Truth, Justice and Protocol

January 20, 2011

http://asiasecurity.macfound.org/blog/entry/111truth_justice_and_protocol/

This long post disentangles the web of questions raised about gender and international relations following the allegations of domestic violence made against a diplomat.

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A quiet afternoon in a quiet London neighbourhood is shattered by the sounds of a scuffle and screams. A woman seems to be in distress, and when she emerges, neighbours see that she is bruised and bleeding. The police investigates but they run up against a wall built to protect the messenger from the arbitrary actions of her/his host: diplomatic immunity.

This incident which occurred on December 11, 2010 but which made news headlines more than a month later has once more pointed to the murky equation between gender justice and international relations.

The British authorities requested that the Indian diplomat’s immunity be revoked. The Indian government refused. The High Commission spokesperson was quoted as saying: “We are carefully looking into the incident. It involves sensitive and personal issues pertaining to individuals. It is premature to make any further comment at this stage. It is now expected that this matter will be resolved between husband and wife It is to their mutual satisfaction.” It took a month but the diplomat has finally been recalled, along with his family. The catch is that in the interim, his wife has disappeared along with their son.

Binay Singh & Pervez Iqbal Siddiqui, Diplomat Verma’s parents swear by his innocence, Times News Network, January 20, 2011.

The particulars of this story are less important than the issues it raises, and this post tries to disentangle each of these from the knotty discussion that is taking place.

Is domestic violence a lesser offence?

In one of the television discussions last week, a former diplomat kept citing other instances, primarily drunk and reckless driving, where immunity had not been waived so an alleged offender could be tried locally. He went on to say that the incident which has triggered this controversy was just about a Christmas tree, thereby infuriating other panelists. He conceded that had the diplomat been a serial rapist or killer, a waiver of immunity might be considered.

Is domestic violence a lesser offence than all of these? The answer really is no. A drunken driving incident could be an aberration; battery and assault within the family seldom are. There is always a long-term pattern of abuse, and it stems from power-play and the need to control. It does not happen because of a Christmas tree. Or any of the other violence triggers that researchers have found—delayed meals, perceived laziness of the spouse, too much salt, too little salt, etc. In fact, even the Christmas tree story would raise a red flag to those who work in this area: the issue reportedly was that the wife had refused the husband’s offer to buy a tree for reasons of economy but accepted a gift from her relatives, and this offended him. Enough said.

And because domestic violence is seldom a one-off occurrence, chances are the record of abuse and violence would equal that of a serial rapist or killer even though the number of victims is much smaller. So if the number of instances of violence is the threshold that decides whether something is a greater or lesser offence, wouldn’t most domestic violence perpetrators qualify?

How many reported (and unreported) incidents of domestic violence, or other gender violence, are to be tolerated before they attain the threshold required for immunity to be considered?

Is diplomatic immunity never to be waived?

This is not the first time local law enforcement has rued diplomatic immunity. It is actually a regular grievance for police in any city with a large diplomatic presence. The army of UN-accredited diplomats in New York park anywhere and don’t pay fines for it, and it doesn’t take a long stay in the city or any research to hear about it! Abuse of domestic workers who are brought in by diplomats is another issue that human rights activists have been highlighting. This can hardly be the first-ever case of domestic violence reported in the history of diplomacy.

What is diplomatic immunity? International law exempts select officials and representatives of foreign governments from the jurisdiction of local governments and laws; this is called “diplomatic immunity.” The idea was really to protect the messenger: “the channels of diplomatic communication by exempting diplomats from local jurisdiction so that they can perform their duties with freedom, independence, and security.” (See E-Diplomat) The rules for how diplomatic immunity works are set up by the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963. The foreign government may waive immunity and the host government may declare a diplomat ‘persona non grata’ without explanation, so a diplomat really cannot take that status for granted.
Where the conflict arises in this case is actually in the reading of the offence. What we can surmise from the conflict over waiving the Indian diplomat’s immunity, is that while British authorities appear to regard the allegation of domestic violence as a serious enough offence to warrant a waiver, the Indian response has been paternalistic and dismissive. This raises questions about what would happen if the couple returned home to an Indian investigation.

Salil Tripathi, Immunity from Justice, LiveMint.com, January 19, 2011.
IANS, Indian UN diplomat recalled after incident on flight, Economic Times, January 19, 2011.

An Indian investigation

There are two questions that stare us in the face on this count. First, how will the case be tried in India if the evidence and witnesses are elsewhere? Second, what is the track record of gender violence trials in India?

There are probably ways around the first, such as travelling investigation officers who can interview witnesses. Perhaps the British police who visited the site initially can share their evidence and reports.

The harder question is really the second; it’s also an embarrassing question. The number of cases registered under the relevant section of the Indian Penal Code has risen steadily between 2005 and 2009, from 58,319 to 89,546, but when you search for the conviction rate, the numbers vary but there is consensus that the rate is very, very low.

National Crime Records Bureau, “Crimes against Women,” Crimes in India 2009, Delhi, 2010.
Madhu Kishwar, Laws against domestic violence: Underused or Abused? Manushi, Issue 120, September-October 2000.
Rashme Sehgal, Delays do not bode well for Domestic Violence Bill, InfoChange India, March 2006.

The reasons are many—from the reluctance of a family to pursue and press charges even if they filed a complaint in the first instance, to the pressure of the extended family and community to come to a mediated solution, to the lack of evidence. In spite of this very low conviction rate, there are many in India who complain that those provisions of the law that deal with different kinds of domestic violence are actually mostly misused by women to discredit their husbands and marital families.

Furthermore, in recent years, very high-profile cases of sexual assault have had obstacle-ridden investigations, protracted trials and where there has been conviction and sentencing, the handing out of bail so that the perpetrator more or less walks free. A paternalistic streak in many Indian courtrooms has also sought conciliatory and conservative solutions to the uncomfortable reality of gender violence rather than justice. Rape victims are thus advised to marry the person who raped them. Domestic violence victims are apt to be advised to adjust or consider the family or the children.

It is no wonder that even the most nationalistic Indians find it hard to express confidence in the way this system would respond to domestic violence in the diplomatic enclave. Would the bureaucracy bat for one of its boys? Would the weight of the establishment be on the side of ‘adjusting’ and making peace—not for family, not for the kids, but in the national interest?

The inconvenience of taking women’s rights into consideration

Feminists make a lot of people uncomfortable not because they are wrong but because it is so inconvenient to acknowledge that they are right. So much of international order depends on private-public, inside-outside, domestic-international being posited as binaries. Feminist thinking rejects all these binaries. To take issues of gender justice and women’s rights into account, would force a re-imagining of many of the axiomatic premises of world order.

Female genital mutilation and honour killings are not ‘nice’ issues to raise because they reflect a judgment on the traditional practices of other societies. Human rights standards stop short of others’ cultural practices, whoever defines them and however they are defined. The practices that most communities are very sensitive about are, unsurprisingly, the ones that affect women—FGM, sati, honour killings. The material and ideological origins of the practices are never examined in a reverse kind of orientalism because that sort of rationality can neither be expected of the “other” nor is it comfortable for a liberal to grant. It’s just easier to adopt a cultural relativist stand.

It’s easier to pretend that sexual violence and exploitation do not occur in conflict zones, because facing up to that would show that the best-intentioned military training and socialization do not stop the brutality from spilling over into the interpersonal arena. The words of the intelligence officer who once told me that rape was part of the ‘spoils of war’ have never left me. If you face up to the reality of conflict rape, then you have to look closely at the ethics of this and the morality of that and the many definitions of that particular context.

In this instance, if we affirm that violence against women is wrong, then at least while the allegations against the diplomat are being investigated, it must be clear that this person cannot represent India. If he did, what would that say to the world about the status of women in this country? Not something any country would want said.

Acknowledging that violence occurs within more homes than we know and acknowledging that a life free of violence is an inalienable human right, both simplify and complicate the diplomatic universe. Decision-making is simplified because then immunity waiver or recall, investigation and action must follow. But everything else is complicated because when you blur the line between private and public and say that a diplomat—any person—is as responsible to society for what they do in private as for what they do in public, other boundaries blur as well. Why should local jurisdiction not extend to certain people for what they do in their private lives? Should the dependents of those protected by immunity be deprived of the protection to which others in their situation are entitled, both in home and host countries? Should we now look for ways in which to standardize our laws on these problems so that the victim’s rights are not lost in the “we are better than you” tug-of-war between home and host country’s legal systems?

S Kalyana Ramanathan, Britain forced India’s hand to take back diplomat, Business Standard, January 20, 2011.

In 1989, when Cynthia Enloe first published “Bananas, Beaches and Bases” she wrote about the women in garment factories, sex-workers around bases, migrant domestic workers and diplomatic wives as the invisible characters in the stories about international politics. Zooming in further, twenty-two years later, we see not just the characters we first overlooked but the little complications—domestic violence, exploitation, sexual harassment—that were not earlier visible. When we do, we have to make choices: to ignore these realities and pretend the world still looks like our theories or to rewrite the theories to look like the world we now see; to overlook the things our laws do not account for or to change the law to account for them. What choices will we make?

The simplest possible reading

For all this greyness and complexity, the most important question is a very simple one, I think: Is domestic violence a grave human rights issue? I think it is, and all my positions and response follow from this answer. You?