How diplomatic immunity protects accused criminals

In 1967, Burma’s Ambassador in Sri Lanka, Sao Boonwaa, confonted his wife Shirley, who he believed was having an affair. Their neighbors in the Cinnamon Gardens suburb of Colombo heard gunshots early in the morning.

Later that day, a potent smell wafted from the Boonwaat home. Neighbors saw three Buddhist monks conducting final rites over a funeral pyre. The envoy was arrested, and at first even denied bail, but he invoked diplomatic immunity, and a senior official was dispatched by the Burmese regime to argue for their ambassador’s release. Sao Boonwaat returned to Burma a couple of months later, never to face trial for the killing of his wife, according to Singapore’s Straits Times.

Since then, few crimes committed have been as egregious, but foreign diplomats still continue to evade arrest and prosecution for alleged crimes as they furtively board flights back to their countries against the backdrop of local outrage and strained diplomatic relations.

Last week Majed Hassan Ashoor, the first secretary at the Saudi Embassy in Delhi, left India hounded by allegations that he held captive, beat, and repeatedly raped two Nepali women he was keeping in his home as domestic workers. Police stormed the residence, which was not located in the embassy, to recover the two women. Doctors treating the victims said they suffered extensive injuries.

The incident sparked outrage on India’s television news channels as crowds gathered on the streets to call for justice. Civil society activists and political parties in Nepal echoed the protestors’ concerns. They urged India to stand by their citizens and act against the Saudi diplomat. But on Sept. 17, the Indian government confirmed that Ashoor was protected by diplomatic immunity. Under the Vienna Convention, there was little that could be done.

The tradition of diplomatic immunity stretches back to ancient Rome. In the 12^th century, during the Crusades, Saladin, the founder of the Ayyubid dynasty, and Richard Coeur de Lion, the King of England, could dispatch emissaries borne with messages for the enemy without fear that they would be harmed. In 1790, the U.S. passed a law that gave absolute immunity to diplomats, families, servants and lower ranking officials at foreign missions.

In 1978 a new law, the Diplomatic Relations Act, which accepted the Vienna Conventions on Diplomatic Relations, replaced it. There are two main conventions, one pertaining to diplomats and the other to consular officials. Diplomats cannot be arrested or made subject to the jurisdiction of the courts and other authorities, for both their official duties and personal activities. The convention on consular officials only covers their official activities.

Schona Jolly, a London-based international human rights lawyer, said of the case of the Saudi diplomat who fled India recently, “It is difficult to see how rape, forced servitude or other serious crimes contribute to the efficient and official performance of a diplomatic mission. The provisions are plainly antiquated and not fit for purpose in a modern era.”

The second convention has been the subject of two of the most dramatic diplomatic incidents in recent years, pitting the U.S. against India and Pakistan. In December, 2013, Devyani Khobragade was working at the Indian consulate in New York when she was arrested for employing a maid at below minimum wage, and in January2011, Raymond Davis, a CIA contractor, shot dead two men in Lahore he said were trying to rob him.

The Khobragade arrest came after her maid reported her to local authorities. Preet Bharara, the high-profile U.S. Attorney for the Southern District of New York, pursued the case, charging her with visa fraud and making false statements. The Indian government, prodded on by a vocal local media and political opposition supportive of Khobragade, was locked in a month-long standoff against U.S. authorities. Bharara, who was born in India, was accused of betraying his origins, while communication between Delhi and Washington was put on pause.

Delhi first insisted that Khobragade was a diplomat and should be treated as such, but her status as an employee in the New York consulate, rather than the embassy, meant that only her official duties were covered. The same applied to Davis, who was listed as a member of the technical staff at the U.S. consulate in Lahore. “Killing people or not paying your maid doesn’t count as official activities,” a former ambassador to the U.S. said on condition of anonymity.

In both cases, there were unsuccessful attempts to retroactively grant diplomatic immunity. Pakistani authorities were notified only the day after Davis’ arrest. Controversially, President Barack Obama publicly claimed that Davis was “our diplomat.” Later, it emerged that he was neither a diplomat, nor covered by diplomatic immunity. He was charged with double homicide and possession of a firearm and tried in a Pakistani court, where he apologized to the victims’ families. The charges were dropped after a Pakistani businessman paid $2.3 million to the families to settle the dispute, U.S. and Pakistani officials said on condition of anonymity.

Ultimately, Khobragade and Davis were expelled from the countries where they were stationed. Diplomats can only serve abroad at the sufferance of the host government. Where diplomatic immunity applies, expulsion is one of the few levers at the disposal of the country’s ministry of foreign affairs. The only way to try a diplomat alleged to have broken the law is to ask their home country to waive diplomatic immunity — something that has occasionally happened where egregious crimes were committed. In 2002, two Colombian diplomats in London had their immunity waived to face charges related to a murder outside a supermarket.

When Khobragade returned to India, she was hailed as a national hero. Davis had no warm welcome, and, a few months later, was arrested in Denver for assault. He had been working as a “firearms instructor.” John Kerry, then a senator who mediated the deal with the Pakistanis, had promised that Davis would be subject to a criminal inquiry in the U.S. for killing the two men in Lahore, but he was never charged. For India and Pakistan, postcolonial states wary of being bullied by the West, the diplomatic standoffs provoked national furies that were not placated by the legal niceties of the Vienna conventions.

Diplomatic immunity is aimed at enabling representatives of foreign countries to carry out their jobs without being blackmailed or impeded, or subject to an unfair trial in a hostile country. Diplomats are expected to fully comply with the laws of their host countries. “It’s not a license to go crazy,” said a U.S. diplomat who spoke on condition of anonymity.