The purpose of the 1961 Vienna Convention, which governs diplomatic immunity is to allow diplomats to discharge their legitimate official functions without being subject to jurisdiction of a country where they are posted. The idea is to protect the diplomats from being subject to pressure or restrained from performing their duties by host governments, or coerced in any manner.
The laws are not uniform across the globe, their application can be arbitrary, punishments can vary and the justice systems are not always independent. Some countries allow physical mutilation or lashes even for what are considered relatively minor offences elsewhere.
Today, public opinion generally finds it difficult to accept unequal treatment before the law for a crime committed. Diplomatic immunity, therefore, at times becomes a controversial concept.
It is important to understand that the way international relations are structured, diplomats represent the sovereignty of a state to which they belong. Diplomatic immunity is therefore accorded to the “state”, as it were, not the individual per se. If a foreigner was not a state representative, there would be no immunity for any infraction of the law.
It also needs understanding that when a diplomat commits a crime, he may have immunity in so far the laws of the host state are concerned, but he is answerable to the laws of his country. It would be expected in such cases that the individual concerned is tried and condemned in his own country as required under law.
Even for diplomats there is no total immunity. For civil wrongs they are liable. They have to pay traffic offences and they can be sued in property cases and so on.
In this background, the Saudi diplomat’s offence was by no stretch of the imagination a part of his “official duties”, and therefore it is punishable under law, if proved.
The Saudi government has three options in this case. They can make their own internal investigation through their Ambassador or by sending a team from Riyadh to look into the case. If their internal enquiry reveals that the diplomat is guilty, they can decide to waive his immunity and let the Indian police deal with the case under Indian laws.
In the case of the egregious crime that the diplomat in question is accused of, countries, which believe in the rule of law and have a vocal domestic public opinion to contend with, could decide to waive immunity. This is rare, but conceivable. In the case of Saudi Arabia, this option is difficult to imagine.
If waiver is not given, countries with a strong commitment to justice would normally subject the offending person to the rigour of their own law, for which they would be ready to entertain all the evidence available from India as part of a legal process. This option is available to Saudi Arabia. Whether this would be taken is a moot question.
The third option is to deny any guilt on the part of the diplomat concerned and blame the local authorities for violation of diplomatic immunity by forcible entry into the residence of the diplomat (the place of residence is also inviolable under the Vienna Convention). The Saudi Embassy has done this.
In view of this the government would have no choice but to declare the diplomat persona non grata or discreetly seek his removal from India.
This may not satisfy public opinion at home, as it would appear that the diplomat concerned has got away with an unspeakable crime. The government would come under criticism – wrongly – for not enforcing the law.
In actual fact, in these circumstances, the government has no choice but to adhere strictly to the Vienna Convention. Violating it has long term implications for the safety of Indian diplomats and the sanctity of the Convention to which all countries are attached.
Of course, it is open to governments in such cases to make an issue of such an incident, even when diplomatic immunity is accepted, and seek condign action against the accused in his own country and follow the progress of the case.
Overall relationship matters
Such a course has to take into account the overall relationship with the country in question – in this case Saudi Arabia – and decide whether to close the matter with the withdrawal of the diplomat or pursue it.
All said and done, the reprehensible conduct of an individual Saudi diplomat cannot hold in hostage the entire relationship with Saudi Arabia, which has many dimensions and has been transformed in recent years to the point that the two are now strategic partners. No disproportionate view should be taken in such cases.
In any case, this incident, which has been widely reported internationally, even in the Arab world, has certainly damaged the image of Saudi Arabia, already not very savoury as regards the conduct of its diplomats abroad.
From our side, it would be necessary to identify the accomplices of the diplomat and deal with them under our laws if they are not entitled to diplomatic immunity.
A view has been expressed that because NepalI maids are involved, we have also to satisfy Nepal with the way we have dealt with the case, and this makes the case more delicate for us diplomatically. There isn’t much merit in this view. Nepal is as aware of the provisions of the Vienna Convention as we are, and the limitations that this imposes on us. Just to satisfy Nepal we cannot violate the Convention.
In fact, the local police have opened themselves to criticism for violating the immunity of the Saudi diplomat’s residence and rescuing the maids. To that extent, Nepal would not only have no reason to complain, it should actually appreciate the action of Indian police authorities.
Need for a balanced view
Now, it is true that the police did breach the Vienna Convention, knowingly or unknowingly, by entering the premises of the diplomat. But this action has to be seen against the reason for doing so and so a balanced view has to be taken of the incident. If the alleged enormity of the cause wasn’t there, the police would not have intervened at all.
It should also be said, that unlike in the Devyani Khobragade case, where the US State Department authorised police action against the Indian diplomat in New York, and that too after several diplomatic exchanges between the US government and us- and to that extent it was pre-meditated action- in the Saudi diplomat’s case, there was no green light given by the MEA to the police. Furthermore, the diplomat was not arrested, handcuffed and taken to the police station and subjected to a search. There was no assault on his person. Only the maids were rescued.
The other question that has been raised is the publicity given to the incident and whether this was wise. Well, we have seen that on women’s issues, rapes and other sexual crimes, public opinion in India is highly sensitive and the media plays them up, sometimes disproportionately.
If the government, for reasons of our relations with Saudi Arabia, had tried to actively put a lid on this, it would have been accused of insensitivity to such issues, of succumbing to pressure by Saudi Arabia to suppress the incident, of attaching importance to political considerations at the cost of unfortunate victims of such terrible sexual abuse.
In any case, even if the government wanted to be more discreet, the involvement of the NGO and the Nepal Embassy would have made it impossible to deal with the matter “discreetly”.
All in all, this has been a most unfortunate incident. The most practical outcome would be for the Saudi authorities to publicly state they intend to seriously deal with this incident and punish the guilty in accordance with their laws.
The writer is a former Indian foreign secretary