By Paramjit S. Sahai,
former Indian Ambassador and Principal Adviser, CRRID (India) and Faculty Member, Diplo Foundation.
The issue of diplomatic immunity to the Italian Ambassador in India, arising out of the case of trial of two Italian Marines in 2013, acquires importance, as it is impregnated with far greater international implications, going beyond the legal issue of immunity of a diplomatic agent. It becomes a test case in determining the domain of national sovereignty, when it criss-crosses with international commitments. Diverse views have been expressed, depending upon the understanding of the issues involved and the interpretation of relevant rules, including international conventions.
Prima facie, the order of the Supreme Court in March 2013 raised a fundamental legal question over the diplomatic immunity enjoyed by a diplomatic agent (Ambassador). Was this immunity absolute or there were limitations to the enjoyment of the same. It was not only those legal issues that had to be addressed by the parties involved, the governments of India and Italy, but also their ramifications beyond legal frontier. How would it affect the bilateral relations between the two countries? Would it affect the whole framework of the 1961 Vienna Convention on Diplomatic Relations (VCDR)? Diplomatic immunity is one of the pillars of the VCDR, which respects the principle of inviolability of the person of the Ambassador.
A critical situation had arisen, as the Italian Government refused to honour the undertaking given by its Ambassador to India, Daniele Mancini, in a sworn affidavit before the Indian Supreme Court, ensuring the return of the two marines – Massimiliano Latorre, and Salvatore Girone. These marines were undergoing trial for the killing of two Indian fishermen and were allowed in good faith to leave India for four weeks to Italy, to cast their vote in the national elections. Peeved at Ambassador Mancini, failing to honour the undertaking for the return of the two marines to India, the Supreme Court had given an order, barring him to leave India till April 4, which was the next date for the hearing of the case. The last minute decision by the Italian government to ensure the return of the two Marines on March 22, 2013, resulted in this becoming a dead issue.
The issue of diplomatic immunity had come into sharp focus, with the Supreme Court categorically stating that Ambassador Mancini had subjected himself to its jurisdiction, having sought its refuge. He was thus fully answerable to any counterclaims, as he was now clearly under breach of his undertaking, given to the Supreme Court. He had thus ‘lost trust’ and non-fulfillment of his undertaking before the Court had resulted in his having “no immunity”. The Supreme Court felt that it was competent and within its sovereign right to inflict punishment to the Ambassador, who was barred to leave India. The case had acquired larger political overtones engulfing bilateral relationship between India and Italy. At the Indian end, Prime Minister was forced to make the statement that the Italian behaviour was “unacceptable” and warned Italy to be prepared to face “the consequences”. At the Italian end, it became a domestic issue among different interests, resulting in the resignation of its Foreign Minister. Finally, the Italian Prime Minister took the call to ensure the return of the two marines as he reportedly felt that Italy was likely to be isolated internationally.
Let us, first look at the legal issue of immunity as gleaned through various articles of VCDR. Article 29 categorically states that ‘the person of a diplomatic agent shall be inviolable’. It further adds that ‘he shall not be liable to any form of arrest or detention’. Article 32, however, provides for waiver of this immunity, while further stating that such ‘waiver must always be express’. Apart from this, it recognises that a diplomatic agent could be deemed to have deprived himself of immunity for ‘initiating proceedings’ and he could not ‘invoke immunity’ for any ‘counterclaim, directly connected with the principal claim’.
Seen in the above context, Ambassador Mancini had voluntarily subjected himself to the jurisdiction of the Supreme Court and had thus tacitly accepted the waiver of his immunity and therefore, had to be prepared to face the consequences, arising thereof. The Supreme Court, therefore, was in full right to pronounce its judgement, as deemed necessary by it. Could there be any limitations on the nature of judgement? Article 29 states that ‘he shall not be liable to any form of arrest or detention’. Would the Supreme Court order barring Ambassador Mancini would fall under this category? Would restraining him from leaving India would impact on his right of freedom of movement, which is also provided for under the same article?
A far weightier question also arises, as this was not the case of only passing judgment, but also its execution. Here, the VCDR provides a two stage mechanism. Firstly, relating to the waiving of diplomatic immunity, prior to trial. Secondly, the need for a ‘separate waiver’ and that too ‘express waiver’ before its execution under Article 32 (4). It would be here that the acumen of the legal community would have been tested, if the Italian government had not ensured the return of the two marines to India. Would it have stayed the test of international jurisprudence as India has ratified VCDR and has thus fully accepted the obligations thereunder?
It was not only the legal issue that needed to be resolved, but also its political dimension had to be kept in view. How would it affect India’s bilateral relations with Italy and other EU members? Prima facie, it was going to hurt, with India already having decided to downgrade the level of diplomatic relations by deciding not to send the new Ambassador to Italy. It would have also resulted in the downsizing of bilateral economic, commercial and defence links. It would also have its toll on Indian diaspora, which has a sizeable presence in Italy; a large number of whom find themselves in detention centres as undocumented persons.
Any talk of diplomatic immunity has to keep in view the spirit of the preamble to the VCDR, that it is to ‘ensure the efficient performance’ of the diplomatic missions and not to be used in a dishonest manner that misleads the highest court in a respected democratic country. The Italians had lit the fire and they extinguished the same before this fire could engulf India-Italian relations further into a deeper inferno. For the diplomatic community, this case should make an interesting study, how core legal conflict points needed to be addressed. Should an Ambassador mislead the highest court in making a false commitment? If so, could he still take recourse to diplomatic immunity? Further, how could the highest court ensure compliance of its judgment against an Ambassador, who enjoys personal inviolability? There is a need to look afresh at the issue of diplomatic immunity from criminal jurisdiction under Article 31, read with Article 41 that relates to the obligations to respect the laws and regulations of the receiving state (Art 41).