Why Diplomatic Immunity in the Case of the Saudi Diplomat Raises Critical Questions

The two Nepalese women who were allegedly harassed by Saudi diplomat in Gurgaon, at the Nepal embassy on September 9, 2015 in Delhi. The women have accused a Saudi diplomat of rape and torture while they were working in his home at Gurgaon. Sushil Kumar/ Hindustan Times/ Getty Images
29 September, 2015

On 7 September 2015, two Nepalese women, aged 44 and 30, were rescued from an apartment in Gurgaon, where they had been held hostage for four months. These women had left Nepal in search of better prospects. One of them had lost her home in the earthquake that devastated the country in April this year, while the other, a divorcee living with her daughter, had no regular source of income. According to a report published in the Indian Express, a placement agency in Delhi “sold” the two women to a Saudi Arabian diplomat, Majed Hassan Ashoor, who initially hired them as domestic help. “Both these women were promised salaries of up to Rs 30,000 a month working in Jeddah [in Saudi Arabia],” a police officer in Delhi told the Express. Ashoor first took them to Jeddah for 15 days and later brought them to Gurgaon. He then confined the women to his Gurgaon residence against their wishes, and allegedly subjected them to sexual assault and torture regularly, going so far as to “offer” them to his guests. Ashoor’s wife, allegedly aware of the assaults, did not help them. Their terrible ordeal ended only after the third domestic helper in the apartment, who managed to flee, blew the whistle on their condition. The medical reports later leaked to the media substantiated the victims’ charge of being subjected to repeated sexual torture.

Although this is not the first incident of its kind to taint the diplomatic community in India, the recent revelations sparked a discussion, nevertheless. The debate, however, seems to be oddly preoccupied not with the crimes of sexual assault, trafficking and slavery, but with India’s diplomatic quandary. Much of the recent discourse has circled around the strategic and economic backlash that India might have to face by expelling the diplomat, or even aggressively pressing on its complaint to the Saudi leadership. Rather than waive the diplomat’s right to immunity, the Saudi embassy unsurprisingly lost no time in dismissing the rape charges as fabricated. It further accused the Indian government of violating the Vienna Convention on Diplomatic Relations—the 1961 United Nations treaty that determines the framework of diplomatic relations, and is followed by much of the world.

Article 29 of the Vienna Convention states that “the person of a diplomatic agent shall be inviolable,” and that “he shall not be liable to any form of arrest or detention.” This immunity is prompted by the principle that diplomats should be able to focus on their work without any fear or intimidation on foreign soil. Its objective to was to protect diplomats, particularly, in times of international conflicts. It is an aspect of the treaty that continues to be debated. In April 2011 for instance, 50 years after document was signed, The Guardian noted, “It [the treaty] also gives almost unlimited immunity to diplomatic agents. It is a bit embarrassing to be reminded of that.” The report went on to add that, “It was the Vienna convention that in 1981 protected a young hotheaded diplomat by the name of Moussa Koussa, who publicly approved the planned assassination of Libyan dissidents. Investigations into this situation were never going to get very far: as head of the Libyan mission, he was immune from prosecution.”

In this case, the question of human rights seems to have lost out to the calculations of the economic and military profit India makes from its convivial relations with the well heeled in Saudi Arabia. The diplomatic jugglery advanced by experts and opinion makers has had a twisted, if not outright immoral, ring to it. It has been repeatedlymentioned that Prime Minister Narendra Modi will soon visit Saudi Arabia—which supplies large quantities of oil to India—in the next few months. In much of the media coverage, the public has beenreminded that the Gulf country hosts almost two million Indian workers. Economically a lucrative partner for India, Saudi Arabia is also an important ally for India from a global strategic and military perspective. That this diplomatic quandary involves not just Saudi Arabia but Nepal as well, has been whittled down to an after-thought, a footnote in the broader narrative.

Human rights violations are often ignored within the governmental framework of what is described as a larger national or strategic goal. For instance, India has never raised its voice against the atrocities committed on ethnic Rohingya Muslims in Myanmar. In the past, it actively engaged with Myanmar’s military junta which is infamous for its human rights violations. Although the present Bharatiya Janata Party-led government has indicated that it wants to deepen its relationship with Nepal, the tiny Himayalan country cannot hope to match the economic might of Saudi Arabia, neither cannot it offer the kind of benefits India stands to gain by allying itself with the Gulf nation.

On 10 September, a representative for the Ministry of External Affairs (MEA) tweeted that  “[The] MEA called in [the] Saudi ambassador and conveyed the request of [the] police for cooperation of the embassy in the case of two Nepali citizens.” The same day, the chief of protocol, Jaideep Mazumdar also reportedly called Dr Saud Mohammed Alsati, the Saudi ambassador and formally requested that diplomatic immunity be waived for Ashoor.

However, by 16 September, less than ten days after this the incident was brought to light, the Ashoor and his family had silently left India and returned home. That the date of their departure is unclear and the government does not seem to have made much effort to stop them has caused it to be the target of much criticism, leading to speculation that Ashoor’s departure was a part of a diplomatic bargain between India and Saudi Arabia. In a press statement made on 16 September, an official spokesperson in the Ministry of External Affairs (MEA) of India made this tepid statement: “We learn that Saudi Embassy First Secretary, Mr Majed Hassan Ashoor, who is allegedly accused of abusing two Nepali maids, has left India. The First Secretary being a diplomat is governed by the provisions of the Vienna Convention on Diplomatic Relations.”

An investigation against the diplomat is underway—a first information report was lodged with the Haryana police the day the women were rescued. A case of rape, sodomy and illegal confinement was registered against the official, albeit without naming him. Given the government’s indifference, however, the probe will likely amount to little more than paperwork. Furthermore, there is also no clarity on why the investigating authorities have not identified the friends of the diplomat who are also accused of raping the two women. This reluctance is particularly surprising given that it is not yet known if these men have a diplomatic shield. The Gurgaon police officials have stated that several persons are visible in the CCTV footage retrieved from outside the diplomat’s residence, and that the victims could identify the men who allegedly sexually assaulted them. The police was to prepare a report after monitoring the CCTV footage and share it with the MEA, if the ministry sought the information. However, a request from the MEA does not seem to be forthcoming. As of 18 September, there have been no futher developments in the case. The victims were taken home to Nepal to a women’s shelter, but their suffering has not ceased; both are reportedly facing trouble being accepted by their families.

According to former Indian Foreign services officer Vivek Katju, immunity for diplomats, though absolute, is of a functional nature. This means that a diplomat automatically loses his or her immunity on leaving the country. “To my mind, investigations should first of all go on—they should not be closed. If the investigations go in the direction of confirming the allegations levelled against the diplomat and perhaps some members of his family—those who enjoy the immunity—then it will be an appropriate case for the or the issue of red corner notices against the diplomat,” said Katju, during a television discussion.

A red corner notice—an international notice issued by the Interpol that alerts police forces across the world of a pending arrest warrant under a judicial jurisdiction—would declare the Saudi diplomat an international fugitive. “It would be apparent to all countries including Saudi Arabia that he is wanted by India law. We should insist with [sic] all countries if he visits them—is on their territory—we expect that he will be arrested, will be apprehended and proceedings will be initiated to get him back to India,” said Katju.

The dismissal of diplomatic immunity in such cases, although rare, is not unheard of. In May 2012, a New York judge, Douglas E McKeon, rejected former International Monetary Fund (IMF) director, Dominique Strauss–Kahn’s claim to diplomatic immunity after being charged with the sexual assault of a hotel housekeeper, Nafissatao Diallo. Strauss-Kahn had been arrested in 2011 following the charge. Although Strauss-Kahn’s lawyers argued that his diplomatic immunity at the time of the alleged crime protected him from persecution, McKeon dismissed these claims. According to a report in The New York Times, in his judgement, McKeon further quoted an IMF document advising its officials that “they enjoy immunity from the judicial process only in respect to their official duties.” In December 2012, Diallo and Kahn reached a settlement, the amount of which was cited as confidential.

When a diplomat is accused of a crime, the rhetoric of the arguments made by governments is often based on nationalism. Interestingly, such a nationalism works at two levels: when the diplomatic fraternity from a government’s own nation violates laws in another country, nationalistic principles are invoked to bail out their compatriots. However, the very same governments that aggressively uphold principles of national sovereignty and pride as absolute and non-negotiable, suddenly fall silent when they have to deal with rogue diplomats.

Take for instance, the different ways in which India handled its nationalism in the case of the Saudi diplomat, as opposed to an earlier case involving Devyani Khobragade. In December 2013, Devyani Khobragade, a deputy consul general at the Indian consulate in New York, was arrested for alleged visa fraud. She was also accused of reneging on her commitment to pay her domestic help as per the minimum wage laws of the United States of America. As a diplomat in the consulate, Khobragade was also governed under the Vienna Convention, which only provided her limited immunity. The Indian government transferred Khobragade to the permanent mission of India to the UN, which enjoys embassy status—and therefore, full diplomatic immunity. Later, she was transferred to the External Affairs Ministry in Delhi. In stark contrast to Ashoor’s case, in which the principle of national sovereignty was given a quiet burial, India vigorously invoked the same to ensure that Khobragade did not have to abide by the US minimum wage laws.

The writ of diplomatic immunity, leveraged often and widely as a fig leaf to hush up serious crimes and let the guilty walk scot-free, has once again served as impunity. This bears striking resemblance to the case of Indian diplomat Anil Verma, who in 2010 had to be removed from London following charges of domestic abuse; and before that, in 1981, in the case of Carol Holmes, a New Yorker who was raped by the son of a Ghanian diplomat. The fear of law that is intended to, at the very least, deter crime, is conspicuous by its absence in the behaviour of these errant diplomats. It is true that the doctrine of immunity does indeed constrain governments—not just in India but globally—from actively prosecuting diplomats incriminated in crimes. But this explanation is hardly enough to justify inaction, or to stop the MEA from using sronger language to denounce the crime and from exploring alternative mechanisms without contravening diplomatic convention.

A disturbing pattern emerges from these instances: powerful diplomats have wielded their immense authority on poor, working women, victimising them either through assault or economic deprivation. The Indian government never tires of telling us how committed it is to protecting its citizens, particularly women from violence, but in the form of advertising gimmicks—often through heavily-marketed social media campaigns—rather than through corresponding action. By shying away from these hard questions in its handling of such cases and focusing only on legal technicalities such as immunity, the government runs the risk of ignoring the larger structural causes that underlie a culture of elite impunity.

Monobina Gupta is a senior journalist and author based in New Delhi.