Two Nepalese women, on 9th September 2015, were rescued by the Indian police from a Saudi diplomat's flat in Gurgaon, India. The authorities are investigating the allegations that the Saudi diplomat, identified as Majid Ashoor (The Indian Express), imprisoned and repeatedly raped the maids who worked in his home. The rescued victims - aged 44 years and 20 years - according to the media, were held against their will in the Saudi diplomat’s residence for months, denied food and water, beaten and repeatedly raped (The Guardian). Findings of the medical tests, performed twice, establish a credible case against the Saudi diplomat and the reports provide strong proof of the brutality the two had to suffer (Indian Express). The statement from one of the survivors “If we resisted, the diplomat and his family would threaten to kill us and dispose of our bodies in the sewer", shows the unimaginable brutality that these women had gone through for several months (CNN). Recent investigation reports and the CCTV footage highly project towards possibility of them being sexually assaulted by over 20 men over a period of time (Times of India), a horrific and most in-humane incident. The case essentially highlights plight of migrants from Nepal and it has serious impacts on the international law and diplomacy.

Both women come from remote rural parts of Nepal and were sent to Jeddah, Saudi Arabia as domestic servants by human traffickers - were first flown into New Delhi by a Nepali agent and then flown into Jeddah, Saudi Arabia, by an Indian agent - before returning to Delhi with their new employer where they were kept in captivity at the diplomat’s apartment, NGO workers assisting the pair said (Maiti Nepal, The Kathmandu Post & The Guardian). Such networks send thousands of girls and women to India from Nepal, and hundreds at least to the Gulf, every year. This also applies to other countries in the region, including Bangladesh, Sri Lanka and so on. Whilst the Governments in South Asia, NGO workers, Civil Societies and Activists have been trying to address this most inhumane phenomenon for a long time, this incident further complicates this with the predicament if the Diplomatic residences being used as place for human trafficking, rape, inhuman treatment and torture in the present time; what and how could/should be response from the international community of civilized states?

As a diplomat, the Saudi man, who has been now identified publicly as Majid Ashoor, has immunity from criminal prosecution (NY Times), but may be expelled if the Indian government finds the allegations substantiated. “We are afraid the two Saudi diplomats charged of sexual exploitation will escape punishment on the basis of Vienna Convention and wrote a letter to the embassy drawing its attention towards the heinous crime its diplomats committed and to ensure they are rightfully punished,” said Rachita Dhungana of the Women Rehabilitation Centre (The Kathmandu Post). But we strongly believe that on the Human Rights perspective and International legal frameworks, the diplomatic immunities against arrest and detention of diplomats established by the 1961 Vienna Convention on Diplomatic Relations does not, in anyway whatsoever, allow diplomats to take ordinary fellow humans to be held hostage, raped and tortured them. And, under the current state of international law, diplomatic immunities are not above the higher international legal norms. These norms encompass certain overriding principles of international law, especially known as jus cogens, which establishes that no state may derogate these principles by way of treaty, which is generally restricting the freedom of states. This kind of restriction was codified in Article 53 of the 1969 Vienna Convention on the Law of Treaties.

India has stringent anti-rape laws, according to which the defendants are taken into custody immediately on the basis of a police complaint. But the global convention for diplomatic relations grants immunity to diplomatic agents from the criminal jurisdiction of host nations (CNN), which has always been questioned when it comes to serious human rights violation and crime, such as rape. However, given the relationship between India and Saudi Arabia, it compels India to ensure that they stand for their National & International Laws/Commitments and do some deft diplomacy so that India’s commitment towards women’s rights and human rights are not trampled upon (Indian Express).

As a responsible member of international community, the Indian government is bound by these higher norms of international law, e.g. rescuing and protecting the two women and taking necessary legal actions, excluding diplomatic immunity of the Saudi diplomat. Also based on the higher norms, the Saudi government has the responsibility to allow the accused diplomat to be questioned by the Indian police & authorities, helping the investigation with or without withdrawing the diplomatic immunity. By doing so, the Kingdom of Saudi Arabia will help itself to elevate its terrifying image (DailyO). Also India, Saudi Arabia and other State, including the international community, should & are bound to follow the CEDAW Convention (1979), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Vienna Declaration on the elimination of violence against women in public and private life (as a human rights obligation) & and Programme of Action (1994), the Declaration on the Elimination of Violence against Women (1993) and the SAARC Regional Convention of Human Trafficking (2002) and their spirit towards Women’s Human Rights and addressing any forms of violence against women and girls.

The higher norms are generally applicable, whether it is war or peace times, and takes priority over the 1961 Convention on Diplomatic Relations, because diplomatic immunities are based on “reciprocal compromise rather than on a necessarily desirable rule deriving from some higher source”.  Breach of the higher norms concerns the whole international community, while the diplomatic immunity is based only between the sending and receiving states. The international obligations, known as ergaomnes, are obligations of states towards the international community as a whole. States are bound by these norms when it comes to dealing with the crimes against humanity.

In the Foca rape case, the International Criminal Tribunal for the Former Yugoslavia, recognized rape as crime against humanity and international humanitarian law. Pursuant to Article 7(1)(g) of the 1998 Rome Statute of International Criminal Court (ICC), “[r]ape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” constitutes a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (ICRC). In accordance with the higher norms, the Indian authority has the right to arrest and prosecute the accused of the crimes against humanity, whether an accused is a diplomat or an ordinary person; “diplomatic agents are not above the law; on the contrary, they are under an obligation to respect the laws and regulations of the receiving State” (see, Dickinson v. Del Solar, King’s Bench Division, 1 K.B. 376, 1930). With the prima facie evidences, the Indian authority has legal right to arrest the Saudi diplomat. In fact, in a case of Italy’s refusal to return two marines charged with murdering two Indian fishermen, the Supreme Court of India (2013) has ruled that “Italian ambassador does not have legal immunity”, which could be applicable to the Saudi diplomat. However, given the fact that Saudi Arabia is the biggest supplier of oil to India and hosts more than 3 million Indian workers (BBC), the larger legal question of this saga is if the Indian government will continue, till the end, to stand by its position as per the norms of international law, or give in to the diplomatic immunities asserted by the Saudi officials.

We, through this initiative, would like to express our solidarity and praise the Government of India for its steps and for standing by the higher norms of international law and humanity. We appreciate GoI’s stance to return the diplomat from India and if not the Indian government’s readiness to declare him persona non grata and expel him. We look forward to Government of India meeting up to its standards of human rights and follow the Rule of the State.

We, this initiative, would like to express extreme sadness over the way the Saudi Embassy has been protecting the alleged diplomat and not allowing him to be arrested for further investigation, according to the State Legal Frameworks. We would like to pledge the Kingdom of Saudi Arabia and its embassy to respect the international human rights norms and instruments and agree to allow proper investigation against the diplomat. If found guilty, the diplomat should be punished as per the international human rights laws for the crime against humanity. Further, he should be restricted to be in such a prestigious position that may bring harm to the Kingdom’s reputation.

We, the initiative, would like to request the Government of Nepal to take necessary steps to support, collaborate with India and put in efforts to ensure human rights and justice is provided to the Nepali survivor women. The Government of Nepal should enter into diplomatic dialog with the Saudi Embassy and relevant authorities to pressurise the Kingdom of Saudi Arabia to take necessary actions against the alleged diplomat at the embassy in New Delhi. In addition, we urge the Government of Nepal to provide the survivors appropriate services required for getting out of the trauma and rehabilitation – to both the women and their families.

We, the initiative, would like to request all the NGOs, Women’s Rights Organisations, Human Rights organisations and Human Right defenders/activists, in Sweden and abroad, to support with solidarity for this noble cause, and build an international civil society coalition against such heinous crime against humanity and sexual violence, and ensure human rights of these two Nepalese Women.

We, the initiative, would like to call upon to the United Nations (UN) to take necessary political steps and negotiations with the Kingdom of Saudi Arabia to take necessary actions against the alleged diplomat for the crime. We also would like to request the UN to support the Government of India and Government of Nepal to pursue this diplomatic and legal battle for humanity and human rights.

We, the initiative, would like to call upon the International Court of Justice to render its legal actions against the alleged diplomat for the crime against humanity as per its statute.

Thanking you all in advance for all the support you offer to this cause.

May Human Rights prevail in the world!

Sweden-Nepal Solidarity and Justice Initiative