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Diplomatic immunity

The sexual assault case, involving a foreign diplomat from Saudi Arabia has raised key questions surrounding the nature of diplomatic immunity. For the uninitiated, a diplomat from the Saudi Arabian embassy in New Delhi has been accused of sexually assaulting and facilitating the gang rapes of two Nepali domestic helpers. The incident has caused a diplomatic standoff between the two nations, despite separate reports from two medical boards stating that the victims were subjected to sexual assault. In response, New Delhi has asked the Saudi government to waive the accused diplomat’s immunity from Indian law. The Saudi government, meanwhile, has denied the charges. Moreover, it issued a protest to the Indian government, complaining about the Gurgaon police’s behaviour in the matter. Latest reports indicate that the Saudi government is unlikely to waive it for the diplomat. The only likely recourse left for the Indian government is to declare the diplomat “persona non grata”, thus compelling the Saudi government to call its diplomat back to his home country. While the issue of sexual assault remains pertinent to the debate on diplomatic immunity, this column shall focus on the dynamics surrounding it with pertinent examples.  

For the uninitiated, diplomatic immunity refers to the exemption a foreign diplomat is given from certain laws and taxes in the particular country where they are posted.  Its stated aim was to allow diplomats to function independently in a particular country, bereft of possible threats from the host nations. Diplomatic immunity is governed under two international conventions — the Convention on Diplomatic Relations, 1961, and the Convention on Consular Relations, 1963. Clubbing the two together, it is called the Vienna Convention. It has been ratified by 187 countries, including India. However, there is a difference in the type of immunity issued to diplomats posted in embassies and consulates. Under the Convention on Diplomatic Relations, 1961, a diplomat cannot be arrested or detained. What’s more, the diplomat’s house will enjoy the same protection as the embassy. 

According to the Saudi government, it is this very rule that the Gurgaon police broke by barging into the diplomat’s flat, where the two women were held hostage. Suffice to say, the Saudi government could have acted differently and waived the immunity its diplomat enjoyed since this serious crime had nothing to do with his job profile or official duties. Instead, Riyadh has decided to brazen it out. The current case takes us back to 2013, when Devyani Khobragade, a deputy consul general at the Indian consulate in New York, was arrested for not paying the minimum wage to her domestic help, as per US law. The difference then was that she was a diplomat in the Indian consulate, which under the Vienna Convention on Consular Relations, provided her with only limited immunity from US laws. New Delhi sidestepped this very rule by transferring Khobragade to the Permanent Mission of India to the United Nations, which has the status of an embassy. The move to the Permanent Mission gave her full immunity. Another case, which received wide media coverage, was the case of Raymond Allen Davis, a contractor with the Central Intelligence Agency in 2011. Davis had reportedly killed two armed men in Lahore, Pakistan. In response, Pakistani officials had Davis jailed and criminally charged with double murder and the illegal possession of a firearm. The incident had led to a full-blown diplomatic standoff between Islamabad and Washington. Although Davis was stationed at the consulate in Lahore, he was let go after the families of the two killed men were paid $2.4 million in the form of compensation, which is popularly referred to as “blood money”.
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