Husain Haqqani:
http://www.thedailybeast.com/articles/2013/12/19/husain-haqqani-on-america-s-diplomat-shame.html
http://www.thedailybeast.com/articles/2013/12/19/husain-haqqani-on-america-s-diplomat-shame.html
The recent diplomatic tiff over mistreatment of an Indian diplomat by U.S. law enforcement authorities is neither about rule of law nor about diplomatic immunity. It involves the issue of courtesy for representatives of foreign governments, which is essential for the conduct of international relations.
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American diplomats are extended considerations over and beyond the law in most countries.
Almost every U.S. diplomatic facility abroad is surrounded by barriers often erected on public property that violate municipal ordinances. American diplomats are allowed to board flights and exit airports through different exits than other passengers. These facilities protect U.S. government representatives in an era of terrorist threats.
American law enforcers need to be mindful of these global realities before setting off another storm while arresting a foreign diplomat or consular agent.
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CIP · 588 weeks ago
http://legal-dictionary.thefreedictionary.com/Dip...
Established in large part by the Vienna conventions, diplomatic immunity is granted to individuals depending on their rank and the amount of immunity they need to carry out their duties without legal harassment. Diplomatic immunity allows foreign representatives to work in host countries without fully understanding all the customs of that country. However, diplomats are still expected to respect and follow the laws and regulations of their host countries; immunity is not a license to commit crimes.
In the United States, several levels of immunity are granted: the higher the rank, the greater the immunity. Diplomatic Agents and their immediate families have the most protection and are immune from criminal prosecution and civil lawsuits. The lowest level of protection is granted to embassy and consular employees, who receive immunity only for acts that are part of their official duties—for example, they cannot be forced to testify in court about the actions of the people they work with. The Diplomatic Relations Act of 1978 [22 U.S.C.A. § 254a et seq.] follows the principles introduced by the Vienna conventions. The United States has had a tendency to be generous when granting diplomatic immunity to visiting diplomats because a large number of U.S. diplomats work in host countries less protective of individual rights. If the United States were to punish a visiting diplomat without sufficient grounds, U.S. representatives in other countries could receive harsher treatment.In the United States, if a person with immunity is alleged to have committed a crime or faces a civil lawsuit, the department of state alerts the government that the diplomat works for. The Department of State also asks the home country to waive immunity of the alleged offender so that the complaint can be moved to the courts. If immunity is not waived, prosecution cannot be undertaken. However, the Department of State still has the discretion to ask the diplomat to withdraw from her or his duties in the United States. In addition, the diplomat's visas are often canceled, and the diplomat and her or his family are barred from returning to the United States. Crimes committed by members of a diplomat's family can also result in dismissal.
macgupta 81p · 588 weeks ago
Consular officers, on the other hand, have only functional immunity. It means that a consular officer has complete immunity from the jurisdiction of the receiving State, only for those acts performed in the exercise of their consular functions (Article 43). But does this mean that arresting Khobragade was the only way to serve the interests of justice? Article 41 of the VCCR is clear that a consular officer shall not be liable for arrest or detention pending trial, except in the case of grave offences and pursuant to a decision by the competent judicial authority.
The term grave offence has not been defined in the convention. The US courts have interpreted felony (a crime regarded in the US and many other judicial systems as more serious than a misdemeanour) to mean grave crimes. A felony may include offences ranging from a flaw in visa documentation to acts of terrorism. However, to resort to pre-trial arrest for an alleged visa misrepresentation, equating it for this purpose, with instances of graver crimes, like those connected with terrorism is irrational, an instance of non-application of mind and against the spirit of the VCCR.
The International Law Commission had warned against the implications of a pre-trial arrest as they hamper the functioning of the consulate and harm the interest of both the receiving and the sending States. Article 40 also casts a duty on the receiving State to treat consular officers with due respect and prevent attacks on their person, freedom or dignity. Therefore, the US should have shown restraint and treated her with dignity which the VCCR requires.
Second, was the procedure followed not disproportionate to the gravity of the offence? What was sought to be achieved by handcuffing a lady consular official in public view, strip searching her, subjecting her to cavity search and holding her along with drug dealers is beyond comprehension. It was simply high-handedness. There was no threat of Khobragade absconding or resisting arrest. In fact, the strip searches have been subject to constitutional challenges in the US itself.
- See more at: http://www.hindustantimes.com/comment/analysis/in...
(We know how the constitutional challenge worked out).