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The limitations of diplomatic immunity

In this September 30, 2014 photo, Prime Minister Narendra Modi speaks during his meeting with U.S. President Barack Obama in the Oval Office of the White House in Washington. The lawsuit against Mr. Modi argues that victims of the communal violence in Gujarat were entitled to compensatory, punitive and exemplary damages.

In this September 30, 2014 photo, Prime Minister Narendra Modi speaks during his meeting with U.S. President Barack Obama in the Oval Office of the White House in Washington. The lawsuit against Mr. Modi argues that victims of the communal violence in Gujarat were entitled to compensatory, punitive and exemplary damages.   | Photo Credit: LARRY DOWNING

The U.S.-based lawsuit filed against Prime Minister Narendra Modi is progressing

A federal court in New York has signalled its intention to take forward a lawsuit filed in the U.S. against Indian Prime Minister Narendra Modi by issuing an order on October 21 calling on the plaintiffs to explain why Mr. Modi was not immune from prosecution for allegedly presiding over the 2002 anti-Muslim pogrom that took place in Gujarat.

U.S. Judge Analisa Torres asked the American Justice Center (AJC), a non-profit human rights organisation, to respond to a “suggestion of immunity,” submitted to the Federal District Court for the Southern District of New York on October 19 by U.S. Attorney Preet Bharara. Mr. Bharara was prompted to do so by a September 30 letter from the State Department, which argued that “a prompt dismissal of the proceedings,” could have “significant policy implications.”

The lawsuit against Mr. Modi filed by the AJC argues that under the Alien Tort statutes the plaintiffs including “Asif,” “Jane Doe,” and multiple “John Doe’s,” said to be victims of the communal violence in Gujarat, were entitled to compensatory, punitive and exemplary damages and a declaration that Mr. Modi’s alleged conduct “amounted to ‘Genocide’” according to court documents.

Last month, even as Mr. Modi was attending numerous meetings with business and community leaders in New York City and then a summit meeting with U.S. President Barack Obama, the District Court issued a summons against the Prime Minister to answer the charges made against him.

Despite the AJC offering $10,000 for the serving of the summons to Mr. Modi, this step was apparently not achieved while the Prime Minister was in the U.S., and at that time Ministry of External Affairs spokesperson Syed Akbaruddin told The Hindu that the Indian leader was “ring-fenced.”

Senior U.S. administration officials were quick to clarify that the summons could not be delivered to him while he was in the U.S. and he was immune from prosecution at this time because “as a general legal principle, sitting heads of government enjoy immunity from suits in American courts. Sitting heads of government also enjoy personal inviolability while in the U.S., which means they cannot be personally handed or delivered papers… to begin the process of a lawsuit.”

The service of the summons, however, may depend on whether the U.S. court has subject-matter jurisdiction for the complaint, and it is possible that if the alleged violations of certain laws took place at a time before the defendant in the case became a head of government, then the defendant may neither be personally inviolable nor immune.

Notably, the State Department letter on the “suggestion of immunity” for Mr. Modi does not comment on the merits of the case against the Prime Minister, and only emphasises his immunity from prosecution under U.S. common law principles and customary international law, that too only “while in office.”

The AJC has since argued that Mr. Bharara’s filing was “not binding on the court, [as] the human rights violations committed by Mr. Modi before becoming Prime Minister and as Chief Minister of Gujarat are not immune.” AJC legal adviser Gurpatwant Singh Pannun added that the federal court therefore had jurisdiction to hold Mr. Modi accountable under the Alien Tort Claims Act and Torture Victims Protection Act.

A question that may be critical to the unravelling of the legal web around the immunity issue is the U.S. government’s view on whether immunity enjoyed at the present time by a foreign dignitary is retroactive, or applies to past acts as well, when that dignitary was not a head of government.

An earlier diplomatic row

In the past, the U.S. State Department has already spelt out its view on this matter in another high-profile case of a legal dispute concerning India — the criminal charges filed against Devyani Khobragade, former Indian Deputy Consul General who was arrested on the streets of New York last December and strip-searched in custody, sparking off a massive diplomatic row between the two countries. In that case, days after Ms Khobragade’s arrest, Department spokesperson Marie Harf said that in the event that the senior Indian diplomat was successfully reassigned to the United Nations and thus given full diplomatic immunity from prosecution, such immunity would only apply to her from the day on which she was officially confirmed to her new post and not retroactively.

“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,” Ms. Harf said on the record at the time.

Yet if that is in fact what U.S. law dictates, or that is what the current administration’s position is, then it may find little room for manoeuvre to argue for personal inviolability and immunity from subsequent prosecution for Mr. Modi for a complaint based on acts that he was said to have committed more than a decade before he became India’s Prime Minister.

The plaintiffs in the case appear not to be unaware of this point, and this week Mr. Pannun said, “The selective and arbitrary approach of the U.S. Department of Justice on the issue of immunity to foreign leaders will be the key factor in challenging the immunity to PM Modi.”

narayan@thehindu.co.in

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Printable version | May 26, 2020 10:50:29 AM | https://www.thehindu.com/opinion/op-ed/the-limitations-of-diplomatic-immunity/article6530851.ece

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