The recent case involving a Saudi diplomat shows that stiffer penalties under international law are needed for those who ratify and then violate the Vienna Convention
The Vienna Convention on Diplomatic Relations is in sharp focus once again. This time, it is a dispute between India and Saudi Arabia. A Saudi diplomat has been accused of some dubious activities that involved two ladies from Nepal. While on the one hand, there has been a justifiable sense of outrage both in India and Nepal, the Saudis have protested that the police raid on the residential premises of the diplomat violated the principles of diplomatic immunity. They have also claimed that the diplomat was innocent — without bothering to explain why the Indian law enforcers would indulge in a provocative action which was sure to have repercussions.
The diplomat has thus enjoyed the inexplicable cloak of anonymity which is certainly not mandated by this treaty. This writer has been watching various television debates and has been reading several newspaper columns which have allowed this episode to acquire a dimension that it should not have. Most of them have concentrated on the patent injustice that takes place in Saudi Arabia and by and large goes unpunished. It is true that Saudi Arabia does follow certain customs, that are deeply unjust and demeaning.
But that is not what we should be debating right now. What should concern us here is about a country, that deigns to condone criminal actions by its diplomats. And in this regard, Saudi Arabia is not alone. let us digress and peruse Section 29 of the Convention which states, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”
That is as succinct as it can be. India has no authority to initiate criminal proceedings against this seemingly unworthy man. Article 31 of the Convention makes it even more succinct when it states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: A real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission; an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions.”
In contrast, we have the landmark ruling in Empson vs Smith where the Diplock court ruled, “It is elementary law that diplomatic immunity is not immunity from legal liability, but immunity from suit. The diplomats are under an obligation to respect the laws and regulations of the receiving state”. This makes the entire issue murkier. As a former student of international law, this writer can state confidently that Saudi Arabia, despite its medieval laws is not the only culprit. This writer was in the UK when a young policewoman, Yvonne Fletcher was shot by someone from the libyan Embassy. libya claimed diplomatic immunity and the UK had to accord the errant diplomat a free passage.
How many of us would be able to recall Prakash MehrotraIJ He was a non-descript Congress worker whose loyalty to the Nehru-Gandhi family earned him the High Commissioner's post in london. This writer can recall, how Prakash Mehrotra broke diplomatic decorum, when in a TV programme, he freely criticised former Prime Minister Atal Bihari Vajpayee. His son was caught shoplifting and he invoked diplomatic immunity. When there was a hue and cry, he returned to India and faded into anonymity. This llustrates that even the Government of India, at times has not been above abusing the diplomatic provisions for questionable ends without of course.
The best course will be to name and expel this diplomat from India. With more than three million expatriates from India in that country, there is a possibility of retaliation but that is something that should not deter us from what we believe is just. On a broader note, in the light of Empson vs Smith judgement, the matter should be referred to the apex court for its opinion on the parameters of diplomatic immunity which may bring some clarity to this vexatious conundrum. Still, being more fundamental, it is crucial to re-negotiate the Vienna Convention. The guidelines should be clearer and there should be stiffer penalties under the international law for those who ratify and then violate.