As the news gather storm over a Saudi diplomat facing allegations of rape and assault by two Nepalese women, we thought of demystifying the concept of diplomatic immunity, its different variants and international obligations governing it.
Diplomatic immunity is a form of legal immunity to ensure that the diplomats are given safe passage. The diplomats are not prone to legal case/prosecution under the host country’s laws.
Now, the obvious question arises, what is the need for such kind of immunity?
Because this helps the Diplomats to perform their functions without fear, threat or intimidation from host country. You would have guessed this as well, right? Heh. So the budding IFS officers have something to look forward! Roam freely in a country *like a boss*! But let’s look over to some sober aspects of this provision.
Diplomatic Immunity is classified under 3 heads:
#1. Embassy
An embassy is a primary diplomatic presence established by one country in another that it recognises.
- The chief official posted here is Ambassador
- It is usually situated in the capital city
- There is only one embassy per foreign country
Immunity: The diplomats along with their family members enjoy complete immunity. The administrative and technical staff, who are posted at embassy, receive immunity along with their families. This kind of immunity is inviolable. It is governed by The Vienna Convention on Diplomatic Relations.
#2. Consular/Consulate Office
- It is generally located where many of its citizens live or visit.
- The purpose is to provide government services to individuals living in a country where consulate is located.
<And now you would be thinking, if there is already a embassy for this, then why do we need it all!>We will try to understand with an example, that is, if millions of Indians are living in US, then would it feasible for all Indians living in different parts of US to visit Washington <where the Indian embassy is located> to avail services like renewing passport, or any other assistance. No right? Similarly, if American citizen who is willing to visit India will have to get their visa by visiting embassy. Wouldn’t it be difficult for Indian’s as well as American’s?
That is the reason, India has multiple consulate offices at US. Now, let’s move on to the kind of services a Consulate provides?
- Issues visas to foreign nationals
- Issues and renews passports for its own citizens, living in a foreign country
- Assists its citizens travelling abroad with issues of marriage, divorce, adoption, legal emergencies, etc.
IFS probables might be wondering about the immunity clause for such offices
Immunity: Diplomats posted at consulate gets immunity, except for charges of serious crimes, if a warrant is issued. However, there is no diplomatic immunity for the family. This is also governed by The Vienna Convention on Consular Relations.
#3. International Organisations
Some countries would have missions in international organisations. The diplomatic immunity then depends on the status provided by the country, whose mission is located at other country. For instance, India has a permanent mission at United Nation. It enjoys the status of embassy. Therefore, all the immunity of an embassy applies here.
<Now, starts the journey for the recent controversy, the most awaited thing for the stalwarts>
So, what are the conditions when the immunity can be waived?
Officially, the home country can waive immunity, when the official has committed a serious crime, unconnected with their diplomatic role.
However, it is discretion of the home country to decide whether it wants to waive it or not. Alternatively, it can also prosecute the individual in their own country.
Won’t it be better if we explore what Vienna Convention at this point of time?
The diplomatic immunity cannot be violated, unless the country that has posted the diplomat waives it off.
It also says that the diplomatic residence of a diplomatic agent shall enjoy the same status <protection> as the premises of mission. <Recently, the Gurgaon police violated this clause and entered the residence of Saudi diplomat to rescue the two Nepalese women.>
I hope, if you are able to remember the curious case of Devyani Khobragade. Hope you could recall that! let’s bring that in this big picture now.
She was posted as a deputy consul general at the Indian Consulate in New York. Since, she was posted in a consulate, she was governed under the Vienna Convention on Consular Relations, which provided her limited immunity. This led to her arrest and strip searched for alleged visa fraud, violating domestic laws of US.
And later on, as you would remember, the Indian govt. transferred her to the Permanent Mission of India to UN, which enjoys the status of an embassy.
Hope, it clears the grey areas present in the diplomatic immunity!
Published with inputs from Pushpendra
