Diplomatic Immunity et al
Posted on 1-April-2013
I spent days together last month feeling very sorry for His Excellency the Ambassador Extraordinary and Plenipotentiary of the Republic of Italy to the Republic of India. With one stroke, the Supreme Court of India stripped him of the dignity of his high sounding office and reduced him to the level of an ordinary litigant appearing before it. The court said in effect that from the moment when by giving to the court a solemn undertaking he had submitted himself to the authority of the court, he had lost his claim to diplomatic immunity. The court also ordered that he should not be allowed to leave India until on 2nd April this year it considered what to do in the event of two Italian marines being tried in India on charges of manslaughter not returning to India by 22nd March 2013. When the marines did in fact return on 22nd March, the court imposed restriction on the Ambassador became by implication non-effective and His Excellency became His Excellency again. Or can he, while he is serving in Delhi? He cannot avoid embodying a legal precedent, no matter how hard he tries and from now on, wherever he goes he will be asked to tell his Delhi story. When in February this year, the Supreme Court of India, already seized of the case of the two Italian marines aboard an Italian oil tanker sailing close to the coast of Kerala had shot two Kerala fishermen dead in February last year, was asked to permit them to go to Italy to vote in Italian elections, the Supreme Court allowed them to go and return to India by 22nd March on the basis of a written affidavit from the Ambassador of Italy affirming that the marines would indeed return by the stipulated date. It is inconceivable that the Ambassador would have submitted such an affidavit without full authority from his government--in any case his title allows everyone to assume that this was the case. Yet on March 11, the Government of Italy informed Government of India, through the Italian embassy in Delhi that the marines would not return to Delhi. No matter how bravely he would have argued his government's case and no matter how forcefully he would have talked of a diplomatic solution or of international arbitration--in a democratic country ruled by a constitution it is absurd to talk of a diplomatic solution in a matter which is already being dealt with by a court of law--the Ambassador would have known that he had been placed in a very difficult situation by his own government. If he has a sense of the way the modern world works he would also know two other things: he is neither the first nor the last ambassador to be placed in a difficult situation by his own government and that an ambassador's dignity, at times even his physical person, are expendable commodities. In fact he should, as should the governments of India and Italy, thank the Supreme Court of India for having forced a quick solution, for otherwise envoys of the two countries could have strung discussions along interminably, while the marines and some Italian politicians would have been hailed as national heroes by a jingoistic Italian press and some poor Kerala fishermen would have cried themselves hoarse asking for justice, waiting for the diplomats to finish with their negotiations.
While this ten day diplomatic fracas was on, discussions in the Indian media of the extent and nature of diplomatic immunity engaged the attention of many people. Rarely have sections of the Vienna Convention on Diplomatic Relations been cited so extensively in so short a time in newspapers and in other news media. Lawyers, retired diplomats and other knowing people all jumped into the fray. Many suggested that the immunity of an ambassador is absolute until such time as it is explicitly waived by the sending government. Some saw in the attitude of Italy signs of European arrogance and others mentioned examples of western countries cherry picking provisions of the Convention to respect or to disregard. Sometimes these discussions lost touch with a few basic realities. One of these is that like any other international treaty, the Vienna Convention is also meant to be applied by national governments and therefore is subject to interpretation by national authorities and like any other law these interpretations are determined by the details of specific situations. On this criterion alone, the Supreme Court of India was perfectly within its rights to put its own gloss on the immunity of the Italian ambassador in Delhi. In the present day world there is no supra national authority that can override the authority of the highest court of any nation state. Secondly, the Vienna Convention, like any other international treaty remains valid only as long as participating governments behave in good faith--and in this case the government of Italy did not act in good faith--or else governments respect it under fear of counter moves by other parties when the provisions of an international treaty are not respected. It is not unusual for nations to tear apart formal treaties if it suits them and if there is no fear of retaliation. Thus the administration of George W. Bush just abrogated the Anti Ballistic Missile Treaty between the USA and the USSR, without so much as claiming any justification for doing so. Thirdly diplomatic immunities and privileges work best when diplomats respect the laws and authorities of the receiving country. When they do not they invite trouble for themselves. Diplomats often misuse their privileges including indulging in contraband and in such cases many receiving governments often disregard the provisions of the Vienna convention about immunity from search by customs authorities and force diplomats to open their bags for inspection. Diplomats are not always allowed freedom of movement within the countries of their accreditation. Finally, states normally try to limit the scope of conflict between them if their diplomats are denied privileges and immunities, as happened in the case of the two Italian marines when the Government of Italy, overruling its foreign minister decided to send the marines back to India within the time fixed by the Supreme Court of India. In sum, diplomatic immunities and privileges do not exist in some ideal world of pure principles but in the real world shaped by some of these ground realities and maybe others.
Another kind of reality that, in the case of the two Italian marines, has forced itself onto the idealised world of pure diplomacy of unthinking diplomats and sundry other pundits is that international relations and diplomacy cannot function in isolation from local politics and pressures. On the Indian side neither the Government of Kerala nor the Government of India could ignore the anger in Kerala over the shooting of fishermen on an unarmed trawler gone out to fish in what to them were home waters by people on board a foreign vessel. No warning was given and no warning shots were fired and the shooting took place in bright daylight. From the moment the marines and their tanker were brought ashore and placed under the jurisdiction of Kerala courts, the Government of Italy engaged in high pressure tactics which included a number of telephone calls by the Italian prime minister to the Indian prime minister, visits to India and to Kerala by the Italian secretary of state for foreign affairs, and his boss the Italian foreign minister. From the beginning, the Italians have sought a solution worked out between the two governments. The Italians probably had their compulsions in that sections of the Italian press had made the return of these marines into a major point of national honour and pride. Except for one contretemps in a submission to the Supreme Court, Government of India has been mindful of the feelings among the people of Kerala who found a forceful advocate in the person of the chief minister of Kerala. And now, the matter moves to a special court set up to try this case. Hopefully there will be no more talk of a diplomatic solution, nor of temporary return home of the Italian marines. Skilful political management often involves reconciling sectional interests with the interests of the larger national community and skilful diplomacy means advancing the interests of the larger national community in a world of competing national interests. Political mismanagement leads to all kinds of accidents and confusion. Diplomacy and diplomats have to function in the real world of politics. In democracies public opinion and popular pressure cannot be set aside beyond a point in the name of some supposedly high diplomatic purpose, especially when the political fortunes of politicians in power are at stake.
Another kind of reality forced Government of India to take a forthright position on this matter of the Italian marines. The problem of the Italian marines not returning to India arose within a few days of the surfacing of stories of bribery of Indian officials by the Italian enterprise Finmeccanica to secure a deal for the sale of twelve Augusta Westland helicopters to India. Most of these stories came out in the course of a trial in Italy. There were dark hints about money having been paid to "the family" in India. Soon after the Italian government let it be known that the marines would not return to India, there started circulating a story in the political circles of Delhi that there had been a deal between the governments of Italy and India according to which the Italian marines would be allowed to return to Italy and in return the Italian government would black out further stories about bribery of the high and mighty in India for clinching the helicopter deal. Given these rumours, a government already weakened by so many financial scandals could not afford to be seen to be handling the marines' case softly, particularly when the next general elections are so close. And when in parliament some opposition politicians sought to establish a link between the supposed softness of Government of India towards Italy--it would be interesting to know what position Government of India took in the Supreme Court when the Court considered whether to allow the two Italians to go to Italy to vote in the Italian elections-- and the Italian parentage of the President of the Indian National Congress, the latter came out with a strong statement against the latest Italian move. These two developments, purely in the domain of domestic Indian politics, further tied the hands of Government of India, precluding any inclination towards accommodating Italy. But at the end of it all, there will always be a lingering suspicion that a pusillanimous Indian government would have allowed the Italians to persuade it to back its case and India's position was eventually safeguarded not by the Indian government but by India's Supreme Court.