Diplomatic Row: Indian Diplomat's Arrest and Treatment Spark Outrage

News is quickly spreading of a female Indian diplomat's arrest, subsequent treatment, and the ensuing diplomatic fallout.

The diplomat in question is Devyani Khobragade, who up until recently was India's Deputy Consulate General in New York for Political, Economic, Commercial, and Women's Affairs.  According to the criminal complaint, in November 2012, Khobragade hired an Indian woman as her maid and nanny.  The complaint further alleges that Khobragade and the maid entered into an agreement for the maid to receive approximately 30,000 rupees per month for her services.  The complaint then alleges that Khobragade lied on the visa application for the maid and had the maid lie about her anticipated salary -- all due to the fact that the 30,000 rupee/month salary would not comply with New York's minimum wage laws.

Fast forward to last week, when Khobragade was arrested as she was dropping her daughter off at school.  What happened next has sparked outrage in India.  In Khobragade's own words:

Although I must admit that I broke down many times as the indignities of repeated handcuffing, stripping and cavity searches, swabbing, in a holdup with common criminals and drug addicts were all being imposed upon me despite my incessant assertions of immunity, I got the strength to regain composure and remain dignified thinking that I must represent all of my colleagues and my country with confidence and pride.

(BBC).  After Khobragade's bail was set at $250,000 and posted, India announced it was transferring Khobragade to its UN mission, where she would be granted full diplomatic immunity.  In the meantime, the Indian government responded to the perceived slight by refusing to meet a U.S. congressional delegation and removing security barricades outside the U.S. embassy in New Delhi.  Those road barriers were apparently an extra safety barrier specifically for the U.S. embassy -- in other words, in the spirit of diplomacy, India was giving the U.S. embassy favorable treatment.  Protesters in India also burned posters of U.S. flags and President Obama during a demonstration in Bhopal, India.

Khobragade intends to challenge the arrest on the grounds of diplomatic immunity.  The Vienna Convention on Consular Relations, or "VCCR," establishes the grounds for immunity.  Specifically, Article 43 notes 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."  Khobragade's alleged criminal activities appear to fall outside the scope of those official duties; accordingly, this defense may not carry much weight.

A closer call than the full consular immunity is whether Khobragade should be subject to arrest and detention pending trial.  Article 41(1) states: "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."  The treaty does not go on to define a "grave crime," which could lead to a claim that the crime itself was not sufficiently "grave" to warrant Khobragade's arrest and detention.

Meanwhile, the actual treatment itself -- aside from its political shortsightedness -- may violate the VCCR.  Article 40 states: "The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity."  Article 41(3) notes: "If criminal proceedings 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."

The U.S. Marshals Service ("USMS") confirmed that Khobragade's treatment -- which included a strip/cavity search -- followed "standard arrestee intake procedures."  USMS also confirmed that Khobragade was placed in "general population" in accordance with how prisoners are typically handled.  Even if such treatment conforms to "standard arrestee intake procedures," it is doubtful that it conforms to the language of the VCCR requiring states to "prevent any attack on [one's] person, freedom or dignity."

In short, U.S. officials may have treated Khobragade similar to any person accused of a crime.  In doing so, however, the U.S. likely violated its treaty obligation that mandates a different standard of treatment for foreign diplomats.  The consequences of violating that treaty obligation will be political, as opposed to legal (legal action for VCCR violations is possible in more egregious violations -- such as failure to notify a country that its citizen was arrested --  even though that is itself a hotly contested issue).  Such consequences are already starting to take place, such as the snub of the U.S. congressional delegation and the decision to lift barricades outside the U.S. embassy.  Those barricades, it will be remembered, were placed near the embassy as additional security to specifically benefit the U.S. embassy.  If the U.S. hopes to continue receiving such courtesies, it may have to learn how to handle the arrest of high-ranking foreign diplomats in a more...diplomatic manner.  Of course, what may really get the United States' attention is India placing a freeze on the import of duty-free alcohol for U.S. diplomatic staff.

Update 12/19/13, 11:41am: An excellent analysis of whether Khobragade could be granted retroactive immunity may be found here.

Italian Marines Case: Rainbow Warrior Redux?

Last year, Italian marines on board a ship were involved in a shooting that resulted in the deaths of two Indian fisherman in international waters off the coast of India.  Two of the Italians were ultimately charged and, recently, the Indian Supreme Court ruled that India had jurisdiction to try the two soldiers despite the incident having taken place in international waters.  That jurisdiction, which Italy had challenged, is relatively uncomplicated with respect to general principles of international law; according to the passive nationality principle, a state has jurisdiction over a matter in which its citizens are harmed by a crime.

What's making headlines this week is that the two Italians who have been charged, permitted by Indian authorities to return to Italy for the recent elections, might not be coming back.  The Indian Supreme Court declared yesterday that the Italian ambassador, Daniele Mancini, is not permitted to leave the country without its permission.  India's Union Home Ministry upped the ante by alerting all airports to not permit the ambassador to leave.  In addition to being a blatant breach of diplomatic principles enshrined by the Vienna Convention on Consular Relations (Article 9 specifies the procedures for a state refusing to accept the protected diplomatic status of a diplomat; in short, the "receiving state" (India) must give the other state an opportunity to recall the diplomat to the home state), the activity is sure to heighten tensions between the two countries.

Just as a final note: the sub-headline of this article was "Rainbow Warrior Redux?" because of some similarites to an international incident, the sinking of the Rainbow Warrior ship and subsequent international incident over the trial of French spies who were able to largely circumvent their sentences.

*Update: The issue of competing jurisdictional claims by Italy and India is an interesting one.  Italy could certainly prosecute the marines on the nationality principle.  India could claim either passive nationality principle or the territorial doctrine based on the fact that the effects were felt on the Indian ship (an extension of India's territorial sovereignty).  While we pointed out the similarity of recent events to the Rainbow Warrior affair, the underlying principles of competing sovereignty invoke another famous international law incident -- the S.S. Lotus and subsequent 1927 decision in the Permanent Court of International Justice.  The basic rule of international law is that either party may exercise jurisdiction; having the marines around obviously makes it easier to hold a trial and execute any sentence.  An excellent analysis of the jurisdictional claims pursuant to Lotus and subsequent treaties may be found over at Opinio Juris.