Geopolitical complications, diplomatic immunity: Saudi diplomat accused of rape in Gurgaon may go scot-free

The Gurgaon Police on Wednesday filed a case against a Saudi Arabian diplomat and ‘unknown persons’ under Sections of gang-rape (376 D), rape (376), unnatural sex (377) and other sections of Indian Penal Code including 342, 323 and 120B (conspiracy). The Ministry of External Affairs has already sought a detailed report from the police.

But there are many problems before the police can proceed in the case. And if the plight of the Southeast Asian women allegedly enslaved by a Saudi diplomat in London in 2011, and  two Filipino women rescued from the home of a Saudi diploma t in Washington in 2013 is anything to go by, it may not be a smooth path for the Indian police ahead.

First, there’s the legal side.

“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).

On paper, article 41, paragraph 1 of the 1963 Vienna Convention on Consular Relations looks self-explanatory enough. But its implementation is rarely as simple.

For instance, the 2013 arrest and strip-search of Indian deputy consul-general in New York, Devyani Khobragade on the grounds of alleged visa fraud violated her diplomatic immunity, and somehow implied that she had committed a grave crime.

But, two years earlier, the US had invoked diplomatic immunity to have Raymond Davis — widely believed to be a CIA contractor — freed and returned to the US at once from Pakistan. In fact, President Barack Obama invoked diplomatic immunity under the Vienna Convention and demanded the release of the “diplomat”. His crime? Killing two Pakistani men in broad daylight in Lahore.

Clearly, what constitutes a ‘grave crime’ and what doesn’t, is open to interpretation and problematic at best.

Additionally, as per article 31 of the 1961 Vienna Convention on Diplomatic Immunity , there are only three circumstances under which diplomatic immunity does not apply: action relating to private immovable property, action relating to succession and estates, and action relating to any professional or commercial activity outside official functions.

Rape, as it turns out, is not among these.

Second, there’s the geopolitical side.

India and Saudi Arabia share cordial relations. Apart from the fact that Saudi Arabia is India’s second largest supplier of crude oil and its fourth largest trade partner (bilateral trade reached nearly $40 billion in 2014-15), it is also home to a sizeable diaspora of over 2.5 million Indians.

The year 2015 was set to be Prime Minister Narendra Modi’s breakout year in West Asia. A visit to the UAE already under his belt, and a proposed high-profile visit to Saudi Arabia  is on the cards ‘in the coming months’. The significance of this visit will be three-fold — energy security, investment and security. The third of these factors is likely to be crucial given Riyadh’s closeness to Islamabad.

The case against the Saudi diplomat comes at a delicate time for India-Saudi relations, given that seven Indian nationals are still believed to be missing in an air-strike in Yemen carried out by a Saudi-led alliance. But, with a recently-signed defence agreement  and Saudi Arabia’s extradition of 26/11 plotter Abu Jundal in 2012 (not to mention those who were brought back covertly to India through less orthodox means), New Delhi is unlikely to upset the apple-cart by pushing Riyadh too hard on the prosecution of the diplomat, the gravity of the crime notwithstanding.

Third, there’s the added complication of nationality.

The alleged crime occurred in India, and has been charged under the Indian Penal Code. However, with the alleged perpetrator being a Saudi national and the victims Nepali, a spanner may have been thrown into what is already a complicated situation.

While Nepali nationals have often faced hardships in India, this particular case could blow into a three-way diplomatic crisis if not handled sensitively. The Indian MEA is likely to push the Saudis to waive the diplomat’s immunity, but this is likely to be in vain. What is more likely is a situation that sees Riyadh recall the diplomat in question and administer internal punishment.

Either way, India-Nepal relations are unlikely to be affected, However, if India displays laxity in pursuing the case, it may just provide protestors in Nepal — presently railing against the draft of the new Nepali Constitution — with another issue with which to generate anti-India steam.

Lastly, there is the nature of the case itself.

The allegations are undoubtedly serious. However, given the context of India-Saudi relations which would preclude New Delhi from exerting too much pressure on Riyadh, any consequences are likely to be faced by the diplomat back in Saudi Arabia.

Under Sharia Law however, rape is classified under Hudud cases — considered crimes against God — and interpreted as adulterous sexual intercourse between unmarried people. The only problem is that the law prescribes an inordinately harsh punishment on women, while the man cannot be considered guilty unless he confesses or is witnessed in the act by at least four adult Muslim men.

Interestingly, sodomy — for which the diplomat has been charged under section 377 of the IPC — carries a far harsher sentence in Saudi Arabia.