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Immunity is not impunity

States have to work together to ensure the credible prosecutions of diplomats accused of crimes

Written by Praveen Swami |
Updated: September 18, 2015 5:02:15 am
saudi diplomat case, gurgaon rape case, gurgaon nepali girls rape case, Saudi diplomat rape case, Devyani Khobragade, 1961 Vienna Convention on Diplomatic Relations, diplomats accused of crime, action against diplomats, legal action against diplomat, india news, latest news Activists of All India Democratic Women’s Association shout slogans during a protest outside the Saudi Arabian embassy in New Delhi. (Source: PTI file photo)

He seemed not to notice her as he walked with the crush of commuters headed down a New York street one freezing afternoon in 1981. But Carol Holmes recognised the smartly dressed young man right away: Three weeks earlier, he’d held a gun to her back and raped her in her Manhattan apartment. The police soon had him in custody, but her relief was short-lived. Forty-five minutes later, 19-year-old Manuel Aryee, the son of a Ghanaian diplomat, claimed diplomatic immunity — and walked out, free. “For all I know,” Holmes told People magazine, “he could have been going to a French restaurant for dinner.”

Now, as anger mounts over Saudi diplomat Majed Hassan Ashoor evading prosecution for allegedly raping and torturing two Nepali maids, many Indians are asking if the time has come to revisit the immunities diplomats enjoy — one of the foundational agreements of modern international relations. Article 31 of the 1961 Vienna Convention on Diplomatic Relations says diplomats “shall enjoy immunity from the criminal jurisdiction of the receiving state”, and also “from its civil and administrative jurisdiction”.

For decades now, though, the immunity granted to women and men like Ashoor has also worked to protect criminality. In 1983, a curly-haired regular at the Godfather, a Washington DC strip club, flashed two pistols at staff who ejected him for drunken behaviour — and then fired three times into Kenneth Skeen, a bouncer. The son of a Brazilian diplomat, Antonio Azeredo da Silveira claimed immunity, and was sent home. In 2004, a Saudi diplomat based in London was held after he sexually assaulted an 11-year-old girl, the daughter of the diplomats who were hosting him at a party that evening. Police arrested the diplomat, but had to release him without charge after he claimed diplomatic immunity.

London-based Indian diplomat Anil Verma had to be removed from the country after his wife accused him of domestic violence in 2010. France and Germany, for their part, pulled out diplomats accused of drunken altercations with police, while Mongolia extended protections to an official charged with cigarette smuggling.

Long before modern diplomatic conventions began to evolve in 17th century Europe, great civilisations understood the importance of ensuring that diplomatic envoys were inviolate. The ill-treatment of Raja Raja Chola’s envoys sparked the Kandalur War in 994 CE. Genghis Khan’s armies insisted on the inviolability of the lives of their ambassadors — and razed entire cities to defend that principle. The Mongolian conquest of the Khwarezmid empire in 1219 began after one of Genghis Khan’s ambassadors was beheaded.

It’s not just because of historical inertia, though, that diplomatic immunities have survived. Behind the Vienna Conventions lies one simple truth: If one nation punishes diplomats, for good reasons or bad, there is nothing to stop the other nation from doing the same. For all practical purposes, diplomats would be at constant risk of becoming hostages. Knowing this, nation-states have let diplomats literally get away with murder. In 1984, Libyan embassy staffer Salah Ameri allegedly opened fire at protesters, killing British police officer Yvonne Fletcher. Britain severed diplomatic relations, after which the accused embassy staff member left the country.

In a thoughtful analysis published in 2000, legal scholar Dror Ben-Asher noted that “the occasional abuse of the diplomatic immunity rules is largely offset by the continuing need for them”. He added: “The actual number and percentage of abuses affecting fundamental human rights is relatively small, [and] therefore a complete wholesale rewriting of the rules or even a too-radical reform, is undesirable.”

Yet, the problem remains; diplomatic passports aren’t meant to be get-out-of-jail-free cards. The real problem lies not with the Vienna Convention, but with national governments. The tribal structure of bureaucracies work to ensure that the protection of their own is privileged over justice. Though nation-states have the option of waiving diplomatic immunity, they almost never do.

Nation-states also rarely exercise their second choice — to try diplomats for their crimes once they return to their homeland. Even if they do, the chances of a successful prosecution are low: the Nepali maids allegedly raped and tortured in Gurgaon are, after all, profoundly unlikely to ever make their way to Saudi Arabia to give evidence in a trial.

In at least some cases, frustrated legal systems have started ignoring the Convention. The best-known case, in India, is that of Devyani Khobragade, who was accused of violating anti-slavery and visa laws while working as India’s acting consul-general in New York. Khobragade was handcuffed and arrested in violation of the plain language of the 1963 Vienna Convention on Consular Relations — which governs her class of diplomatic official — mandating that “consular officials shall not be liable to arrest or detention pending trial, except in the case of a grave crime”.

The US argued that Khobragade’s alleged crime was a felony — a category of crime that it uses to distinguish serious offences from misdemeanours. Thus, the argument goes, her alleged offence met the “grave crimes” stipulation of the Convention. Felonies, India responded, encompass a range of crimes, and even include the theft of over a certain amount of money. It could not, Delhi said, be reasonably argued that such offences meet the Convention-mandated criteria of a “grave crime”. Either way, the fact remains she was never tried for her alleged wrongdoing.

India’s own legal system has behaved much like the US one, on occasion. Frustrated by his failure to honour commitments that two Italian marines charged with the murder of fishermen off the coast of Kerala would return to India to stand trial, the Supreme Court restrained Italian Ambassador Daniele Mancini from leaving the country. India’s actions were a flat-out violation of the Vienna Convention on Diplomatic Relations. European diplomats protested, rightly, against what they argued was an egregious violation of the Conventions.

To prevent these kinds of actions from becoming more frequent, it is vital that governments work together to ensure the credible prosecutions of suspects armed with diplomatic passports. Failing to ensure that immunity doesn’t mean impunity will otherwise destroy a critical diplomatic convention.

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