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The Vienna Convention offers diplomats a safe environment while living and working in a hostile country, but as the recent alleged rape case involving a Saudi diplomat in New Delhi shows, there must be a rethink on the protection offered when it comes to heinous crimes like rape and murder.
News reports since September 8th have revealed new horrors that two Nepalese women had to suffer at the hands of Saudi Arabian diplomat, Majid, at his official residence in Gurgaon, a plush suburb of New Delhi. Majid is posted at Saudi Arabia’s embassy in New Delhi, as First Secretary to the Kingdom's Ambassador and is accused of raping, sodomising and physically assaulting his domestic helps for over a month. Majid however, has managed to escape prosecution as his country has invoked diplomatic immunity under the Vienna convention.
Diplomatic immunity is granted on the basis of two conventions, popularly called the Vienna Conventions — the Convention on Diplomatic Relations, 1961, and the Convention on Consular Rel ations, 1963.
The Vienna Convention classifies diplomats according to their posting in the embassy, consulate or international organisations such as the UN. Diplomats posted in an embassy get immunity, along with his or her family members. While diplomats posted in consulates too get immunity, they can be prosecuted in case of serious crimes.
According to the Vienna Convention on Diplomatic Relations, a diplomat cannot be arrested or detained and his house will have the same immunity and protection as the embassy. “Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority” (emphasis added) according to article 41, paragraph 1 of the 1963 Vienna Convention on Consular Relations. They have been ratified by 187 countries, including India.
It is possible for the diplomat’s home country to waive immunity but only in rare cases such as murder or rape. On most occasions, as was the case with Indian Diplomat Devyani Khobragade, the home country chooses to bring the individual home and initiate enquiry.