What is diplomatic immunity?
Diplomatic immunity is essentially a lawful exemption given to the diplomats to secure a free and impervious accessibility of the diplomats, and also to ascertain insusceptibility against any litigation or impeachment under the purview of the legal system of the host country although the diplomats remain subject to deportation. Such agreements were arrived at the Vienna Convention on Diplomatic Relations in 1961 and the norms under diplomatic immunity are presently acknowledged as international laws. Diplomatic immunity assumes a special significance in maintaining international relationship between sovereign nations, especially under circumstances when such relations are under stress or even when the said nations are involved in a war.
When a new diplomat is accommodated in a nation as a representative of another nation, the individual representing the sovereignty of the nation i.e. the head of the state allocates certain appanages and exemptions to the said diplomat so that he can dispense his duties in an effective manner on the basis of the tacit understanding that such duties are undertaken on a quid pro quo basis. Earlier the definition of the realms of diplomatic immunity was fuzzy, but the Vienna Convention had explicitly defined the codes and arbitrations pertaining to diplomatic immunity, giving an international definition to the said immunity applicable worldwide.
The home country of a diplomat is empowered to withdraw such immunity and this usually happens when the official in question is found to be associated with a crime and/or witness to a crime and in special cases like espionage charges – cases completely unassociated with the diplomatic capacity of the said official. A diplomat is not empowered to nullify his diplomatic immunity except of course in the case of defection. The home country of a diplomat can waive the immunity in case of impeachment of the said official by the host government which is in the public interest of the host nation. An example of this is the prosecution of a Columbian diplomat in London for manslaughter after Columbia had withdrawn the immunities granted to the said diplomat. Otherwise, the power to prosecute an official holding diplomatic immunity lies entirely with the official’s home nation. All these mandates are in congruence with the codes of diplomatic immunity decided in the Vienna convention.
Privileges under diplomatic immunity:
Diplomatic immunity is often misinterpreted, courtesy to the cinematic liberties of Hollywood. The real privileges pertaining to diplomatic immunity are listed below.
1) Diplomatic immunity prohibits a search of a diplomatic premise by the legal authorities of the host country. Parallely diplomatic immunity also forecloses any forcible attempt of the legal authorities of interrogation of an individual under the umbrella of the said immunity
2) Diplomats are exempted from prosecution for petty crimes such as breaking a speed limit or theft as per the norms of the Vienna convention.
3) Other than criminal offences, diplomatic immunity also grants exoneration from civil lawsuits which may arise from an overdrawn bank account, distortions in contractual papers or refusal to pay loans or debts.
4) Officials under diplomatic immunity are completely exempted from tax procedures which include investments, services and other issues, which may come under the realm of government taxation.
Diplomatic immunity is, therefore, a special power which is often misused by the holders. But then again diplomatic immunity is an absolutely necessary international political issue that plays a pivotal role in enhancing the international relationship between two sovereign nations.
Misuse and misinterpretation of diplomatic immunity:
Because of many adverse factors, the norms of diplomatic immunity, as agreed in the Vienna Convention, are not strictly adhered to in many instances. An ideal example would be the Supreme Court case of early 2013, where the Italian Ambassador Daniel Mancini had been prohibited from leaving the country of India as a consequence of his failure to deliver the promise of bringing to justice two Italian Marines accused with the murder of a Keralian fisherman. Such actions of India were an open defiance of the Article 31 of the 1961 Vienna Convention on Diplomatic Relations which explicitly underlines the right of the diplomats as follows, “….shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.” Evidently, the vehement protest of the European diplomats as a retaliation to this incident was absolutely justified in the light of the outrageous violation of one of the basic norms of diplomatic immunity.
Another such incident was the arrest of the US Central Intelligence Agency (CIA) operative Raymond Davis in Lahore (2011) by the Pakistani Government after he had shot dead two armed men. USA was quite vocal in its protests citing that, such legal detainments were strictly against the diplomatic privileges enjoyed by the arrested individual. Internet records a long list of instances of misuse of diplomatic immunity ranging from drunken driving to rape. However, the right course of action in each of these cases was to let the accused go scot – free and all these cases have one common denominator – a host nation that refuses to accept a translation of diplomatic immunity for exception. However, such actions are in accordance with the accepted standards of conduct and a price tag that the two countries have mutually consented for achieving greater goals.
The humiliating arrest of Devyani Khobragade in the light of diplomatic immunity:
The recent arrest and the imprisonment of the Deputy Consul General to the Indian Embassy in New York, Dr. Devyani Khobragade has severely stressed the bilateral relations between India and US. While the US Justice Department had debated that the accusations against Dr. Khobragade comes under the premises of felony, a section under the US laws that demarcates between serious crimes and petty crimes/ misdemeanor, the fact remains that the realms of felony as defined by the US laws are pretty obscure. However, as argued by the US Justice Department, the alleged crimes of Dr. Khobragade can be categorized as a ‘grave crime’ as per the strictures of the Vienna Convention. US Justice Department seem to be oblivious of its own 2011 mandates regarding consular and diplomatic individuals which explicitly states that, “….generally precludes handcuffing, arrest or detention in any form”. There is, however, one admonition which states that, “……circumstances where public safety is in imminent danger or it is apparent that a grave crime may otherwise be committed”.
The alleged crimes of Dr. Khobragade, which includes a visa form fraud and ill treatment of her house maid may be true but it is beyond the wildest of imagination that Dr. Khobragade had posed any public threat. Under such circumstances the treatment of Dr. Khobragade was unjust and unprovoked from all angles. In the light of the new documents produced by India which reaffirmed Dr. Khobragade’s complete immunity towards any form of legal detainment or prosecution, the public and humiliating arrest of Devyani Khobragade by the US Justice Department was an egregious violation of the Vienna Convention norms. In fact, it was an open defiance of the Article 41 of the Vienna Convention on Consular Relations of 1963 norms which stipulates, “…..consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime….” It further adds that, “…..shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect”.
In reality Dr. Khobragade was publicly handcuffed by the US police, strip searched and thrown into a special detention cell with hookers awaiting production in court. India’s stand in this issue is absolutely justified, which is also a seemingly rare display of spine and it is the US Justice Department who are on the wrong foot this time. They must concede and apologize for their mistake of treating Devyani Khobragade like a common criminal, despite her diplomatic status.
Conclusion – why is diplomatic immunity necessary? :
Diplomacy is essential to maintain international relation between two nations and for that the diplomats play an indispensible role. Diplomatic immunity is, therefore, necessary for the smooth delivery of the duties of the diplomats, and to grant them impunity from coercion, unjust pressurization and marginalization by the host nation. Simply put, if one nation can castigate the diplomats of another nation, then the reverse also holds good! Under such circumstances, diplomats would become mere pawns and diplomacy will be impossible.