No One's Above The Law

I am indeed extremely upset that a special correspondent of Outlook was assaulted by Leila Abdaoui, wife of Abselhamid Abdaoui, counsellor of the Algerian Embassy, in New Delhi, on February 16. For, though there are differing versions of the brawl, the fact is Leila Abdaoui did assault Ms Sagarika Ghose and abused Indians as a whole. And it's time the Indian public is made aware of an unpleasant aspect of diplomatic behaviour, Indians included—when they take their special status for granted. It's my duty to inform the people of the possible remedies too.

What intrigues me is the fact that the police did not even register an FIR because Abdaoui has "diplomatic immunity". It would be pertinent, therefore, to separate the myths from the legal realities regarding the concept and implementation of diplomatic immunity.

First, why are ceremonial privileges and immunities accorded to diplomats? The primary reason is that diplomats represent their governments and these privileges and immunities are accorded to them not personally but as representatives of their governments and their peoples. Second, the privileges and immunities are accorded to them so that they can deal with the highly sensitive and complex issues involving relations between their countries and the country in which they are posted—without political interference and without any possibilities of coercive pressure or interference of any kind. Third, the special status is granted to them so that they can be as objective as possible in their assessments without being apprehensive of any kind of personal maltreatment in the country where they are posted.

These privileges, broadly speaking, surround the diplomat and his family, his communications, his premises, official and residential, his files and his archives. Diplomats are also entitled to jurisdictional immunities, civil, criminal and in relation to automobile accidents, tax and customs exemptions, etc. These immunities and privileges originated in one of the Agreements signed at the Congress of Vienna in 1815, known as the "First Vienna Reglément". The second Vienna Convention articulating the privileges and immunities for diplomats titled "Vienna Convention on Diplomatic Relations" was finalised in 1961 and came into force in April, 1964.

The point to remember, however, is that these immunities are not granted as sovereign and unqualified endowments to diplomats. They are granted only to provide them a secure environment to perform their complex and varied functions. Second, the diplomats are obliged to abide by the rules and regulations of the local laws of the country where they reside. There is an imperatively reciprocal obligation on the part of diplomats not to indulge in criminal activities or disrupt the law and order. If any diplomat violates these obligations deliberately, the local authorities have every right to take preliminary legal action—take cognizance of the crime committed and inform their own Foreign Ministry of the misconduct.

The Ministry of External Affairs (MEA) is then supposed to approach the embassy concerned, inform them of the violation of law, and ask the ambassador either to waive the immunity of the person concerned so that legal action may be taken against the individual. The other option: the ambassador is, and should be, asked for an assurance that the person would be sent back and tried for the offence in his home country. Declaring somebody persona non grata is an extreme step. Embassies of countries with diplomatic traditions and a sense of responsibility either waive the immunity of the member of the embassy who has committed an offence, or give an assurance that the person will be prosecuted back home.

Mentioning the names of embassies and individuals would be invidious, but there have been more than one case in India, of which I have personal knowledge, where either the immunity of an offender has been waived or an assurance has been given of prosecution—and, of course, he has been sent back home. This is what the Vienna Convention and International Law generally require, specially when the offence is cognizable under the criminal law of the country of posting.

So, the Delhi Police authorities didn't do the right thing by refusing to take cognizance of the assault and registering an FIR. They should have taken note of the offence and reported the matter to the Ministry of External Affairs through the Delhi government—thus helping the ministry to take action. The reported statement of Nareshwar Dayal, MEA secretary (east), that "appropriate action would be taken", presumably means this is what will be done.

During my foreign postings in government service, I have also had several occasions to waive the immunity of some members of my staff for criminal offences—of course with the approval of the government of India. I had them promptly sent back to India where legal action was taken against them. What is worrisome is that foreign employees of embassies apart, even local Indian recruits are inclined to arrogant misbehaviour. Specially the Indian drivers of diplomats who have a mistaken belief that they are a class apart. Diplomatic immunity does not extend to local recruits of foreign embassies in any country. Embassies here would do well to take note of this fact.

As for the behaviour of the Algerian lady, one can only conclude that she suffers from some kind of violent manic depression with schizophrenic  tendencies. She beats up people, including her husband, offers an apology to the person she has offended—in this case Ms Ghose—and then spits on her car.

The Algerian ambassador would be well advised to send the counsellor and his wife back home and provide medical treatment to Leila Abdaoui. I do sympathise with the Algerian ambassador who has had to face an embarrassing situation vis-a-vis the government of India. I also feel sorry for the Counsellor of the Algerian embassy because Leila Abdaoui was impartial in committing violence. Not only did she beat up Ms Ghose but thrashed her husband too.