The Untouchable Diplomats: What Does Immunity Entail?

Photo's credits: Indian Express Devyani Khobragade, the Deputy Consul General of the Consulate General of India in New York City
Photo’s credits: Indian Express
Devyani Khobragade, the Deputy Consul General of the Consulate General of India in New York City

On December 11th, 2013, the then Deputy Consul General of India in New York, Devyani Khobragade, was arrested on charges of visa fraud, on the ground that she had misrepresented the pay to her household nanny, Ms. Richards, paying her significantly less than the minimum prescribed wage, and stating facts to the contrary on her visa papers. While facts about the exact circumstances of the arrest remained controversial for some time, it was undisputed that she had been arrested, subjected to a short period of detention, and searched.

The resulting diplomatic row ignited tempers across the Atlantic, strained diplomatic relations between India and the U.S.A and provoked a cascade of opinions on the internet, both by qualified journalists and everyone else who felt insulted by the way the Deputy Consul General was treated, or alternatively, by the way India chose to handle the whole affair.

A consistent thread through the conversation however, was a lack of clear understanding about what immunity Ms. Khobragade was actually entitled to, and whether or not such immunity was breached.

Prior to this incident, tensions between Russia and Netherlands sparked regarding the reciprocal treatment of diplomats in each other’s countries and predictably, outrage on the internet regarding the stance of both countries failed to take into account the basic issue at stake in the law of immunities. Two years earlier, the arrest of Dominic Strauss Khan fed gossip tabloids and occasionally more reliable journalism, all of whom speculated as to whether his immunity would enable him to escape the charges of sexual assault. Admittedly, Strauss Khan, as a high ranking official in an international organization, had privileges different in some aspects from diplomats of state, but the issue there again, related to the so called immunities he was entitled to.

The common denominator through these incidents is the following: regular newsreaders accept, often without question, the purpose or origin of these immunity, who they seek to protect and serve, and fail to question whether or not such privileges are serving to perpetuate the wrong doings of high ranking officials.

Just to clarify the issue, I will explain briefly what kinds of immunity exist for diplomats representing their state abroad. Personal immunities are granted to an official who represents the sovereignty and stature of their states. Based on the principle of sovereign equality of the states, this immunity is meant to ensure that those who ‘represent’ their state as a sovereign, and not merely safeguard it’s interests abroad, are never subjected to the legal and judicial systems of another country. The understanding of what it means to represent the sovereign status of a state is crucial, because it implies that those who are entitled to this immunity, carry out tasks that are more than merely administrative in nature, are symbolic of the decision making authority of their states, and wield such powers that follow from this status. This immunity therefore, is purely status based. It comes to an end when the person steps down from their office leaving them open for prosecution for acts committed while they were in office. Since this immunity is status based, it is not accorded to everyone within the service of their home state abroad. International Law recognizes only three categories of personalities that are definitely entitled to this immunity, while the question of who else may be entitled to personal immunity are decided on a case to case basis.  Thus, apart from the Head of State, Head of Government and the Foreign Minister, there cannot be said to be an international consensus on who else is entitled to invoke personal immunity, although since the judgment of the Arrest Warrant Case (Congo v. Belgium) by the ICJ, it can be argued that Defence Ministers of a State are also entitled to personal immunity by virtue of their position.

The other category is that of functional immunity. This immunity applies to acts of representatives of a State abroad, where said representative carries out duties and functions of the state. The rationale underlying this is to ensure that the foreign affairs of a state are conducted without hindrance, and representatives are protected from vexatious, frivolous and malicious prosecution. It is therefore not applicable to the person or to their position as such, but to their acts as being mandated and authorized by their Home State, and so these acts are attributable to the sending State and not to the person themselves. The granting of this immunity therefore, is based on a twofold rationale. If functional immunity is granted on the basis that acts of said representatives are dictated by the sending  state, arguably, any action of a State representative abroad that does not fall within the strict confines of this definition, would be subject to the judicial process of the receiving state. However, functional immunity also being granted to protect the international affairs of the state and its conduct, the procedural consequence of the protection granted to state functions is the immunity from prosecution and hence casts a wider net of protection than might be envisaged. This is the immunity that Consuls, and staff of missions abroad are entitled to. They are not perceived to be the embodiment of the foreign state themselves, but seen to be protecting its interests and therefore enjoy a limited protection. While functional immunity is always available since it is attached to the act, and not to the person or position, it is not available for private acts or offences and international crimes.

This distinction is crucial, and highlights the underlying rationale of this immunity, which is to preserve the status and respect accorded to another equal sovereign state. It therefore, applies to both personal and professional acts, and can be invoked in defence of both. Only breach of personal immunity therefore, entails a breach of the respect accorded to the sovereign nature of the state.

Ultimately, whether Devyani Khobragade, Strauss Khan, and a host of other diplomats were actually immune from prosecution at the time they committed the act accused of becomes a matter for individual determination. But the word ‘immunity’ should not be simultaneously read as synonymous with ‘respect for a sovereign state’ or ‘freedom from interference’. Such an understanding insults the purpose of the immunities, safeguards miscreants, and leads to its abuse.

Understanding the difference is crucial to evaluating criticism of a state’s behavior towards diplomatic staff from other countries. From a rights perspective, the granting of any immunity for a task that is not strictly connected to state affairs is problematic, since it sacrifices an individual’s right for the sake of an institution.

The incidences of diplomatic or consular stuff committing crimes of intent or of negligence are increasing, and the rhetoric of rendering officials immune from prosecution under the guise of protecting the interests of the State is wearing thin. If a crime is committed by a State representative, other than a circuitous argument about protection of a state’s international relations, there seems no reason for them to receive the kind of privileges they do now. States desiring to protect the conduct of their affairs from prosecution would do well to select their representatives more carefully, and subject them to appropriate sanctions if accused of criminal offences, instead of masking the issue with a cloak of immunity.

The proliferation of opinions on the internet has only served to cloud the issue, with patriotic countrymen getting unjustifiably indignant if officials are subject to the common norms and laws that regular people are subject to. Understanding the rationale of immunity and the interests it seeks to protect should open a wider debate about its relevance in the present climate of rights enforcement, and if such protection is actually deserved.

Linda Beatrice Louis

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