New York police arrest Indian consular official in apparent flagrant violation of international law (Updated December 19)

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Posted By: James Rowles December 17, 2013

UPATE (December 19, 2013)

There is more to this case than first appears.

See

Saurabh Shukla (New Delhi), “Devyani Khobragade case reveals how row over maid’s visa lead to this diplomatic incident,” India Today, December 19, 2013 (updated 09:40 IST).

Juan Cole, “India Flap derives from America’s Gulag Practices and Far-Right Supreme Court,” Informed Consent (blog), December 19, 2013.

Original article published on December 18, 2013

On December 17, the New York Times reported the following:

(An Indian) diplomat, Devyani Khobragade, the deputy consul general in New York, was arrested last Thursday and accused of submitting false documents to obtain a work visa for her housekeeper and paying the housekeeper far less than the minimum legal wage. Indian officials said that Ms. Khobragade was arrested and handcuffed on the street as she was leaving her daughter at school, and that she was kept in a holding cell with drug addicts before she was released on $250,000 bail.

By far the most troubling part for Indians are assertions that Ms. Khobragade, 39, was strip-searched after her arrest. Some Indian newspapers published reports claiming that she was subjected to repeated cavity searches. The Indian national security adviser, Shivshankar Menon, has called such treatment “despicable” and “barbaric.”

…

The United States Marshals Service, in a statement, confirmed that Ms. Khobragade had been strip-searched, following “the same search procedures as other U.S.M.S. arrestees held within the general prisoner population in the Southern District of New York.” It said she was “placed in the available and appropriate cell.”

The arrest has caused outrage and reprisals in India.

See

Gardiner Harris, “Outrage in India, and Retaliation, Over a Female Diplomat’s Arrest in New York,” New York Times, December 17, 2013.

Narayan Lakshman,”Detention procedures applicable to Khobragade, US clarifies,” December 18, 2013.

Both the arrest and the manner in which it was carried out would appear to be in flagrant violation of international law.

The 1963 Vienna Convention on Consular Relations establishes the following:

Article 41

PERSONAL INVIOLABILITY OF CONSULAR OFFICERS

1. 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.

2. Except in the case specified in paragraph 1 of this Article, consular officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3. 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 and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

It is hard to see how the term “grave crime” could be stretched to include the commission of fraud in assisting a house servant to secure a work permit and failing to pay the minimum wage to that house servant.

What were they thinking?

Maybe they hadn’t heard about the case against the Russian diplomats at the U.N.

In early December, 49 Russian diplomats from the Russian Mission to the United Nations were charged with Medicare fraud. However, they were not arrested due to the fact the authorities had been advised they had diplomatic immunity.

See Benjamin Weiser, “U.S. Says Diplomats Defrauded Medicaid,” New York Times, December 5, 2013.

Is this just sheer incompetence on the part of the Obama administration, or what?

It is clearly time for government officials in New York, Washington and elsewhere to be required to take a basic course in international law as a condition of their employment.

And to pass the final exam.

The Trenchant Observer

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About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.

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