Achieving the coexistence of accountability and immunity: the prosecution of Devyani Khobragade and the role of consular immunity in criminal cases.

• Author: Bleustein, Irina Kotchach

1. INTRODUCTION

   On December 12, 2013, Devyani Khobragade was arrested in New York City on federal felony charges of visa fraud and false statements (1) relating to the hiring of a personal domestic worker under exploitative conditions. (2) At the time of her arrest, Khobragade had been duly notified (3) to the United States Department of State as a consular officer at the Consulate General of India in New York City. (4) Under the Vienna Convention on Consular Relations, Khobragade was entitled to consular immunity, but only for acts performed in the exercise of her official consular functions. (5) Since the hiring of a personal domestic worker does not qualify as an official act, (6) criminal prosecution of Khobragade in the United States on the visa fraud and false statements charges did not violate her immunity and was therefore proper under the Vienna Convention on Consular Relations.

   Instead of allowing Khobragade's prosecution in the United States to continue, eight days after her arrest, India appointed her as a Counselor to the Permanent Mission of India to the United Nations. (7) The transfer of Khobragade's position was completed on the evening of January 8, 2014, and Khobragade's immunity status was upgraded from consular immunity to diplomatic immunity. (8) Under the Vienna Convention on Diplomatic Relations, diplomats enjoy a higher level of immunity than consular officers and cannot be prosecuted for their personal acts in the receiving state unless their immunity is waived by the sending state. (9) Although the United States requested that India waive Khobragade's immunity to allow her prosecution in the United States to continue, India refused this request. (10) Following India's refusal to waive Khobragade's immunity, she was formally asked to depart the United States immediately (11) and she did so on January 9, 2014. (12) Now that Khobragade has returned to India, her U.S. prosecution cannot continue unless she returns to the United States. (13) This means that she has effectively escaped criminal liability for her actions. (14)

   Immunity plays a crucial role in facilitating trust and friendly relations between countries. (15) The purpose of immunity under both the Consular Convention and the Diplomatic Convention "is not to benefit individuals but to ensure the efficient performance of functions" of consular posts and diplomatic missions on behalf of their sending states. (16) Diplomatic missions serve an incredibly important role as the principal link of communication between their sending and receiving countries. The efficient performance of these critical diplomatic functions requires a broader form of immunity than that which is necessary for consular officers, whose more limited role typically does not involve facilitating communication between the sending and receiving countries. (17) Often, however, this broader immunity, such as the kind afforded to diplomats by diplomatic immunity, can frustrate the pursuit of justice for victims and accountability for law-breaking foreign diplomats. (18) Consular immunity, on the other hand, purposefully does not protect consular officers from prosecution for criminal acts that are not necessary to the performance of consular functions. (19) In Khobragade's case, the alleged criminal conduct did not involve legitimate government interests, the alleged conduct did not promote the efficient function of the Indian consulate, and the crimes in question were significant enough to warrant accountability. Therefore, India should not have elevated her immunity in order to allow her to escape prosecution in the United States.

   Khobragade's case illustrates the differing impacts that consular immunity and diplomatic immunity have on criminal prosecutions in the United States. It also highlights the tension between immunity and accountability. Despite this friction, it is entirely possible for the two principles to coexist if sending states allow their consular officers to face full prosecution in the receiving state for certain crimes that have no relation to the performance of official consular functions. This note first examines the history and purpose behind the Vienna Convention on Consular Relations, as well as its interpretation and implementation. After briefly contrasting the Consular Convention with the Vienna Convention on Diplomatic Relations, this note further analyzes Khobragade's case and argues that she should have faced full prosecution in the United States for her crimes to promote justice and preserve the purpose of the Vienna Convention on Consular Relations. Finally, this note proposes a set of criteria that a sending country should consult when deciding whether to allow its consular officer to face full prosecution in the receiving state when accused of criminal conduct.

2. THE VIENNA CONVENTION ON CONSULAR RELATIONS AND ITS INTERPRETATION AND IMPLEMENTATION INTERNATIONALLY AND IN THE UNITED STATES

   Clear indicators of how fundamental aspects of the Vienna Convention on Consular Relations should be interpreted and implemented can be found by looking to the policies revealed in the history and drafting of the Convention. The Vienna Convention on Consular Relations strikes an appropriate balance between the interests of the sending and receiving states and serves as a sound method of ensuring accountability when the Convention is allowed to operate without impediment.

   1. The History and Drafting of the Vienna Convention on Consular Relations--A Policy of Balancing of Interests

      As the preamble to the Vienna Convention on Consular Relations notes, "consular relations have been established between peoples since ancient times." (20) Long before the Vienna Convention on Consular Relations, various bilateral and regional treaties specified the applicable principles of consular relations between countries. The idea that consular officers only enjoy immunity for acts performed in the exercise of their official functions was one of the few principles so widely accepted that it was regarded as customary international law. (21) The drafters of the Vienna Convention on Consular Relations faithfully preserved this idea in article (43) of the Convention. (22) Article (55) of the Convention underscores the idea that consular officers have a duty "to respect the laws and regulations of the receiving State," (23) and article 41, which states that consular officers "are liable to arrest or detention ... in the case of a grave crime and pursuant to a decision by the competent judicial authority," gives teeth to the idea that consular officers can be held criminally liable for not adhering to that duty. (24)

      The policies guiding these provisions reflect the clear intent of the drafters to strike a balance between the interest of the sending states in ensuring the efficient performance of consular functions and the interest of the receiving states in ensuring respect of their laws and regulations. (25) These policy considerations, in combination with the principle that the Convention exists "not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States," (26) render the Consular Convention's functional approach to consular immunity--that is, an approach "based on the functions a consul performs"--the most prudent. (27)

   2. Implementation of the Vienna Convention on Consular Relations--Preserving Accountability Through the Functional Approach

      Documents from the drafting of the Vienna Convention on Consular Relations evidence the drafters' intention that courts, not political branches, play a crucial role in implementing the Consular Convention by determining what acts fell within the scope of official functions and therefore entitled a consular officer to immunity. (28) Central to this principle was the idea that courts, which are impartial, are best equipped to resolve immunity questions without being affected by the political nature of current bilateral relations between the two states involved. (29) The functional approach, which is preserved when an impartial court is permitted to make immunity determinations, best serves the interests of both the sending state and the receiving state.

      The United States, which treats the immunity provisions in the Vienna Convention on Consular Relations as self-executing and has not passed legislation relating to the provisions, (30) implements the immunity provisions in a way that faithfully tracks the implementation envisioned by the Convention's drafters and preserves the Convention's balancing of interests. The U.S. Department of State has taken the position that "it is only the trier of facts which is in a position to make the determination as to the 'official' nature of the activity," thereby preserving the role of the courts as impartial determiners of consular immunity. (31)

      In determining whether an act falls within the scope of an official consular function, U.S. courts have used a two-part test that asks "whether there is a logical connection between the act and the purported function," and "whether the act is a reasonable means to the fulfillment of the function." (32) In resolving these questions, a court may look to the following factors:

      (1) the subjective intent of the consular official, based on objective evidence, in performing the act; (2) whether the act furthered some function of the consulate; (3) whether the act is of a "personal character"; (4) the seriousness of the act; and (5) the absence or presence of a malicious motive in the performance of the particular act. (33) The court may also consider "whether the act is part of a prolonged course of criminal conduct," among other factors. (34)

      An act's criminality may certainly suggest the act was not official in nature, (35) and it is sometimes asserted that an act's criminality may be entirely dispositive as to a lack of official character and immunity. (36) Whether or...