Retroactive immunity way out of diplomatic deadlock
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There could be a relatively easy way out of the current mess for both Devyani Khobragade and the US 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.
Diplomats and consulate officials are covered by two different international treaties, the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963. 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. Her lawyer Daniel Arshack told Reuters that the transfer "clothes her in diplomatic immunity, which provides immunity for acts before or after the appointment". In a text message, he cited a section of the State Department guide saying (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."
But the issue is more complicated than that. There are two questions here: Is Khobragade 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?
Under the Vienna Conventions and US law, it is up to the United States to decide whether to credential Khobragade as a full diplomat entitled to broad immunity.
the Abdulaziz case
By itself, India's designation is not sufficient. There's federal precedent on this point: In 1997, Gambia asserted that a special advisor to one of its missions in the US was immune as a diplomat from criminal bribery charges. Federal prosecutors said he hadn't been designated a diplomat by the State Department. US District Judge Michael Moore ruled that the Gambian official wasn't entitled to full immunity because he wasn't credentialed by the State Department. (The official pleaded guilty and there's no record of an appeal by Gambia.)
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