Diplomatic impunity

The Gurgaon episode involving a Saudi diplomat’s alleged slave-like exploitation of two Nepalese ladies raises multiple questions about the immunities of diplomats as indeed the very notion of human enslavement and its history amongst Arabs of the Gulf and now manifest in Iraq and Syria in the conduct of the Islamic State of Iraq and Syria (ISIS).

On human slavery, if the colonial past is included, then the hands of all the major Western powers are sullied. Despite the abolition of slavery in the United States over 150 years ago, actual emancipation was a painfully gradual process, reaching some kind of closure with the election of Barack Obama — an African American — as the US President. It is also accepted by analysts that any “hyper-literal” reading of the scriptures of Judaism and Christianity can find justification for slavery. But such reading would be immediately condemned in a modern context as anachronistic and outright wrong.

Unfortunately, sexual enslavement and exploitation of abducted females belonging to another religion has found new practitioners in the ISIS, if not lurking approval amongst radicalised fringes in other Islamic nations. After attacking Yazidis, a miniscule non-Islamic minority, they captured around 5,000 women in August 2014 at Mount Sinjar. Since then, accounts of escapees have revealed unprecedented depravity shrouded in false religiosity.

However, the problem in a lesser form has been chronic to the Gulf Cooperation Council (GCC) countries since migration of labour began to those countries in the mid 1970s. Today there are almost 25 million migrant workers in the six GCC countries, constituting almost a third of their population. While work opportunities undoubtedly benefited the large masses of people of South and East Asia economically, work conditions have often been a cause for concern. At its root lies an unequal relationship between the employer and worker created by a sponsorship system that gives the former rights almost akin to those of a slave owner of the past, restricting mobility in the labour market and full control over termination and exit visas. Though some reform has been undertaken in recent years, the conditions are far from compliant with International Labour Organisation Convention No. 189, Article 7, prescribing minimal contract conditions for domestic workers.

Female workers have been particularly vulnerable in these countries as labour courts are usually chary of examining the work environment in the homes of locals. Because of incessant complaints, India in the mid 1990s adopted a stricter regime for the emigration clearance of maids. As joint secretary in charge of passports and consular matters, I visited Kuwait in 1997 and saw battered maids put up in two apartments rented by the Indian government pending their repatriation, as their travel documents were withheld by employers. One of the conditions imposed was an age limit excluding younger women, assuming that older women were less likely to be sexually targeted.

The Paris-based Committee Against Modern Slavery estimates that in a recent two-year period there were 135 reported cases in Western countries of sexual misconduct/rape by individuals enjoying diplomatic protection. Largely, culprits escaped criminal prosecution utilising Article 31 of the Vienna Convention on Diplomatic Relations of 1961, despite Article 41 imposing a duty on the incumbents to abide by local laws. Rarely have bigger nations waived the immunity of their erring diplomats. The host nations could at best get the diplomat recalled or, failing that, order his expulsion.

While there has been debate on amending Article 31 particularly when a diplomat commits a heinous crime while not in conduct of his duties, status quo persists. The reason is self-evident, as some countries may start using trumped-up cases against diplomats of a country they have a score to settle with. The diplomats may also get entrapped and blackmailed with prosecution withheld conditionally. One can think of at least two countries in India’s neighbourhood that may so act without remorse.

There is even a sensible proposal for an international tribunal to which such cases of misconduct or suspected criminality could be referred. However, it is impossible to imagine major powers ever conceding control to even an ostensibly independent arbiter. The question arises as to what sensible solution can be found to the current imbroglio involving the Saudi diplomat who is alleged to have acted with wanton bestiality and callousness. Saudi Arabia must offer to join the investigation and, if convinced of the truth of the charges, agree to themselves prosecute the individual and his co-conspirators and compensate the victims. They may not do so fearing that this may create a precedent that could haunt their ruling family members, who have in the past been guilty of maltreating domestic staff while abroad.

Caution is also in order because every charge may not be entirely true. Indian and other developing country diplomats have discovered in recent years that their domestic staff, in developed countries, have been more prone to claim mistreatment, often incited by NGOs and tempted by an opportunity to get asylum. Not every Indian diplomat may be without blemish, nor is abuse of servants rampant as complaints may seem to indicate. That aside, when abuse of the nature alleged by the Nepalese maids is in question, no nation must throw the blanket of immunity over the case. Clearly, in today’s networked world medieval practices and old immunity arguments need a closer look. The Saudis have an opportunity to show that they are different from the ISIS by joining the inquiry. Otherwise, the suspicion will persist that what ISIS does blatantly, some amongst the Saudi elite have no compunction doing privately.

The writer is a former secretary in the external affairs ministry. He tweets at @ambkcsingh