The Dec. 12 arrest of Devyani Khobragade, a deputy consul general at India’s consulate in Manhattan, has precipitated quite a diplomatic brouhaha. Khobragade, who is accused of underpaying her nanny and falsifying documents to get the nanny into the United States, was handcuffed by diplomatic security staff, turned over to U.S. Marshals and strip-searched before being released on $250,000 bail. As anger escalated in India on Tuesday, with reports that Khobragade was forced to undergo a cavity search, Indian authorities retaliated by removing protective concrete barriers in front of the U.S. embassy in New Delhi. (The Marshals Service has said there was no cavity search.) On Wednesday, Secretary of State John Kerry expressed “regret” and “concern” to his Indian counterpart, and the White House told reporters that it is looking into Khobragade’s arrest “to ensure that all standard procedures were followed and that every opportunity for courtesy was extended.”
It’s a big mess, but there could be a relatively easy way out for both Khobragade and the State Department: retroactive diplomatic immunity. It’s a rare but not unprecedented State Department device to grant foreign officials full immunity for their actions even if they weren’t entitled to such broad protection when they committed the supposed misconduct.
As a consular official, Khobragade has only limited immunity, unlike high-level embassy personnel and their families. Diplomats and consulate officials are actually covered by two different international treaties, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963. And as the State Department explained in its guide for law enforcement on diplomatic and consular immunity, consulate personnel are protected just for actions connected to their official duties. If Khobragade had been an Indian diplomat, she could not have been arrested for mistreating household staff, but a deputy consul is not immune from those charges because they’re not related to consulate work.
After the arrest, India appointed Khobragade to its permanent United Nations mission, according to her lawyer, Daniel Arshack of Arshack, Hajek & Lehrman. Arshack told Reuters Wednesday that the transfer to a new post “clothes her in diplomatic immunity, which provides immunity for acts before or after the appointment.” In a text message to me, he cited a section of the State Department guide addressing termination of immunity, which says (in part): “Criminal immunity precludes the exercise of jurisdiction by the courts over an individual whether the incident occurred prior to or during the period in which such immunity exists.”
That’s helpful language for Arshack and Kohbragade, but from conversations with a couple of experts and a review of precedent on retroactive diplomatic immunity, I think the issue is more complicated than one sentence in a State Department guide. There are really two questions wrapped up in the Khobragade case: Is she entitled to full diplomatic immunity by dint of her appointment – by India – to a post at the UN? And if she is entitled to broad protection, is the immunity retroactive?