The immunity for diplomats: Some key issues the Saudi case raises

Article 29 of the Vienna Convention on Diplomatic Relations says that “the person of a diplomatic agent shall be inviolable”, and that “he shall not be liable to any form of arrest or detention”.

Written by Shubhajit Roy | Updated: September 21, 2015 4:47:18 am
saudi diplomate case, Saudi arabia diplomat, gurgaon rape case, Nepali girls rape gurgaon, diplomatic relation, diplomate punishment, diplomatic immunity, india news, delhi news, latest news Activists of All India Democratic Women’s Association shout slogans during a protest outside the Saudi Arabian embassy in New Delhi. Two Nepalese girls who alleged they were beaten and raped by a Saudi diplomat in India have been taken to a women’s shelter in Nepal. (Source: Express file Photo by Tashi Tobgyal)

Saudi Arabian diplomat Majed Hassan Ashoor, accused of raping two Nepalese women, left India without facing trial last week. The fact that Ashoor could invoke “diplomatic immunity” to escape the wheels of justice has caused deep concern and outrage. In a space dominated by hyper-ventilating TV and social media debates, outrage may sometimes seem misplaced. In this case, it isn’t.

Article 29 of the Vienna Convention on Diplomatic Relations says that “the person of a diplomatic agent shall be inviolable”, and that “he shall not be liable to any form of arrest or detention”. Diplomatic immunity is based on the principle that diplomats should be able to function without fear or intimidation in a foreign country. It was aimed at protecting diplomats especially in times of international conflicts, and promoting civilised international relations.

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Over the past few decades, however, cases of abuse of diplomatic immunity have raised questions on whether the Vienna Convention should be re-examined.

* In 1967, the Burmese ambassador to Sri Lanka shot his wife whom he suspected of having an affair. The next morning, he built a pyre on the back lawn of his house and set the body on fire. The ambassador reportedly told the Sri Lankan police that his house was Burmese territory. Police could do nothing, because the ambassador enjoyed diplomatic immunity. However, he was later recalled.

* In 1981, the son of a Ghanaian diplomat to the UN was identified as the perpetrator of at least two — and possibly 15 — rapes and robberies in New York. But he never faced charges because he, as a family member, enjoyed diplomatic immunity.

* In 1983, a Saudi Arabian diplomat’s son raped a 16-year-old in the US. He could not be charged because of diplomatic immunity, and was said to have voluntarily left the US. However, some months later, the girl encountered the accused at her workplace. The Saudi embassy claimed to the US State Department that the victim had actually seen the brother of the accused, and continued to insist that the accused had left the US. It was only after a private investigator photographed the alleged rapist that he finally left the US.

* In April 2012, in Manila, Panamanian diplomat Erick Bairnals Shcks was accused of raping a 19-year-old Filipino woman, but was released from detention because he enjoyed diplomatic immunity.

* In 1987, a delegate from Barbados to the UN sought to extend diplomatic immunity to his dog after it bit several neighbours in Pelham, New York, and warned of “possible international consequences” if any action was taken against the German Shepherd.

In his authoritative paper ‘Rethinking Diplomatic Immunity’ in the American University International Law Review in 2011, Mitchell S Ross wrote, “…Diplomats, their families, personal servants, and staff abuse this privilege to escape prosecution for… offences ranging from minor traffic violations to the most heinous criminal acts… Diplomatic immunity also permits diplomats to escape civil liability in personal injury actions.”

Governments have generally respected diplomatic immunity, even through the World Wars. Despite several cases of abuse of diplomatic immunity, however, they have rarely “waived” immunity for their diplomats so they could face action in the country of posting. But there have been exceptions.

* In 1999, the wife of the Japanese consul-general in Vancouver showed up in hospital with two black eyes and a bruised neck. She told doctors that her husband had beaten her. The diplomat admitted to punching his wife, but immunity prevented police from arresting him. After a public uproar, however, the Japanese government waived the diplomat’s immunity. He pleaded guilty in a Canadian court, but was discharged; he was, nonetheless, recalled to Japan, where he was reassigned to office duty and had his pay cut.

* In 1997, the second-highest ranking Georgian diplomat in the US was involved in a car accident that killed a 16-year-old Brazilian girl in Washington DC. The diplomat was alleged to have been driving drunk and too fast, but escaped a breathalyser test due to immunity. Public uproar was amplified after Georgia prepared to recall him, but the Georgian president finally bowed to pressure and waived the diplomat’s immunity. He pleaded guilty and served his sentence in the US.

* Last year, a Malaysian diplomat at the High Commission in Wellington claimed diplomatic immunity after facing charges of burglary and assault with intent to rape after allegedly following a 21-year-old woman to her home. The diplomat returned to Malaysia with the case ongoing, provoking a sharp reaction from Prime Minister John Key. The Malaysians eventually agreed to send the diplomat back, and the trial is set to begin this November.

Because diplomatic immunity is not waived often, the only options before an aggrieved government are to expel the diplomat and to declare him persona non grata under Vienna Convention’s Article 9, or to take the extreme step of terminating relations with his country.

In the history of international relations, bilateral relations have been terminated over diplomatic immunity on only two occasions. Once, in 1984, after a Libyan embassy staffer shot and killed a British policewoman and, earlier in 1979, between the US and Iran, after the hostage crisis.

While diplomatic immunity is intended to “insulate” diplomats from harm, it does not insulate their countries from a bad reputation and a blow to bilateral ties. The privilege of diplomatic immunity is not for an individual’s benefit. If a diplomat acts outside his business of conducting international relations, a question arises over whether his immunity still applies.

The case of the Saudi diplomat who left India is a reminder of the need to review diplomatic immunity. As the UN celebrates its 70th year this month, nations will do well to ponder over mechanisms to ensure that more diplomats like Ashoor do not get away.

shubhajit.roy@expressindia.com

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