Kerry 'regrets' treatment of Indian diplomat, US attorney defends actions

Secretary of State John Kerry called Indian National Security Adviser Shivshankar Menon on Wednesday and voiced his regret about the case of an Indian diplomat strip-searched after she was arrested last week for visa fraud.

Devyani Khobragade, a deputy consul general in New York, was arrested last week for allegedly paying a domestic worker a fraction of the minimum wage and for lying about the employee's salary in a visa application.

The arrest sparked a fierce backlash in India when it emerged she was strip-searched.

On Wednesday, Khobragade was moved to the U.N. permanent mission in New York, which entitles her to full diplomatic immunity. Khobragade's attorney said that the move would provide her with retroactive immunity. 

But Mark Zaid, who represented the family of a teenage girl killed in a drunk driving accident by a high-ranking Georgian diplomat, told Al Jazeera that the State Department would have to approve the re-assignment.

Zaid told Al Jazeera that complaints of mistreatment by personnel hired by foreign officers is nothing new, but how the police allegedly treated Khobragade violated diplomatic norms. "Regardless of policy, it is bad form to arrest a diplomat for a non-violent crime when alternative means for handling the affair exist," he said. "You can go through internal channels to investigate and resolve the issue."

Meanwhile U.S. Southern District of New York Attorney Preet Bharara, issued a statement Wednesday defending the actions taken against the diplomat. "There has been much misinformation and factual inaccuracy in the reporting on the charges against Devyani Khobragade," it read.

"One wonders whether any government would not take action regarding false documents being submitted to it in order to bring immigrants into the country,” Bharara said. “And one wonders why there is so much outrage about the alleged treatment of the Indian national accused of perpetrating these acts, but precious little outrage about the alleged treatment of the Indian victim and her spouse?”

The statement said that contrary to reports, Khobragade was not arrested in front of her children, nor handcuffed at all, with officers even permitting her to make calls. "Because it was cold outside, the agents let her make those calls from their car and even brought her coffee and offered to get her food."

While acknowledging that she was subjected to a search, Bharara said that this is standard practice for every defendant, "rich or poor, American or not, in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself.”

What is diplomatic immunity? 

According to the State Department's guide to law enforcement on diplomatic and consular immunity, certain foreign government officials are not subject to the host country's legal system for both their official and, to a large extent, their personal activities.

There are different categories of foreign officials, such as diplomatic agents and consular officers, each possessing varying levels of immunity. 

The basic rules that govern diplomatic immunity are embodied in international treaties that the U.S. is party to, the most notable being the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.

Why does diplomatic immunity exist? 

The basis for diplomatic immunity, according to the State Department guide, is to provide foreign representatives with the ability to carry out their duties effectively. In some cases, that is possible only if they are provided a certain degree of insulation from the application of standard law enforcement practices of the host country. 

The U.S. benefits because it protects American diplomats stationed in countries with judicial systems that are different than our own. 

What does diplomatic immunity consist of?

There are primarily three categories of persons entitled to privileges and immunities: diplomatic agents, consular officers and members of international organizations.

Diplomatic agents, posted in embassies located in the host country's capital, are the main communication link between the sending and host countries. According to the guide, they enjoy the highest degree of privileges and immunities including complete personal inviolability, which means that they may not be handcuffed (absent extraordinary circumstances), arrested or detained. Nor can their property and residence be entered or searched. 

Diplomatic agents also hold complete immunity from the criminal jurisdiction of the host country’s courts and cannot be prosecuted unless their immunity is waived by the sending state.

They also enjoy immunity from civil suit except in very limited circumstances. Family members of diplomatic agents hold the same privileges and immunities.

Consular officers, such as Khobragade, are posted in consulates located in the host country's major cities but not the capital.

They handle more minor diplomatic issues such as issuing visas, promoting trade relationships and attending to their own nationals in the host country.

Consular personnel enjoy more limited immunity. They possess only functional immunity. That means if the actions complained of arose in connection with the performance of official acts, they are immune from liability, and only a court can determine whether a given set of circumstances constitutes an official act.

Consular officers may be arrested or detained only if the offense is a felony, and only after a warrant has been issued by a judicial authority. 

Unlike diplomatic agents, the property of consular officers is not inviolable. 

Absent a bilateral agreement, the family members of consular officers enjoy no personal inviolability and no immunity of any kind.

What if a diplomat commits a serious offense? 

In circumstances where public safety is in imminent danger, law enforcement is authorized to prevent the activity. The State Department may request a waiver of immunity from the sender state. If a waiver is refused, the U.S. can expel the alleged offender, and the State Department will request that U.S. law enforcement issue a warrant for their arrest and that their name be entered into the FBI's National Crime Information Center database.