Anil Nauriya, who advocates before the Supreme Court of India, has added an important point (in the Comment section):
Regarding the arrest of a Consular official, the Vienna Convention requires that this may be done [in the case of a grave offence] “pursuant to a decision by the competent judicial authority”?
The question is whether even a PRE-TRIAL judicial warrant of arrest would be such a “decision”.
The focus in much of the discussion has been on the meaning of “grave offence”.
I would argue yet another aspect of the question : that the pre-trial arrest even of a Consular Official [without full diplomatic Immunity] is of doubtful legality and, in any event, had to be the subject of a pre-arrest hearing leading to a pre-arrest judicial decision on such liability for pre-trial and pre-indictment arrest.
Before such a pre-arrest hearing, all that the “competent judicial authority” could have done is to issue a summons and pass an order preventing the Consular official from leaving the US pending such a pre-arrest hearing.
The Deccan Herald reports that the UN legal office supports Khobragade’s claim:
” A United Nations agency has endorsed New Delhi’s claim that Indian Foreign Service officer Devyani Khobragade enjoyed full diplomatic immunity when she was arrested by the United States law-enforcement officials in New York on December 12 last.
The opinion of the UN Office of Legal Affairs (OLA) supports New Delhi’s argument that Khobragade enjoyed full immunity at the time of her arrest as she had already been accredited to the international organisation as a representative of India since August last year.
Khobragade’s lawyers have cited the UN OLA’s view in a court in Manhattan to counter the recent move by Preet Bharara, the US district attorney for southern district of New York, to dismiss New Delhi’s claim.
Stephen Mathias, UN Assistant Secretary General for Legal Affairs, on January 27 last wrote to India’s Deputy Permanent Representative to the international organisation conveying the UN OLA’s views on the issue. ”
He wrote that representatives of all members of the United Nations “to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, while exercising their functions and during their journey to and from the place of meeting, enjoy the privileges and immunities set forth in Section 11 of the General Convention”.
