Who, What, Why: Does Devyani Khobragade have diplomatic immunity?

By Tara McKelvey
BBC News

Image source, Press Trust of India

Deputy consul general Devyani Khobragade was arrested in New York on suspicion of visa fraud. Can she claim diplomatic immunity?

If you are a diplomat abroad, you can get away with murder.

The provision is spelt out in treaties. The 1961 Vienna Convention on Diplomatic Relations says diplomats are immune from prosecution in a host country if they break the law.

It does not matter if you are working or off-duty (though back home you can be prosecuted). If you are a consul, however, you are only shielded if you break the law while you are working.

For that reason, say experts, Ms Khobragade, as deputy consul general, could be prosecuted for the crimes she has been accused of. If you are a consul general, you have "consular immunity", rather than "diplomatic immunity".

Under the Vienna Convention on Consular Relations (1963), individuals are protected from a host country's laws only when the offences are related to their consular duties.

There are different rules for ambassadors because of their responsibilities. A consul general helps people from their home country with visas, trade and other issues. Meanwhile a diplomat works directly with people in the host country.

"If a state could arrest a diplomat, it would interfere with their ability to do their job," said Duncan Hollis, editor of the Oxford Guide to Treaties.

Hiring a maid

According to federal-court documents, Ms Khobragade claimed on a visa application that she would pay a maid, Sangeeta Richard, $4,500 (£2,746) a month. That is above the minimum required by labour laws.

In fact, said US investigators, two contracts were drawn up. One paid Ms Richard $573 per month.

Image source, Getty Images
Image caption,
Protesters at the US consulate in Hyderabad say Ms Khobragade was treated unfairly

Hiring a maid is not part of a deputy consul's job, as Mr Hollis said. Therefore a consul general could be prosecuted for offences relating to the hiring of domestic staff.

"Diplomats get immunity for everything - your maids, your murders," he said. "But if you're consul general and you're off the clock..."

Indian officials said they have moved Ms Khobragade to the United Nations. UN officials have to accept her credentials. In addition US state department officials have to sign off.

"By changing her status, Indian officials are signalling that they understand she would not be protected by consular immunity," said Mr Hollis.

Ms Khobragade is part of India's foreign service, said Shuja Nawaz, director of the South Asia Center at the Atlantic Council in Washington. She belongs to the mid-level part of the bureaucracy, not the top.

Yet the arrest of Ms Khobragade has become a sore point between the US and India. "It's a symbolic issue of the way she was treated," he said.

'Take a deep breath'

In some ways, said Mr Hollis, the reaction in India evoked the time when International Monetary Fund chief Dominique Strauss-Kahn was indicted on charges that included attempted rape. The case was dismissed in August 2011.

"In France they were outraged at the way he was treated - the perp walk," said Mr Hollis. "You see some of that in India. It's, 'hey, this is a deputy consul general. What are you doing treating her this way?'"

Mr Nawaz said the controversy over Ms Khobragade has become "a very big distraction" - and is hurting US-India relations. "Both sides need to take a deep breath and step back."

So far that has not happened.

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