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Diplomatic impunity

The first step to revisit immunity for diplomats should be taken by the UNGA

Written by Bhaskar Balakrishnan |
September 28, 2015 12:39:59 am
diplomatic immunity, vienna convention on diplomacy, saudi diplomat case, nepali girls rape case, gurgaon rape case, saudi diplomat rape case, Saudi arabia india relation, india news, latest news, indian express column, indian express opinion The victims can also pursue the matter in Saudi Arabia, though this seems a remote possibility. The fact that the victims belong to a third country, Nepal, complicates the legal process. (Source: Express file photo)

The recent incident in which Majed Hassan Ashoor, first secretary of the Saudi Arabian embassy in New Delhi, was alleged to have sexually abused two Nepali maids has thrown up questions over diplomatic immunity, especially for very serious crimes. What lessons can be learnt from this incident? Should diplomatic immunity have limits?

Relations between states have since antiquity involved the use of diplomats as representatives of a sovereign power in another state. It has come to be accepted that in the interest of orderly and fruitful conduct of interstate relations, the representatives of a foreign power are regarded as virtual extensions of the sending state, and are thus not subject to the laws of the receiving state. Over the years, this has been codified into international law. Diplomatic immunities and privileges are provided under two international conventions: the Vienna Conventions on Diplomatic Relations and Consular Relations, adopted in 1961 and 1963, respectively. It is important to note that the person and premises of a diplomat are inviolable and cannot be entered, except with the permission of the sending state. A diplomat can be proceeded against only if the sending state waives immunity. A receiving state can declare a diplomat “persona non grata”, and in such a case the diplomat must be withdrawn or lose her immunity.

The framework of the Vienna Conventions has served well over the past decades to regulate the regime under which diplomats operate. Diplomats are mostly conscious of the need to respect the laws of the host country, and are careful not to give offence to local sensibilities as a matter of commonsense and to function effectively.

Regrettably, the actions of a few diplomats have led to a public demand to review the question of diplomatic privileges and immunities. Cases include the abuse of import privileges, non-payment of dues for local services, traffic offences, etc. In rare cases, diplomats have caused death or serious injury in traffic accidents, including while driving under the influence of alcohol. Most cases arise from the aberrant personal behaviour of diplomats and have nothing to do with their official functions. In other cases, the receiving or sending state may intentionally misuse diplomatic privileges to gather intelligence, etc. But these incidents are dealt with quietly.

The recent case involves serious allegations of gangrape and sexual abuse on the part of the diplomat. The Saudi government will hopefully take strong action against him and provide compensation to the victims, though this cannot mitigate the offence. The victims can also pursue the matter in Saudi Arabia, though this seems a remote possibility. The fact that the victims belong to a third country, Nepal, complicates the legal process.

Indian actions have been in conformity with the Vienna Conventions, though the entry into the Saudi diplomat’s residence by the Gurgaon police has been questioned. Ideally, the ministry of external affairs should have been consulted before making a raid. The police claim that the residence was not known to be a diplomat’s residence raises serious questions, especially since information on all residences hired by diplomats and, indeed, all foreigners is required to be sent to the police.

Generally speaking, police officials are  not aware of the nuances of diplomatic  immunities and privileges. This needs  to be corrected by giving special training to police officers.

There is a demand to set some limits on diplomatic immunities and privileges, especially for very serious crimes. This demand has been articulated in many countries. There are also issues connected with the diplomatic bag system, security and counterterrorism, such as frisking of diplomats at airports, and public health exigencies that may need to be considered. Certainly there should be more effective mechanisms to ensure that diplomats do not abuse their privileges and commit serious crimes.

The Vienna Conventions were finalised after a long process of negotiations, with the United Nations heavily involved. Based on this history, the first step towards revising the Vienna Conventions should be taken by the UN General Assembly and the International Law Commission. A revision can be done, but UN members must give it priority. Activists should collectively put pressure on governments and get some of them to bring up the matter at the UNGA.

The process will be long and will need much  patience, besides dealing with a Pandora’s Box of issues.

The writer is a former Indian ambassador

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