, as it has been, is to contribute to the slow unravelling of an international convention that keeps its own diplomats safe, every single day.


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