In the US and European countries, the initiative is passing from the foreign offices to prosecutors and courts. The Khobragade affair illustrates this.
The intense national outrage at the arrest and humiliation of Devyani Khobragade, India’s deputy consul general in New York, on December 12, is justified. There was no reason for the American authorities to treat her like an ordinary criminal, even if they believed she had breached US criminal laws and her actions were not covered by the immunity provisions of the Vienna Convention on Consular Relations (VCCR). By handcuffing, strip-searching and locking her up with criminals, the Americans clearly violated the provisions of the VCCR, which requires that consular officials be treated, at all times, with respect.
The cleverly worded statement of the New York prosecutor, Preet Bharara, does not deny the substance of the way Khobragade was treated after her arrest. Indeed, it does not deny that Khobragade was handcuffed; it merely says that she was not handcuffed at the time of her arrest. Worse, it implicitly casts doubts at the integrity of the Indian judicial process.
Among the many issues brought into focus by Khobragade’s arrest is the question of diplomatic and consular immunities and privileges. These are codified in the Vienna Convention on Diplomatic Relations (VCDR) and the VCCR. These conventions provide the formal basis for the conduct of diplomatic and consular intercourse among nations.
The VCDR provides complete immunity from any criminal action to accredited diplomats. It also ensures that embassy premises as well as homes of diplomats are secure, and cannot be entered by any person of the receiving country. The VCDR also protects the communications of diplomats, though it is well known that intelligence agencies try to clandestinely pry into them.
The VCCR provides all the immunities to consular officials that diplomats enjoy, except that it significantly excludes immunity against grave crimes. The reason for this vital difference lies in the fact that the representative status of the consular officials is circumscribed to commercial, economic, cultural and scientific work, apart from looking after the interests of their nationals and servicing passports and issuing visas.
Both diplomats and consular officials enjoy privileges and facilities that are sometimes the subject of misinformed comment. These privileges are almost exclusively in the area of freedom from personal taxation of the receiving state, though not of their own country. Diplomats and consular officers are allowed to import duty-free goods,