Diplomatic Immunity v. Consular Immunity: Understanding the Ramifications of Criminal Conduct & Arrest of Foreign Officials

When it comes to the criminal law, many people become obsessed with theoretical loopholes and “get out of jail free” cards. While prosecution of the guilty is a noble purpose of government, sometimes there are other, competing governmental interests (such as avoiding a Police State and governmental violations of an individual’s Constitutional rights) that are more compelling. One of those compelling issues is the concept of Diplomatic or Consular Immunity. This comes into play in New York more than almost anywhere else in the country.

New York is the largest city in the United States and one of the political capitals of the world, as home to the General Assembly of the United Nations. All 194 member and observer countries have permanent delegations to the United Nations. New York is also home to 116 nations’ consulates-general. What this means is that there are more foreign diplomats in New York City than almost anywhere else in the world. By some estimates there can be between 3,000 and 10,000 foreign dignitaries in New York at any one time. Not surprisingly, there are occasions that either the State or Federal government will charge a foreign dignitary with a serious crime.

If and when this happens, it is important to understand the law in this area both as a Federal criminal lawyer and as the accused. As a general matter, the concept of “diplomatic immunity” – or protection from the criminal law – dates back thousands of years to the times of ancient India, Greece and the Mongols, when nations agreed to protect messengers and diplomats from foreign countries so that their own messengers and diplomats would receive like treatment. This continued into modern times both here in the United States and abroad.

United States v. Khobragade

A recent case, U.S. v. Devyani Khobragade, 14 CR 008, NYLJ 1202647183769 (SDNY, March 12, 2014), is a perfect example of how Diplomatic Immunity works today. The procedural history of Khobragade is both interesting and telling:

From October 26, 2012 through January 8, 2014, Dr. Khobragade served as the Deputy Consul General for Political, Economic, Commercial and Women’s Affairs at the Consulate General of India in New York City.

On December 12, 2013, Dr. Devyani Khobragade was arrested and charged with visa fraud and lying to the Federal government in violation of Title 18, United States Code, Sections 1546 and 1001, respectively. January 9, 2014 was an active day in this case. First, a Grand Jury indicted Dr. Khobragade in the Southern District of New York on those charges. After the indictment was returned, at 5:47pm that same day, India appointed Dr. Khobragade as a Counselor at the Permanent Mission of India to the United States, thus conferring on her all the “privileges and immunities of a diplomatic envoy.” Shortly thereafter, the United States Department of State requested that the Indian government waive her diplomatic immunity. After India declined, Dr. Khobragade left the United States and returned to India. Then, through her counsel, she moved to dismiss the Indictment based upon her claim of diplomatic immunity.

The Court began to analyze the case by giving a brief procedural history and then delving into the applicable law.

Consular Immunity v. Diplomatic Immunity

The Court acknowledged two different, but similar concepts: Consular Immunity and Diplomatic Immunity. The Court noted that as a signatory to the Vienna Convention on Consular Relations (“VCCR”), the United States granted limited immunity to consular officers, such as Dr. Khobragade. The VCCR states that “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.” However, the VCCR holds that “Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.” In other words, a consular officer cannot be charged, tried or convicted for an crime that relates to their job as a consular officer, but they can be charged, tried or convicted for other “grave” (including the felonies charged here) crimes. This immunity can be waived only by the sending State. While the individual receives the benefit of the immunity, only the sending State has the power to enforce or withdraw the immunity.

The second type of immunity the court discussed was Diplomatic Immunity. The Vienna Convention on Diplomatic Relations (“VCDR”) relates to diplomatic agents such as ambassadors and diplomatic mission personnel. As a signatory, the United States grants those foreign agents a higher level of immunity than consular officers – Ambassadors and the like cannot be arrested, detained, prosecuted or sued for any act whatsoever, whether related to their official position or not and whether the charge crime is “grave” or not. As with Consular Immunity, while the individual receives the benefit of the immunity, only the sending State has the power to enforce or withdraw the immunity. The individual charged is powerless in this regard.

Interestingly, for non-employment related crimes, both types of immunity expire after the individual’s appointment has ended and has left the United States, or after a reasonable time for departure has passed.

Timing is Everything: When Does Diplomatic Immunity Begin

The Court then discussed how these two types of immunity applied to Dr. Khobragade’s situation. The defense argued that Dr. Khobragade had diplomatic immunity and therefore, the indictment must be dismissed. The Government countered that Dr. Khobragade did not have diplomatic immunity at the time of arrest and did not have immunity at the time of the motion (as she fled the country and lost immunity).

The Court noted that even if the Government was correct – that Dr. Khobragade did not have diplomatic immunity at arrest and currently — it noted that as of 5:47pm on January 9, 2014, while the indictment was pending — Dr. Khobragade did have full diplomatic immunity.

This distinction was critical. If the Court agreed with the Government, then Dr. Khobragade would have only had Consular Immunity – which in this case would not have helped her because the crimes charged did not related to her consular duties, and therefore, she did not have immunity from prosecution.

The Court, however, agreed with the defense. It noted that just because Dr. Khobragade lost her immunity when she left the country, there was no doubt that she had full Diplomatic Immunity while she was indicted. The Court also noted that Dr. Khobragade’s status at the time of her arrest was not determinative. The Court noted that in Abdulaziz v. Metropolitan Dade County, 741 F.2d at 1330, the Eleventh Circuit concluded that diplomatic immunity “serves as a defense to suits already commenced,” meaning that even when immunity is obtained during the pendency of a criminal case, the court must acknowledge the immunity and dismiss the action.

The Court did not rule whether or not the acts charged in the Indictment were “official acts” that would be protected by residual immunity. It noted, however, that if they were not performed in the exercise of her official functions, the United States could file new charges against Dr. Khobragade and attempt to extradite her back to the United States to face new charges.

What this all Means

Clearly, this criminal case became much more of a political chess match – The United States charged an Indian consular officer with federal crimes. The Indian government responded by making her a diplomat, thereby granting her greater immunity than she had before. The United States futilely requested that India waive Dr. Khobragade’s immunity. When India refused, the United States demanded that she be removed from the country as a diplomat. After she left, the Court ruled that these political maneuvers mandated that the case be dismissed, regardless of the guilt or innocence of the defendant.

To learn more about Federal crimes, Diplomatic Immunity and Consular Immunity, contact Saland Law PC or follow the links throughout this blog entry. A Federal criminal defense law firm located in lower Manhattan, the Federal criminal defense attorneys and former prosecutor at Saland Law PC represent clients throughout the metropolitan New York area.

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