External Affairs

It’s Time the World Took Another Look at Diplomatic Immunity

Saudi flag on embassy building. Credit: Andrew Fackler/Flickr CC BY-NC 2.0

Saudi flag on embassy building. Credit: Andrew Fackler/Flickr CC BY-NC 2.0

As the Saudi Arabian First Secretary in New Delhi, Majed Hassan Ashoor, gets tucked into his first class seat on a flight back to Riyadh, India will be busy cleaning-up the diplomatic disaster it barely managed to avert. Majed was accused of gory sexual violence including gang rape and physical brutality against two hapless victims of human trafficking from Nepal. According to medical reports in several local newspapers, the women bore signs of repeated sexual abuse with injuries to their private parts, infections resulting from the same, signs of physical abuse and possible post-traumatic stress disorder. The Indian government has faced much flak from its own people and the world for its inability to control crimes against women and the sheer brutality of the above incident will not sit easily with the collective conscience.

Gang rape in India can attract a maximum penalty of capital punishment. Yet, the perpetrator in this case will probably stand unaffected. The Vienna Convention on Diplomatic Relations 1961, grants complete immunity to the officer and his family, including for heinous crimes and human rights violations. In addition, even the diplomat’s private residence (here, the alleged crime scene) is inviolable under the convention. Had India prosecuted the diplomat, it would have violated a convention it has ratified, jeopardising the safety of Indian diplomats and migrants in Saudi Arabia. In addition, relations with India’s largest supplier of oil [PDF] is of crucial significance, especially in the light of Prime Minister Narendra Modi’s impending visit to the country. However, the Gurgaon police is still following the trail of human trafficking as India cannot afford to drop the case completely either.

Immunity is absolute

India’s diplomatic conundrum is not new. The Vienna Convention has faced much criticism in recent times because it provides a perverse incentive for the perpetration of offences. A close examination of the evidence indicates that sexual violence and other heinous crimes by diplomats are not uncommon. However, they have repeatedly escaped prosecution and conviction. In April 2012, a Panamanian diplomat in Manila allegedly raped a 19-year-old Filipino woman but claimed diplomatic immunity and walked free. In another case in 1999, the wife of the Japanese Consul-General in Vancouver was admitted to a city hospital with black eyes and bruises and complained of being beaten-up by her husband. Upon questioning, the diplomat said “Yes, I punched her out and she deserved it”. Homicide and rape cases have also been dropped due to diplomatic immunity. In 1981, the son of a Ghanaian ambassador to the UN was accused of raping at least 15 women at knife point in New York City but had to be let-off.

Saudi Arabia has an infamous record with respect to diplomats engaging in sexual offences. A Saudi diplomat has previously walked free after having allegedly held two Indonesian women as slaves in the UK. Prince Turki al-Faisal intervened to prevent an enquiry against another Saudi diplomat who was accused of molesting an 11-year-old girl in London. The US was equally scandalized when in 2013, a case was filed against a Saudi defence attaché and his wife for holding two Filipino women hostage for months in their Virginia mansion. As expected, Saudi Arabia has denied all of New Delhi’s allegations. The embassy has even registered an official complaint against the police raid, citing a breach of diplomatic privilege. Even if the diplomat had not left the country, India’s hands were tied. As Dapo Akande and Sangeeta Shah have noted, citing the German Constitutional Court’s 1997 ruling in the Former Syrian Ambassador case, “diplomatic immunity from criminal prosecution basically knows no exception for particularly serious violations of law.” The most India could have done in this case was to declare him persona non grata. 

Origins of the norm

The concept of diplomatic immunity emerged in order to ensure the safety of diplomats against arbitrary state action. For example, Mongolian kings, though known for their ruthlessness, were committed to the norm of “don’t shoot the messenger”. Its historical precedents in the subcontinent can be traced back to the the times of Mahabharata and Ramayana, when Ravana ordered the killing of Hanuman but his younger brother opposed it because messengers or diplomats should not be killed or arrested as per ancient practices. However, implicit to the proviso of diplomatic immunity is the assumption of appropriate behaviour. The convention explicitly states that “without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” However, if a diplomat behaves in a way unbecoming of his role, the convention provides no possible recourse – paving the way for immunity to morph into a mechanism for shielding those who would otherwise be proven guilty in a court of law.

The offence at hand is not a simple parking ticket – it is rape,sexual abuse, sodomy and abetment of trafficking. Allowing the Saudi diplomat to fly off calls to question the very principles of natural justice that form the basis for the formulation of conventions and covenants. It is odious that international conventions governed by  the overarching philosophy of protecting and enforcing human rights are being invoked to violate the same.

Coupled with India’s commitment to the Vienna Convention is that of its responsibility to uphold the UNODC Convention Against Transnational Organized Crime, which it has also ratified. The Protocol to Prevent, Suppress and Punish Trafficking in Persons is a part of the abovementioned convention. However, India has a dubious record in controlling human trafficking. Its porous borders with Nepal have facilitated the easy movement of vulnerable girls and women to India, from where they are smuggled to various destination points across Europe and the Middle East.

This phenomenon has been exacerbated by the economic turmoil caused by the Nepal earthquake. According to the estimates of local NGOs like 3 Angels Nepal, more than 1600 girls are trafficked into India every month, and are subjected to a subhuman life of slavery, violence and abuse. Coupled with these dismal figures is the attitude of bureaucratic insensitivity prevalent in our country. If the Gurgaon police were proactive in pursuing a tipoff that led to the raid on the diplomat’s premises, the MEA has been reluctant to provide clearances for examining the CCTV footage that was recovered from the his residence. In fact, a former Indian diplomat has been quoted as saying “Frankly to me, it is more important that we maintain our extremely good relations with Saudi Arabia than seeing this man being tried here, which he cannot.” Although practical, the suggestion leaves unresolved the rights of the two women to justice. If India cannot prosecute him – not now or ever, because diplomatic immunity protects the accused even after he ceases to be a diplomat, Saudi Arabia can and should. Even Nepal, whose nationals are the victims in this case, has a right to prosecute the diplomat should he ever fall into Kathmandu’s hands as his immunity does not extend to that country.

How to fix things

The recent incident forces us to think anew about not just the rank injustice involved but also the very principles which underlie the  Vienna Convention.

Diplomatic immunity derives its essence from the 17th century concept of Westphalian sovereignty – which is predicated on the principle that each nation has exclusive sovereignty over its territory and domestic affairs. As representatives of a sovereign state – to which alone they are accountable – diplomats are thus entitled to absolute non-interference from their host states in their personal and professional matters. However, the geopolitical fabric of the 21st century is quite fluid and is no more characterized by such rigid boundaries of state domain. The influence yielded by supranational and international bodies like the UN, the WTO and the EU in shaping the domestic affairs of countries is quite significant. In addition, all nation states not only share a commitment to upholding the Universal Declaration of Human Rights – which regards all humans as born with equal rights and dignity – but most are also party to a host of other international covenants that impose restrictions on what they can and can’t do within their own territory.

The Vienna Convention itself establishes that the immunity enjoyed by a consular officer is not as absolute as that of a diplomatic agent – which is why the United States was able to arrest and charge the Indian consular official, Devyani Khobragade even though she was a diplomat. Consular staff are not indemnified from serious criminal offences. As a first step, this proviso should also be read into diplomatic immunity as well. Another suggestion could be to hard-code the obligation of a state to prosecute its own diplomat in the event that immunity is evoked by him or her to avoid prosecution by the host country for a defined set of heinous offences.

It is quite evident that much has changed in the realm of human rights and international law since 1961. The Vienna Convention needs to be reimagined to ensure that it does not function as a shield for delinquent diplomats. As much as the world needs to ensure the safety to its messengers, it also has an obligation to protect victims of violence regardless of who the perpetrators are.

Divya Balaji is a Global Health Fellow from Yale University and has assisted anti-trafficking efforts in Tanzania and India

Prateek Mantri is a freelance consultant and researcher on crime and political economy