Idea Transcript
NOTES ACHIEVING THE COEXISTENCE OF ACCOUNTABILITY AND IMMUNITY: THE PROSECUTION OF DEVYANI KHOBRAGADE AND THE ROLE OF CONSULAR IMMUNITY IN CRIMINAL CASES Irina Kotchach Bleustein* I. INTRODUCTION On December 12, 2013, Devyani Khobragade was arrested in New York City on federal felony charges of visa fraud and false statements1 relating to the hiring of a personal domestic worker under exploitative conditions.2 At the time of her arrest, Khobragade had been duly notified3 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 * J.D. Candidate, Georgetown University Law Center, 2015; B.A., University of Pennsylvania, 2010. The author would like to thank Professor David P. Stewart for his guidance and feedback; the editors of the American Criminal Law Review; and her family, particularly her parents, Tamaz Tedeev and Tamara Kotchach, and her husband, Benjamin Bleustein. © 2014, Irina Kotchach Bleustein. 1. United States v. Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014). 2. Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment at 1, United States v. Khobragade, 15. F. Supp. 3d 383 (S.D.N.Y. 2014) (No. 1:14-cr-008). 3. “For persons normally accredited to the United States in diplomatic or consular capacities . . . the procedure for placing a person in the statutory category of being ‘duly notified to the United States’ shall be the current procedure for accreditation . . . . The Chief of the Office of Protocol will place on the roster of persons ‘duly notified to the United States’ the names of all persons currently accredited . . . .” 22 C.F.R. § 2.3 (2013). 4. Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment, supra note 2, at 2. 5. Vienna Convention on Consular Relations art. 43(1), Apr. 24, 1963, 21 U.S.T. 77, 104 [hereinafter VCCR]; Khobragade, 15 F. Supp. 3d at 383–84, 385. Consular officers only enjoy immunity from criminal prosecution for acts performed in the exercise of official consular functions. This principle has long been accepted under customary international law and was codified in the Vienna Convention on Consular Relations. 6. See, e.g., Park v. Shin, 313 F.3d 1138, 1141–43 (9th Cir. 2002) (holding that a Korean consular officer’s acts relating to the hiring and supervising of a personal domestic servant were not acts “‘performed in the exercise of consular functions’ for the purpose of the Vienna Convention” and therefore did not entitle the consular officer to consular immunity); see also Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment, supra note 2, at 6–7, 12–13 (arguing that Khobragade’s acts are not official acts).
355
356
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
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 immediately11 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
7. Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment, supra note 2, at 2; Defendant’s Memorandum of Law in Support of Motion to Dismiss Pursuant to 22 U.S.C. 254d on the Grounds of Diplomatic Immunity at 6, United States v. Khobragade, 15 F. Supp. 3d. 383 (S.D.N.Y. 2014) (No. 1:14-cr-008). 8. See Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, U.S.-U.N., art. V, Jun. 26, 1947, 11 U.N.T.S. 11 (establishing that representatives to the U.N. shall be entitled to the same immunities and privileges as diplomatic envoys); Letter from U.S. Mission to the U.N. to Devyani Khobragade, Counselor to Permanent Mission of India to the U.N. (Jan. 8, 2014) (Exhibit F to Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment, supra note 2) (informing Khobragade that she is entitled to the privileges and immunities of a diplomatic envoy). 9. Vienna Convention on Diplomatic Relations arts. 31–32, Apr. 18, 1961, 23 U.S.T. 3227, 3240–41 [hereinafter VCDR]. 10. See Diplomatic Note from the U.S. Mission to the U.N. to the Permanent Mission of India to the U.N. (Jan. 9, 2014) (Exhibit G to Memorandum of Law of the United States of America in Opposition to Defendant’s Motion to Dismiss Indictment, supra note 2). 11. Id. Under the Consular Convention, the receiving state has the option of declaring a consular officer persona non grata, which means that the sending state must terminate the consular officer’s official position or recall the officer back to the sending state. CURTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM 248 (2013). In Devyani Khobragade’s case, the United States did not officially declare Khobragade persona non grata but nevertheless formally asked her to leave the country. 12. United States v. Khobragade, 15 F. Supp. 3d 383, 384 (S.D.N.Y. 2014). The first indictment against Devyani Khobragade was filed on the morning of January 9, 2014, just hours after the United States officially recognized her new diplomatic position. Id. The first indictment was dismissed on March 12, 2014, given that Khobragade was already cloaked in full diplomatic immunity when the indictment was returned. Id. Two days after the first indictment was dismissed, Khobragade was indicted again on the same charges. Indictment, United States v. Khobragade, No. 1:14-cr-00176 (S.D.N.Y. Mar. 14, 2014). 13. Residual immunity under both the VCCR and the VCDR only extends to acts performed in the exercise of official functions. VCCR art. 53(4), supra note 5, at 111; VCDR art. 39(2), supra note 9, at 3245; see also BUREAU OF DIPLOMATIC SECURITY, U.S. DEP’T OF STATE, DIPLOMATIC AND CONSULAR IMMUNITY GUIDANCE FOR LAW ENFORCEMENT AND JUDICIAL AUTHORITIES 13 (2011) [hereinafter IMMUNITY GUIDANCE], available at http://www. state.gov/documents/organization/150546.pdf (“[O]btaining an indictment, information, or arrest warrant could lay the basis for a prosecution at a later date, e.g., if the diplomat returns to the United States at a later date in a private capacity.”). 14. Pursuing a civil suit against Khobragade is legally possible but challenging and time-consuming in practice. See Martina E. Vandenberg & Alexandra F. Levy, Human Trafficking and Diplomatic Immunity:
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
357
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
Impunity No More?, 7 INTERCULTURAL HUM. RTS. L. REV. 77 (2012) (detailing recent developments that facilitate holding former diplomats accountable through civil suits while also noting the difficulties involved in serving and collecting from the defendants). Prosecution in India seems entirely improbable given the strong reaction in support of Khobragade by both the Indian government and the public. See, e.g., AFP, India ‘Disappointed’ over Visa Fraud Charges Against Devyani Khobragade, EXPRESS TRIB., Mar. 15, 2014, http://tribune.com.pk/story/68 3208/india-disappointed-over-visa-fraud-charges-against-devyani-khobragade/ (documenting the responses of Indian officials following Khobragade’s re-indictment). 15. See VCCR pmbl., supra note 5, at 79 (underscoring the aim of promoting friendly relations among nations); VCDR pmbl., supra note 9, at 3230 (same). 16. VCCR pmbl., supra note 5, at 79; VCDR pmbl., supra note 9, at 3230; IMMUNITY GUIDANCE, supra note 13, at 3; Curtis J. Milhaupt, The Scope of Consular Immunity Under the Vienna Convention on Consular Relations: Towards a Principled Interpretation, 88 COLUM. L. REV. 841, 857–58 (1988). 17. IMMUNITY GUIDANCE, supra note 13, at 4–6; see also James E. Hickey, Jr. & Annette Fisch, The Case to Preserve Criminal Jurisdiction Immunity Accorded Foreign Diplomatic and Consular Personnel in the United States, 41 HASTINGS L.J. 351, 368–69 (1990). 18. See Derrick Howard, Twenty-First Century Slavery: Reconciling Diplomatic Immunity and the Rule of Law in the Obama Era, 3 ALA. C.R. & C.L. L. REV. 121 (2012) (recognizing the extremely limited avenues of recourse that exist when the offender is protected under diplomatic immunity and analyzing the impact of diplomatic immunity in cases involving domestic workers); Vandenberg & Levy, supra note 14, at 78 (noting that diplomatic immunity contradicts justice and can be used to avoid liability for flagrant abuse, particularly in the case of domestic workers). 19. See Milhaupt, supra note 16, at 861 (noting that the policy of balancing the interests of the sending and receiving states explains why consular immunity does not cover criminal acts that are not essential to the consular process).
358
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
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. II. 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. A. 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
20. VCCR pmbl., supra note 5, at 79. 21. LUKE T. LEE & JOHN QUIGLEY, CONSULAR LAW AND PRACTICE 16 & n.83 (3d ed. 2008); Milhaupt, supra note 16, at 842. 22. VCCR art. 43, supra note 5, at 104; Milhaupt, supra note 16, at 842–43.
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
359
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 B. 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
23. VCCR art. 55, supra note 5, at 113; see also Milhaupt, supra note 16, at 843–44. 24. VCCR art. 41, supra note 5, at 103–04; Milhaupt, supra note 16, at 852–53. 25. See Milhaupt, supra note 16, at 849–53 (explaining in detail how these policies are evident in articles 5, 41, 43, and 55 of the Convention and citing to debate from the Convention and the International Law Commission, particularly the statements of ILC Special Rapporteur Jaroslav Zourek, to support these assertions). 26. VCCR pmbl., supra note 5, at 79; IMMUNITY GUIDANCE, supra note 13, at 3; see also Milhaupt, supra note 16, at 841, 857–58. 27. See United States v. Cole, 717 F. Supp. 309, 322 (E.D. Pa. 1989) (stating that the “theoretical basis for diplomatic immunity is generally agreed to be ‘functional necessity’”); LEE & QUIGLEY, supra note 21, at 440–48 (defining the functional approach generally and in relation to the Consular Convention); Milhaupt, supra note 16, at 857–62 (describing the functional approach, the relevant policy considerations, and its application). 28. See Milhaupt, supra note 16, at 844 & n.21 (citing to official U.N. records from the plenary meetings at the Convention including the statement of Mr. Kirchschlaeger from Australia asserting that the role of courts in this process is “of the greatest importance”). 29. Id. at 56–57.
360
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
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 not one accepts the argument that criminal acts are never covered by consular immunity because the exercise of official consular duties never requires the commission of criminal acts, U.S. courts have consistently applied the functional approach and found that
30. BRADLEY, supra note 11, at 246. This note focuses on the provisions of the Vienna Convention on Consular Relations that relate to immunity. A comparison to how the United States implements other provisions from the Vienna Convention on Consular Relations, such as article 36, which pertains to the arrest or detention of foreign nationals, is certainly interesting and warrants further research but is not addressed in this note. 31. See MARGARET S. PICKERING ET AL., 1989–1990 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 348 (2003), available at http://www.state.gov/documents/organization/139393.pdf (“Whether a particular action or activity would be considered an exercise of a person’s consular functions is a matter for judicial determination.”); LEE & QUIGLEY, supra note 21, at 451 (citing to 1978 DIGEST § 2, at 629–30); Milhaupt, supra note 16, at 857 & n.108. 32. Cole, 717 F. Supp. at 323 (citing Gerritsen v. Escobar y Cordova, No. CV 85–5020, slip op. at 15 (C.D. Cal. Sept. 16, 1988)). 33. Id. 34. Id. (citing State of Vermont v. Kent–Brown, No. 1501-4-88, slip op. at 12 (D. Vt. July 15, 1988)). 35. LEE & QUIGLEY, supra note 21, at 453. 36. See Cole, 717 F. Supp. at 323 (“[I]t has been suggested that the Vienna Convention might not provide immunity for any criminal act.”); Milhaupt, supra note 16, at 861 (“In fact, there may never be cases in which otherwise criminal conduct is immunized by the Vienna Convention . . . . The consular process does not require the execution of criminal acts. Therefore, amenability to jurisdiction for such conduct is fully consistent with the functional necessity theory of immunity.”).
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
361
criminal acts committed by consular officers were not covered by consular immunity in a number of cases. In United States v. Cole, a federal district court held that a Yugoslavian consul-general charged with money laundering was not protected by consular immunity.37 The court used the functional approach to conclude that the consulgeneral’s acts were not performed in the furtherance of his official functions, and therefore, he was not entitled to consular immunity.38 In United States v. Chindawongse, the Court of Appeals for the Fourth Circuit affirmed the conviction and sentence of a Thai vice-consul charged with conspiracy to distribute heroin, possession of heroin with intent to distribute, and two substantive counts of distributing heroin.39 The court found that the privileges and immunities of the Vienna Convention on Consular Relations “do not extend to insulating consular officials from prosecution for grave offenses such as conspiracy to distribute and distribution of heroin,”40 and upheld Chindawongse’s sentence of thirty years in prison and a $75,000 fine with a special parole term of six years.41 In State v. Doering-Sachs, the court held that consular immunity did not protect an employee of the consulate of Argentina from charges of aggravated assault on a law enforcement officer and resisting arrest, despite the fact that the defendant was driving to deliver diplomatic documents at the time of his arrest.42 The court applied the functional approach and factors mentioned above to conclude that the criminal acts the consular employee was charged with “were not in connection with, or in furtherance of, his consular duties.”43 The approach of the courts in these cases indicates that, in the years since the Vienna Convention on Consular Relations was concluded, the United States has demonstrated a commitment to implementing the Vienna Convention on Consular Relations in a manner that is consistent with the Convention’s history, purpose, and intended implementation, thereby upholding the proper balance between immunity and accountability. III. THE HISTORY, PURPOSE, AND IMPLEMENTATION OF THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS The differences between the functions of consular posts and diplomatic missions are vast, and these differences are evident in the policies informing the provisions of the Vienna Convention on Diplomatic Relations, as well as in the implementation of the Diplomatic Convention.
37. 38. 39. 40. 41. 42. 43.
Cole, 717 F. Supp. at 323–24. Id. at 322–24. United States v. Chindawongse, 771 F.2d 840 (4th Cir. 1985). Id. at 848 n.10. Id. at 842, cited with approval in Cole, 717 F. Supp. at 323. State v. Doering-Sachs, 652 So. 2d 420 (Fla. Dist. Ct. App. 1995). Id. at 424.
362
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
A. The History and Purpose of the Vienna Convention on Diplomatic Relations—Sovereign Equality, Reciprocity, and Broader Immunity The vast majority of the diplomatic privileges and immunities codified in the Vienna Convention on Diplomatic Relations were already considered to be customary international law long before the Convention was drafted.44 Article 31 states that a “diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State,” and article 29 declares that a diplomat “shall not be liable to any form of arrest or detention.”45 Even though diplomats, like consular officers, have a “duty . . . to respect the laws and regulations of the receiving State,” under article 41 of the Diplomatic Convention, diplomats can only be prosecuted for their crimes if the sending state consents to an express waiver of the diplomat’s immunity under article 32.46 The policies driving these provisions of the Vienna Convention on Diplomatic Relations differ greatly from those informing the Vienna Convention on Consular Relations. The broader form of immunity from the criminal jurisdiction of the receiving state, even for personal acts, is a product of the desire to preserve “the sovereign equality of the sending and receiving states and the important related notion of reciprocity.”47 In the case of diplomatic relations, the diplomats who serve as the main channel of communication between the sending state and the receiving state play an important political role in relations between the two states.48 Therefore, the interests of both the sending and receiving states weigh heavily in favor of full immunity to foster mutual respect of sovereignty and reciprocity.49 B. Implementation of the Vienna Convention on Diplomatic Relations—Political Influence and Decreased Accountability Given the nature of international diplomacy, implementation of the Vienna Convention on Diplomatic Relations is inherently political. This renders holding diplomats criminally liable difficult in many situations. Although the United States considers the immunity provisions in the Vienna Convention on Diplomatic Relations to be self-executing, Congress has also passed implementing legislation for the provisions through the Diplomatic Relations Act of 1978.50 The 1978
44. See Hickey & Fisch, supra note 17, at 368 (commenting on the “unambiguous evolution of customary international law regarding diplomatic privileges and immunities”); Howard, supra note 18, at 138 (“The need to protect diplomats is grounded in our Nation’s important interest in international relations.” (quoting Boos v. Barry, 485 U.S. 312, 323 (1988)). 45. VCDR arts. 29, 31, supra note 9, at 3240–41. 46. VCDR arts. 32, 41, supra note 9, at 3241, 3247; see also Howard, supra note 18, at 142. 47. Hickey & Fisch, supra note 17, at 358. 48. See supra note 17 and accompanying text. 49. See Hickey & Fisch, supra note 17, at 358. 50. BRADLEY, supra note 11, at 246 & n.111.
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
363
Diplomatic Relations Act, which codifies the immunity provisions of the Vienna Convention on Diplomatic Relations in domestic legislation, is just one of several instances of the legislative branch’s involvement in diplomatic relations.51 The U.S. Department of State plays a very active role in matters relating to the criminal prosecution of foreign diplomats. The State Department has sometimes forbidden the U.S. Department of Justice from using certain techniques, such as wiretapping, in the Department of Justice’s criminal investigations of diplomats based on the State Department’s conclusion that these investigative techniques would impinge upon diplomatic immunity.52 The State Department is typically proactive in seeking a waiver of immunity from the sending state when the Department of Justice wishes to prosecute the offending diplomat. If the receiving state’s government determines that it would prosecute a diplomat if the diplomat were not protected by diplomatic immunity, it will then request that the sending state waive the diplomat’s immunity.53 In the United States, the policy of the U.S. Department of State is that “[i]f the charge is a felony or any crime of violence, and the sending country does not waive immunity, the U.S. Department of State will require that person to depart the United States and not return,” unless it is to face prosecution in the United States.54 The U.S. Department of State also wields a substantial amount of influence over diplomatic immunity in the judicial arena. Typically, U.S. courts defer to the State Department on the certification of a diplomat’s status,55 and also give substantial weight to the State Department’s position on whether or not immunity should ultimately be granted in a particular case.56 Therefore, in matters involving diplomatic immunity, the political branches have a much greater influence over the outcome of the matter, and often affect the course of prosecution in the matter. This is quite different from matters involving consular immunity, where the resolution of immunity questions is solely within the purview of the impartial judicial branch.57 When political forces are involved, the nature of bilateral relations and 51. See 22 U.S.C. § 4304b (2012) (requiring the Secretary of State to submit an annual report to Congress on crimes committed by diplomats, encouraging the State Department to consider agreements in which the receiving state can exercise criminal jurisdiction over diplomats, and requiring the State Department to periodically keep foreign missions apprised of the policies of the United States as to diplomats who commit crimes); Hickey & Fisch, supra note 17 (detailing and discussing the implications of proposed legislation to exercise jurisdiction over foreign diplomats who commit certain crimes in the United States). 52. See Vandenberg & Levy, supra note 14, at 82 & n.24 (noting that the State Department’s interference with the Department of Justice’s investigations of diplomats, particularly in cases involving domestic workers, has made it difficult for the Department of Justice to gather enough evidence to proceed with prosecution). 53. Id. at 82. 54. IMMUNITY GUIDANCE, supra note 13, at 14. 55. BRADLEY, supra note 11, at 248 & n.132. 56. See Knab v. Republic of Georgia, No. 97-cv-3118, 1998 WL 34067108, at *3 (D.D.C. May 29, 1998) (“Although the Court is not obliged to defer to the State Department’s opinion, it finds the [State Department’s] letter useful evidence.”); BRADLEY, supra note 11, at 249 (stating that courts give weight to the executive branch’s views on whether immunity should be granted). 57. See supra Part II.B.
364
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
other international and domestic pressures have the potential to supersede justice and accountability. While this outcome is understandable in light of the policy considerations informing the Vienna Convention on Diplomatic Relations and diplomatic relations in general, allowing politics to eclipse accountability in criminal cases involving consular officers would not be justified by these same policies. IV. DEVYANI KHOBRAGADE’S CRIMINAL PROSECUTION IN THE UNITED STATES Devyani Khobragade’s case highlights the tension between the various policies informing the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations. Applying the Consular Convention’s functional approach and balancing of interests to Khobragade’s case reveals that the crimes she was charged with were not related to acts performed in the furtherance of her official duties. Therefore, her criminal prosecution in the United States would not have contravened the Vienna Convention on Consular Relations, and India should have allowed Khobragade to face full prosecution in the United States in order to preserve the fundamental provisions of the Consular Convention and to promote justice and accountability. By transferring Devyani Khobragade to the Permanent Mission of India to the United Nations, India manufactured Khobragade’s diplomatic immunity in a way that undercut the Vienna Convention on Consular Relations and set a dangerous precedent that allows consular officers to escape criminal liability for their actions and should not be permitted in subsequent cases. A. Devyani Khobragade Was Not Entitled to Consular Immunity and Her Criminal Prosecution in the United States Was Proper Under the Vienna Convention on Consular Relations As a preliminary matter, Devyani Khobragade’s arrest was proper under the Vienna Convention on Consular Relations because consular officers are vulnerable to arrest “in the case of a grave crime and pursuant to a decision by the competent judicial authority.”58 The term “grave crime” has been interpreted to mean a felony,59 and federal magistrate judges and the federal grand jury have been held to be “competent judicial authorities” entitled to make this determination.60 Even though no court has conclusively made a determination regarding Khobragade’s consular immunity in this case, under the functional approach employed by courts in determining whether or not immunity exists for criminal acts committed by consular officers, Khobragade is not entitled to consular immunity for her acts. Khobragade was charged with visa fraud in violation of 18 U.S.C. § 1546 and making false statements under 18 U.S.C. § 1001 as a result of her actions in
58. VCCR art. 41, supra note 5, at 103–04. 59. United States v. Cole, 717 F. Supp. 309, 324 n.5 (E.D. Pa. 1989); Milhaupt, supra note 16, at 853. 60. United States v. Chindawongse, 771 F.2d 840, 848–49 (4th Cir. 1985).
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
365
arranging to bring a live-in domestic worker to the United States from India.61 In order to circumvent numerous United States wage and labor laws that provide necessary protections against exploitative work conditions, Khobragade is alleged to have fabricated and caused the submission of a fraudulent employment contract to the United States government, which made it appear that Khobragade would provide the domestic worker with satisfactory work conditions and compensation at the required minimum wage of $9.75 per hour.62 In reality, Khobragade signed a second employment contract with the domestic worker that contained the true terms of her employment and in which the required protections against exploitative work conditions had been deleted.63 Khobragade often allegedly required the domestic worker to work over one hundred hours per week, paid her at a rate equivalent to approximately $1 to $3 per hour (depending on the number of hours the domestic worker worked in a given week), refused to grant any sick days, holidays, or days off, and confiscated her passport and refused to return it, all in contravention of the laws designed to protect personal domestic workers contained in 18 U.S.C. §§ 1375b–c.64 Khobragade is also alleged to have attempted to intimidate and silence the domestic worker and her family after the domestic worker fled Khobragade’s residence.65 A United States court presiding over Khobragade’s case would consider “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”66 in determining whether Khobragade’s acts fell within the scope of an official consular function and therefore entitled Khobragade to immunity from prosecution. Looking to the additional factors that courts may consider when answering these questions, it becomes clear that Khobragade’s acts were not performed in the exercise of her official consular duties. The submission of a false employment contract is objective evidence of Khobragade’s intent to evade the labor and wage laws designed to protect domestic workers in similar situations. The hiring of a domestic worker, particularly under illegal and exploitative conditions, did not further any function of the consulate. Moreover, these acts were of an inherently personal nature, as the domestic worker lived in Khobragade’s home, where she cooked, cleaned, and cared for Khobragade’s two children.67 Additionally, employing a domestic worker under such exploitative conditions is a serious act, and Khobragade’s alleged intimidation of the domestic worker and her family indicates that Khobragade had a malicious motive. Almost all of Khobragade’s acts 61. Indictment, United States v. Khobragade, 15. F. Supp. 3d 383 (S.D.N.Y. 2014) (No. 1:14-cr-008). 62. Id. at 9. 63. Id. at 12–14. 64. Id. at 14–16. 65. Id. at 16–17. 66. United States v. Cole, 717 F. Supp. 309, 323 (E.D. Pa. 1989) (citing Gerritsen v. Escobar y Cordova, No. CV 85–5020, slip op. at 15 (C.D. Cal. Sept. 16, 1988)). 67. Indictment, supra note 61, at 14–15.
366
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
pertaining to the hiring and employment of the domestic worker constituted a prolonged course of criminal conduct. Finally, a convincing argument can be made that, under the functional approach, any criminal act committed by the consular officer does not entitle the consular officer to immunity because the performance of official consular functions never requires criminal acts.68 In Park v. Shin, the court applied the functional approach and held that the hiring and employment of a domestic worker is not an act in the furtherance of official consular functions and does not entitle a consular officer to consular immunity.69 Although Park v. Shin is a civil case, there is no reason to think the analysis would be conducted differently in a criminal case. Courts have also come to the same conclusion in other cases, such as Swarna v. Al-Awadi70 and Baoanan v. Baja.71 Both were civil cases involving former diplomats in which the courts held that employment of a domestic worker in a diplomat’s residence was a private act, meaning the former diplomat was not protected by residual immunity for these acts.72 Because Khobragade’s acts in connection with the employment of a personal domestic worker were not performed in the exercise of her official consular duties, she was not legally entitled to consular immunity under the Vienna Convention on Consular Relations. In protecting consular officers from the criminal jurisdiction of the receiving state only for official acts, the Consular Convention strikes a balance between the interests of the sending and receiving states. When criminal acts are not necessary for the performance of consular duties, the balance weighs in favor of accountability, justice, and respect for the laws of the receiving state. When India upgraded Khobragade to a diplomat with full diplomatic immunity, India circumvented the purpose and spirit of the Vienna Convention on Consular Relations. B. Devyani Khobragade Should Have Faced Full Prosecution in the United States to Preserve Accountability Unfortunately, Devyani Khobragade’s case is not the first time a consular officer has been accused of exploiting a domestic worker brought to the United States under illegal working conditions. Various sources, such as government reports, newspaper articles, and law review articles, detail the trafficking and abuse of domestic workers by foreign diplomats and consular officers as endemic in the United States.73 A report by the Government Accountability Office published in
68. See supra note 36 and accompanying text. 69. Park v. Shin, 313 F.3d 1138, 1141–43 (9th Cir. 2002). 70. 622 F.3d 123 (2d Cir. 2010). 71. 627 F. Supp. 2d 155 (S.D.N.Y. 2009). 72. Swarna, 622 F.3d at 137–38; Baoanan, 627 F. Supp. 2d at 169. 73. See, e.g., Howard, supra note 18 (detailing the role diplomats play in human trafficking and domestic worker abuse cases); Vandenberg & Levy, supra note 14 (same); Martina E. Vandenberg, Diplomats Who Commit
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
367
2008 states that forty-two domestic workers have alleged that they were abused by diplomats between the years 2000 and 2008.74 The report also asserts that the actual number of cases is likely higher.75 In November of 2012, the ambassador of Mauritius to the United States was prosecuted for underpaying his domestic worker because the government of Mauritius waived his diplomatic immunity in order to allow his prosecution in the United States to proceed.76 This outcome, however, is exceptionally rare. Foreign diplomats accused of abusing their domestic workers have long been able to escape criminal prosecution in the United States because of the full diplomatic immunity that applies to them77 and the evidentiary challenges involved in conducting criminal investigations of diplomats.78 Consular officers, on the other hand, have been held criminally liable in the United States for their abuse of domestic workers on several occasions. In June of 2011, an Italian consular officer was arrested for his employment of a domestic worker under exploitative conditions.79 The consular officer pleaded guilty to a less serious offense, paid the domestic worker $13,000 in back wages, and then left the United States.80 In November of 2011, a Taiwanese envoy was arrested and held in custody in connection with her employment of two domestic workers from the Philippines who accused her of human trafficking. She pleaded guilty, paid a fine of over $11,000 and over $80,000 in criminal restitution to the domestic workers, and was then deported.81 Notably, there have been two other cases of abuse of domestic workers involving consular officers from the Consulate General of India in New York, which is the same consular post at which Devyani Khobragade was employed.82 A case from August of 2011, in which the Consul General allegedly overworked and underpaid a domestic worker, was resolved in an undisclosed settlement.83 Crimes Shouldn’t Get a Free Pass, WASH. POST, Jan. 1, 2014, http://www.washingtonpost.com/opinions/diplomatswho-commit-domestic-worker-crimes-shouldnt-get-a-free-pass/2014/01/01/61b750b6-719d-11e3-9389-09ef9 944065e_story.html [hereinafter Vandenberg, Diplomats Who Commit Crimes] (highlighting previous cases of domestic worker abuse involving consular officers from India and other countries and comparing these cases to Devyani Khobragade’s case); Worker Abuse by Diplomats a Problem in US: Advocates, INDIA TIMES, Dec. 30, 2013, http://www.indiatimes.com/news/americas/worker-abuse-by-diplomats-a-problem-in-us-advocates-11998 3.html (profiling other cases of domestic worker abuse, particularly involving the Indian consulate). 74. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-892, U.S. GOVERNMENT’S EFFORTS TO ADDRESS ALLEGED ABUSE OF HOUSEHOLD WORKERS BY FOREIGN DIPLOMATS WITH IMMUNITY COULD BE STRENGTHENED 3 (2008) [hereinafter GAO REPORT], available at http://www.gao.gov/new.items/d08892.pdf; Howard, supra note 18, at 136 & nn.66–67. 75. GAO REPORT, supra note 74, at 3; Howard, supra note 18, at 136 & nn.66–67. 76. Vandenberg, Diplomats Who Commit Crimes, supra note 73. 77. See, e.g., Vandenberg & Levy, supra note 14, at 83–84 (explaining why foreign diplomats have not been criminally prosecuted in the United States for alleged domestic worker abuse). 78. GAO REPORT at 16–20. 79. Vandenberg, Diplomats Who Commit Crimes, supra note 73. 80. Id. 81. Id. 82. Worker Abuse by Diplomats a Problem in US: Advocates, supra note 73. 83. Id.
368
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
Another case from July of 2010 alleges that the domestic worker was kidnapped and trafficked to the United States by the consular officer when she was only seventeen years old and was grossly overworked and abused for three years. That case ended in an award of approximately $1,500,000 to the domestic worker.84 Though these are both civil cases, they illustrate the fact that domestic worker abuse and human trafficking continues to be serious problem in the Consulate General of India in New York. The recurring nature of domestic worker abuse and human trafficking by diplomats and consular officers indicates an undeniable need for accountability, particularly in the form of criminal liability whenever possible. The Victims of Trafficking and Violence Protection Act, passed by Congress in 2000, contains special provisions aimed at addressing the problem of diplomatic and consular domestic worker abuse, but these provisions focus only on civil remedies.85 Since the Victims of Trafficking and Violence Protection Act was passed, however, statistics on the number of individuals who are trafficked across national borders have remained virtually unchanged.86 This fact—when considered in conjunction with the estimated forty-two cases of domestic worker abuse by diplomats from the years 2000 to 2008 and the cases of abuse by diplomats and consular officer officers in recent years discussed above—indicates that the remedies in place have not succeeded in curtailing domestic worker abuse. Where criminal liability is possible, as it is with consular officers who only have immunity for their official acts, full prosecution in the United States is vital to halting the abuse of domestic workers. The relevant wage and labor laws intended to protect domestic workers are widely available to foreign diplomats and consular officers, and the fact that Khobragade manufactured a fake employment agreement suggests she knew of the wrongful nature of her acts.87 Since Khobragade was a consular officer who was entitled only to immunity for her official acts, her case provided a rare opportunity to promote justice and accountability in relation to the problem of domestic worker abuse through criminal prosecution. When India upgraded her immunity to that of a diplomat, this opportunity was thwarted. Under the legally binding international agreements contained in the Vienna Convention on Consular Relations—which is the only international convention that applied to Khobragade when she was arrested—full criminal prosecution in the United States would have been entirely proper. Khobragade’s private acts did
84. Id. 85. See Vandenberg & Levy, supra note 14, at 96 (discussing the Victims of Trafficking and Violence Protection Act and the protections for domestic workers, such as the provision that allows “trafficked domestic workers residing in the United States on special A-3 and G-5 visas to remain in the United States to pursue civil lawsuits against their diplomat abusers”). 86. Howard, supra note 18, at 129–30. 87. Indictment, supra note 61, at 1, 3–4.
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
369
not involve any legitimate consular functions or Indian government interests, and if the Vienna Convention on Consular Relations had been faithfully observed, Khobragade’s case would have been resolved by an impartial court, as the Convention’s drafters had envisioned.88 Instead, India’s actions took the case away from the judicial branch and transplanted it into the heavily politicized arena of diplomatic relations, in which accountability is often substantially frustrated. This creates a dangerous precedent for future cases, in which a sending state wishing to protect its consular officer from prosecution in the receiving state may simply appoint the officer to a position that carries full diplomatic immunity, effectively undermining the force of the Vienna Convention on Consular Relations. In cases such as Khobragade’s, accountability through criminal prosecution is proper, necessary, and should not be thwarted. V. PROPOSED CRITERIA FOR FUTURE CASES Consular officers should be held accountable in the receiving country when they commit certain crimes that are unrelated to the exercise of consular functions. Ensuring that the sending state does not interfere with the receiving state’s prosecution is crucial to preserving the Vienna Convention on Consular Relations and its purpose. Currently, however, there are no defined criteria that a sending state can look to when deciding whether or not the sending state should allow its consular officer to face full prosecution in the receiving state. The existence of such criteria would not only increase certainty about how states will respond to criminal prosecutions of consular officers, but would also underscore the message that criminal conduct will not be tolerated by the sending state, the receiving state, or the international community. Selecting the appropriate criteria requires a careful consideration of the policies behind the Vienna Convention on Consular Relations and the potential situations that may give rise to criminal charges against consular officers. Certain commentators, particularly Professor Curtis Milhaupt, have argued that under the functional approach, it is possible that there may never be a criminal act that is so vitally connected to an official consular function that it requires immunity under the Vienna Convention on Consular Relations.89 Milhaupt focuses on crimes that are malum in se—in other words, crimes that are “inherently immoral, such as murder, arson, or rape”90—as those that are “incompatible with the exercise of consular functions and seriously impinge on the receiving-state interests.”91 According to Milhaupt, violence, which characterizes most malum in se crimes, is “not essential to the consular process,” and that extending immunity to acts involving violence
88. 89. 90. 91.
See supra notes 28–29 and accompanying text. See supra note 36. BLACK’S LAW DICTIONARY 1045 (9th ed. 2009). Milhaupt, supra note 16, at 861.
370
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
would subject the receiving state to “the worst abuses of immunity.”92 Milhaupt does recognize, however, that cases may arise “in which it is unclear whether receiving-state regulation will have a debilitating impact on an essential function, or in which it is difficult to determine whether a recognized consular function is involved and the conflicting interests of the sending and receiving states are evenly matched.”93 Milhaupt wisely notes that certain complex regulations in the receiving state may have a negative impact on the function of the sending state’s consular post.94 Because crimes stemming from the criminalization of certain regulations are the most likely to have an impact on the efficient functioning of a consular post, it would be unwise to encourage states to agree to the prosecution of all malum prohibitum crimes generally. Borrowing from Milhaupt’s approach to create a set of general criteria that simply state that consular officers who commit malum in se crimes will face full prosecution in the receiving state is perhaps too simplistic as well. Different countries may have different views on which crimes should be included in this broad category. Therefore, a non-exhaustive list enumerating the types of crimes that will be prosecuted in the receiving state is necessary. An examination of past prosecutions of consular officers may be helpful in ascertaining which crimes should be treated as unrelated to the exercise of consular functions. A list of crimes for which consular officers have faced criminal prosecution in the United States in the past would include: distribution of drugs and conspiracy to distribute drugs,95 money laundering,96 assault on a law enforcement officer and resisting arrest,97 and employing personal domestic workers under exploitative conditions.98 These crimes are very likely to be unrelated to consular functions, and therefore could be included in a list of crimes for which prosecution of a consular officer should be allowed to proceed in the receiving state. In 1988, Congress, responding to public frustration with abuses of immunity, considered passing a bill that would subject diplomats and consular officers to the criminal jurisdiction of the United States for certain crimes, in spite of the immunity provisions in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations.99 The bill included crimes of violence, drug trafficking, and “reckless driving or driving while intoxicated or under the influence of alcohol or drugs.”100 Although these crimes will almost certainly
92. Id. 93. Id. 94. See id. 95. United States v. Chindawongse, 771 F.2d 840 (4th Cir. 1985). 96. United States v. Cole, 717 F. Supp. 309 (E.D. Pa. 1989). 97. State v. Doering-Sachs, 652 So. 2d 420 (Fla. Dist. Ct. App. 1995). 98. Vandenberg, Diplomats Who Commit Crimes, supra note 73. 99. Hickey & Fisch, supra note 17, at 351–52. 100. Id.
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
371
never be tied to the legitimate exercise of consular functions, “unilateral removal of immunity from criminal jurisdiction” for foreign diplomats and consular officers as proposed in the bill would unwisely put the United States in contravention of its international obligations and bilateral agreements that extend greater immunity to consular officers of certain countries.101 In addition to containing a list of enumerated crimes, the proposed criteria should also include several qualifications. To promote harmonious relations between countries, the criteria proposed here should not be implemented unilaterally, but rather through a bilateral or multilateral international agreement. Only states that treat the enumerated crimes similarly would voluntarily enter into an international agreement containing these criteria. Additionally, it is important that the criteria do not conflict with certain bilateral agreements that extend greater immunity to consular officers of certain countries. Therefore, the criteria would be presumed not to apply in those situations in which the sending and receiving states have a pre-existing bilateral agreement that guarantees mutual criminal immunity for consular officers. Finally, it is important to note that the criteria should only apply when the receiving state faithfully implements the provisions of the Vienna Convention on Consular Relations in its criminal prosecutions. Most importantly, an impartial court should determine the question of whether or not an act qualifies for immunity. With these qualifications, it is proposed that the sending state should not seek to protect its offending consular officer from prosecution in the receiving state for the following crimes, because these crimes will almost never involve the exercise of legitimate consular functions and preventing prosecution would harm the interests of the receiving state: i. crimes of violence, including but not limited to: murder, assault, and crimes of sexual violence, such as rape; ii. trafficking of drugs; iii. trafficking of persons and related offenses, including exploitation of domestic workers; iv. money laundering and embezzlement; and v. driving while intoxicated.
A receiving state that signs an international agreement adopting these proposed criteria does not waive its right to exercise prosecutorial discretion in deciding whether or not to prosecute a consular officer for one of these enumerated crimes. Instead, an agreement implementing these criteria would bind the sending state to allow their consular officer to face prosecution in the receiving state, if the receiving state decides to prosecute. This list is non-exhaustive and may include other crimes, but these enumerated crimes are the least likely to involve legitimate 101. See id. at 372 (mentioning the bilateral agreements that the United States has with Hungary, Poland, and the Philippines, among others).
372
AMERICAN CRIMINAL LAW REVIEW
[Vol. 52:355
consular functions and the most likely to harm the interests of the receiving state in preserving the safety of its residents and respect for its laws. Criminal liability is crucial to combating these crimes. Ensuring that the sending state does not seek to protect its consular officer from prosecution by elevating the officer to the position that carries diplomatic immunity will preserve the Vienna Convention on Consular Relations and promote accountability and justice. The consequence of not adopting these proposed criteria and instead continuing under the status quo is the erosion of the key functions of criminal law, both in the United States and internationally. In Devyani Khobragade’s case, the breadth of diplomatic immunity undermined the fairness and efficiency of the U.S. criminal justice system. Her ability to escape criminal prosecution in the United States means that she has essentially escaped punishment for her acts.102 In the United States, punishment is designed to promote a respect for the law and to deter similar criminal conduct.103 When accountability is thwarted by immunity, respect for the law is destroyed, further criminal conduct is not deterred, order is not preserved, and the public is not protected. VI. CONCLUSION Devyani Khobragade should have faced full prosecution in the United States for her crimes in connection with the hiring of a personal domestic worker. Instead, India transferred her to a position to which full diplomatic immunity attached and thereby allowed Khobragade to escape criminal liability for her actions. This course of action is extremely concerning because it robs the Vienna Convention on Consular Relations of its significance and disrupts the balancing of interests of the sending state and the receiving state that is inherent to the structure of consular immunity under the Consular Convention. Diplomatic immunity under the Vienna Convention on Diplomatic Relations is justified by very different principles than those that inform the Vienna Convention on Consular Relations, and diplomatic immunity should not be manufactured to protect consular officers who have committed crimes from prosecution in the receiving state. If a consular officer is protected from prosecution by the sending state by being transferred to a position of diplomatic immunity, alternative remedies exist, but mainly only in theory. Technically, a criminal or civil suit against the offending individual is possible in the sending state but only if the conduct is considered a crime in the sending state.104 Pursuit of a civil suit once the individual has left the country and is only afforded residual immunity is also possible in theory but
102. See supra note 14 and accompanying text. 103. 18 U.S.C. § 3553(a) (2012); see also Gall v. United States, 552 U.S. 38, 50 n.6 (2007). 104. See LEE & QUIGLEY, supra note 21, at 462 (“A consul remains subject to the criminal jurisdiction of the sending State, at least insofar as conduct in which the consul engages may be regarded by the sending State as falling within its criminal jurisdiction.”).
2015]
CONSULAR IMMUNITY IN CRIMINAL CASES
373
extremely difficult in practice.105 Because prosecution in the receiving state is more likely to be carried out, and because a court in the receiving state is more likely to be impartial, full prosecution in the receiving state is the best way to achieve accountability and ensure justice. The tension between immunity and accountability can be resolved if immunity is not invoked when the crime was not related to the performance of official consular functions. The proposed criteria, which seek to ensure that the sending state will allow full criminal prosecution to proceed in the receiving state for certain crimes, increase certainty about how criminal cases involving consular officers will be handled and send a message of intolerance for abuses of immunity. If these criteria are adopted and followed, the wisdom of the Vienna Convention on Consular Relations will be preserved and the proper balance between immunity and accountability will be achieved.
105. See supra note 14 and accompanying text.