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The Vienna Convention that governs conduct of diplomats and the immunities they enjoy when serving in foreign countries does not offer blanket protection for violation of local laws.
What is more, officials engaged in consular duties (that is those duties relating to grant of visas, etc) enjoy a lower degree of immunity than embassy staff. In other words, merely having a diplomatic passport is not enough grounds to seek diplomatic immunity.
The Vienna Convention on Diplomatic Relations of 1961, and Vienna Convention on Consular Relations of 1963 are the two rules that govern diplomatic immunity. These were framed after World War II to formalize the customary rules and make their application more uniform.
The US State Department guide to diplomatic immunity, issued to US law enforcement staff, says even at its highest level, diplomatic immunity does not exempt diplomatic officers from the obligation of conforming with national and local laws and regulations. “Diplomatic immunity is not intended to serve as a license for persons to flout the law and purposely avoid liability for their actions. The purpose of these privileges and immunities is not to benefit individuals but to ensure the efficient and effective performance of their official missions on behalf of their governments”, a State Department handbook issued to law enforcement officials says.
It explains that Diplomatic agents enjoy the highest degree of privileges and immunities. They enjoy complete personal inviolability, which means that they may not be handcuffed (except in extraordinary circumstances), arrested, or detained; and neither their property (including vehicles) nor residences may be entered or searched. Diplomatic agents also enjoy complete immunity from the criminal jurisdiction of the host country’s courts and thus cannot be prosecuted no matter how serious the offense unless their immunity is waived by the sending state.
However, the Vienna Conventions rules make a distinction in the case of consular staff.
The US State Department handbook is crystal clear. It says: “Consular officers are those members of consular posts who are recognized by both the sending and the host country as fully authorized to perform the broad array of formal consular functions. They have only official acts or functional immunity in respect of both criminal and civil matters and their personal inviolability is quite limited. Consular officers may be arrested or detained pending trial only if the offense is a felony and that the arrest is made pursuant to a decision by a competent judicial authority (e.g., a warrant issued by an appropriate court). They can be prosecuted for misdemeanors, but remain at liberty pending trial or other disposition of charges. Property of consular officers is not inviolable. Consular officers are not obliged to provide evidence as witnesses in connection with matters involving their official duties, to produce official documents, or to provide expert witness testimony on the laws of the sending country. Absent a bilateral agreement, the family members of consular officers enjoy no personal inviolability and no jurisdictional immunity of any kind.
As indicated, official acts immunity pertains in numerous different circumstances. No law enforcement officer, State Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue which may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed”.
Devayani Khobragade was Acting Consul General in New York when she was arrested.
