NEVER IMMUNE TO CONTROVERSY

By Somasekhar Sundaresan

Diplomatic immunity is in the news again. And it will flare up emotively yet again. A Saudi Arabian diplomat and family are alleged to have held hostage two Nepali women hired as domestic help in their apartment in Gurgaon. The women have also alleged sexual assault, and medical examination is reported to have confirmed it. The diplomat’s immunity would be at the centre stage again, and debate would rage over whether the immunity would at all be available since sexual harassment of domestic help would not be in the line of diplomatic duty.

Diplomatic immunity as a custom predates the immunity as we know it since 1961, when the Vienna Convention on Diplomatic Relations was signed. Even in the Ramayana, it is said that Vibhishan reminds Ravan that Hanuman was only the messenger of Ram, and could not be put to death. The need to ensure that a country does not shoot the messenger has been at the root of the immunity. Insults to messengers have caused many a war in the history of civilisation. The Vienna Convention binds all member states. Under the treaty, “members of the diplomatic staff, and of the administrative and technical staff and of the service staff of the mission” enjoy “immunity from the criminal jurisdiction of the receiving State”.

The immunity ends up getting tested. Devyani Khobragade, India’s deputy consul general in New York, was arrested for allegedly lying on oath about the remuneration she paid her maid. Just before the arrest, she had moved the courts in Delhi against her maid. In retaliation, the then UPA government aggressively reviewed the security detail provided to the US Embassy. The US moved out its Ambassador to India when it was discovered that the US had given the maid’s husband in India safe passage and asylum in the US. The two countries have since been busy at patching up relations with the US President being the chief guest at this year’s Republic Day parade in India.

Conflicts between diplomats and their domestic help has been at the core of many a controversy over whether the immunity is absolute. The abuse of diplomatic immunity and the seemingly logical need for nations to rework their agreement on it are increasingly making news.

However, it is critical to appreciate the need for immunity. Absence of immunity would mean that diplomats could get dragged into politics with false charges being levelled and getting embroiled in legal proceedings to lead evidence on their defence on merits. It would enable frustrating the diplomat’s capacity to serve effectively.

The country that has sent the diplomat may indeed waive the immunity and make its diplomat face trial in the receiving country. Even the individual diplomat is not free to waive this immunity since the benefit of the immunity is not to the individual but to the country that sent the individual diplomat. Indeed, when the country represented by the offending diplomat waives the immunity, and a diplomat is sentenced by the local court in the country where he is serving, the diplomat would typically be sent back to his home country to serve the sentence there. The immunity from prosecution in the country that has received the diplomat does not mean that the diplomat would go scot free. The home country may also prosecute the diplomat or take appropriate action under the home country laws, and punish there for the violation.

Diplomatic immunity got tested in an extremely improbable situation in India when the Supreme Court asked for deposit of the Italian Ambassador’s passport. The court had permitted two Italian marines who were facing trial in India to go home when the Italian Ambassador promised that they would come back. Italy changed its mind and refused to send the undertrials back, and the court took away the diplomat’s passport.

Taking the passport away would constitute an arrest with the territory of India being the prison. The marines indeed came back and the diplomatic crisis was defused. The latest on the subject is that the proceedings in India have been stayed by the Supreme Court after a United Nations tribunal has reportedly directed India and Italy to maintain status quo.

Tweets @SomasekharS

This article was published in the Mumbai Mirror and allied publications on September 11, 2015

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