Saudi diplomat row: Ambition must not overshadow justice

  • Menaka Guruswamy, Hindustan Times
  • Updated: Sep 15, 2015 18:17 IST

The newspapers have reported a horrific saga of sex slavery by a Saudi diplomat, reportedly the first secretary at the embassy. The Saudi national is accused of confining, torturing, trafficking and sexually abusing two Nepali citizens, who had been hired as domestic staff for his home in Gurgaon. He is also accused of providing these two women to his friends to sexually abuse. His wife, meanwhile, is alleged to have participated in torturing the two women.

The allegations against the Saudi national are credible, since reports from local hospitals and doctors have corroborated the horrific physical assaults on both women. The medical reports confirm rape and sodomy. They also show knife injuries on one. A senior official at the Gurgaon civil hospital, who was responsible for the medical examination, observed that the women had been so grievously tortured that it would take them years to recover.

In terms of international realpolitik — India is caught between two long-term allies — Nepal and Saudi Arabia. Nepal, with whom India enjoys a special relationship is persistent in its demands for action against the diplomat. However, India is unlikely to put too much pressure on Saudi Arabia, a strategic and influential partner in the region, and a supplier to India’s ever increasing demand for oil.

This horror story also throws up numerous issues of international law. The Vienna Convention on Diplomatic Relations, 1964 — ratified by 190 nations, mandates that a diplomat shall not be liable for any form of arrest or detention, and that his or her person shall be inviolable. This convention also warrants that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission. This means that the Gurgaon residence of the diplomat enjoys the same protection as the embassy premises. Hence, the search of the premises by the police is rendered fragile under international law.

However, serious or persistent breaches by the diplomat may render him or her persona non grata — a declaration that may be issued by India. This would necessitate the diplomat being withdrawn from the embassy. There are two other international conventions that are relevant. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 is a codification of the jus cogens or a fundamental norm of international law that prohibits and punishes torture. Torture is defined to be the infliction of severe pain or suffering — mental or physical, by any person acting in an official capacity. The diplomat slaver, claiming immunity, would satisfy the legal threshold of torture.

India has signed the convention against torture, while Saudi Arabia and Nepal have acceded to it. This means that Saudi Arabia has binding obligations under international law to enable the punishment of any of its officials for acts of torture. Further, India and Saudi Arabia (along with 165 other countries) have both ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2003. They are obligated under international law to address such a crime. Therefore, it would be legally appropriate for Saudi Arabia to hand over its diplomat for prosecution, if necessary.

However, the real impediment to the prosecution — either locally or in the home country of the diplomatic ‘slaver’ — is that Saudi Arabia has not distinguished itself in its treatment of women under domestic or International Law. Saudi Arabia has largely rendered its women citizens into being non-rights holders. Saudi women have only recently won a hard fought battle to be able to drive cars. This is not a country that will recognise and enable the prosecution of a citizen, much less a diplomat, for the severe torture, rape and degradation of two foreign women on foreign soil.

Meanwhile, India had its own experiences with the invocation of diplomatic immunity in the face of violation of local laws of a host country. In December 2013, Devyani Khobragade, a member of India’s foreign service, who was deputy consul general in New York, was arrested on charges of visa fraud (pertaining to employment conditions of the nanny) and for underpaying her housekeeper Sangeeta Richards. The low wage paid to Richards violated New York states’ labour laws.

The Indian government had then reacted to Khobragade’s arrest with indignation. Our television channels reacted with rage at this slight to India’s pride — its diplomatic immunity and sovereignty. Yet, a critical difference set apart Khobragade’s case from the one of the diplomat ‘slaver’. Khobragade could be arrested since she was stationed at the India’s Consulate in New York, performed consular functions and was not based in the embassy in Washington performing diplomatic functions.

Therefore, the Indian foreign service officer was governed by the Vienna Convention on Consular Relations, 1963. This convention provides that consular officers may be arrested or detained for a grave crime, pursuant to a decision ratifying the arrest by a competent judicial authority. India responded by hurriedly shifting Khobragade to our mission to the United Nations. Hence, Khobragade acquired the necessary diplomatic immunity that would protect her from further detention and imprisonment.

India should be concerned by the wanton lack of humanity and degradation meted out to the two women in question. Domestic labour is a huge work force in our country, and abuse of the workers must be dealt with stringently. We should also take our own aspirations of global leadership seriously, by recognising that such ambition also demands exemplary enforcement of international norms against torture and slavery. Indian diplomacy must aim to ensure that the Saudi citizen joins the investigation and is prosecuted.

Menaka Guruswamy is a Supreme Court lawyer
The views expressed are personal

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