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The consul and the diplomat

By Reginald Dumas

Devyani Khobragade, then a Deputy Consul-General of India in New York, was recently arrested by US State Department security personnel, handed over to US marshals, jailed and strip-searched. (She is said to have undergone a body cavity search as well, though this is denied by the US.) She was then released on bail after surrendering her passport (which belongs to the government of India). Her alleged sin? That she committed visa fraud by lying about the salary she was paying her housekeeper from India.
The media have described Ms Khobragade as a diplomat. In fact, at the time of her arrest she was not. There is quite a difference between diplomatic officers and consular officers (the term “consular officers” includes Consuls-General and their deputies, etc.). The former have privileges and immunities the latter enjoy only in part. Satow’s Diplomatic Practice states that while career consular officers (Ms Khobragade appears to be one) “are given broadly the same privileges as are given to a diplomatic agent under the Vienna Diplomatic Convention”, their immunities are “much more limited...”
The roles, functions, etc. of diplomat and consul are set out in two separate international agreements: the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. Let me give one example of the differences between the status of diplomat and that of consul.
Article 29 of the 1961 Diplomatic Convention says that “(the) person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention...” By contrast, Article 41 of the 1963 Consular Convention says this: “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.” In other words, a diplomat accredited to another country cannot legally be arrested or detained by that country, whereas, depending on the circumstances, a consul can be.
Ms Khobragade has now been transferred by her government to its Permanent Mission to the United Nations, presumably to invest her with diplomatic status. I don’t know if that move can have retroactive effect. The State Department insists that she enjoys only consular immunity with respect to acts performed in the exercise of her consular functions, and that those are the functions she had when arrested. The Department may be technically correct, but there are other aspects of the 1963 Convention on which it has been silent.
One of those aspects is quoted above: if a consular officer is to be arrested or detained pending trial, this must be as a result of “a grave crime and pursuant to a decision by the competent judicial authority.” (My emphasis.) Ms Khobragade is out on bail, which means she has been charged and is awaiting trial. She has not been re-arrested or detained, though her new diplomatic status might make US officials pause. But how is “grave crime” defined? Assuming, but not admitting, that she gave false information on her housekeeper’s emoluments, does US law place this at the same level as, say, a Madoff Ponzi scheme? In any case, could a re-arrest or detention suggest guilt before she even appears in court? (If she ever appears.)
Article 41 of the 1963 Convention also says that, except for the two provisos mentioned in my preceding paragraph, “consular officers 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.” (My emphasis.) Clearly, that facility was not extended to Ms Khobragade. Why?
“If criminal proceedings,” Article 41 further reads, “are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position...”
I assume that criminal proceedings against Ms Khobragade have in fact begun, even if she hasn’t yet appeared before a judge. How was “respect” shown to her “by reason of (her) official position”? In strip-searching her (and, we are told, subjecting her to the humiliation of body cavity exploration)? If her “crime” (grave or not, and not yet proved before the “competent authorities”) was not telling the truth about her household help, what was the relevance of these searches? To find what, precisely? The money she is said not to have been paying her maid? Is this serious? Or will we hear that the searches were carried out before proceedings were instituted, and that, in the mindboggling bureaucratese of US officialdom, “standard arrestee intake procedures” were applied at that time? Standard? For a Deputy Consul-General?
It strikes me that the “grave crime” committed was really that of overzealousness by the US personnel involved. Having served in Washington, I know how concerned the US government is about the treatment by foreign representatives of their employees, especially their domestic staff. It is a valid concern: there have been many cases, with some of which I was personally familiar, of exploitation and abuse, including sexual abuse.
But when agents of the very US government arrest someone they say has fallen into error—and arrest her in broad daylight outside her daughter’s school—then abuse her by stripping her (and perhaps performing more intimate actions as well), and throwing her without judicial sanction into a cell with others, I can’t help seeing such behaviour as the height (or depth, I’m not sure which) of hypocritical irony gone berserk. This approach, especially given what I consider the clear violation of the 1963 Convention to which the US is a party, is emphatically not the way to conduct foreign policy.
To no one’s surprise, the Indian government has responded angrily and taken retaliatory measures. The stand-off will end, of course; stand-offs generally do. But a sour taste will remain. And the whole thing could have been handled so much more professionally.
* Reginald Dumas is a former ambassador and a former Head of the T&T Public Service
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