Back from the Brink

Commentary | March 28, 2013

EWI Board Member Kanwal Sibal, former national security advisor of India, assesses Italy's decision to send two of its marines back to India to stand trial. They face murder charges for the deaths of two Indian fishermen.  

Contrary to all expectations, the Italian marines have returned to India for trial. After having formally announced that the marines will not come back, the Italian government has dramatically reversed its position. This suggests that the hardliners in the government — apparently the foreign and defense ministers — have been overruled by wiser heads. It was not normal for a country with diplomatic traditions as old as Italy’s to violate its solemn word to another friendly country so flagrantly, striking by its action at the basic structure of diplomacy which rests on the principle that countries will honor their commitments.

Even if the Italian government has had to swallow its pride and lay itself open to the charge internally of grossly mishandling the case in the first instance and misjudging the strength of the Indian reaction, especially that of the Supreme Court, it is just as well that good sense has prevailed and further escalation of differences has been avoided.

In such cases of volte-face, especially by a major European power, some face-saving compromise between parties can be expected, but no such compromise is visible. The clarifications sought by Rome and given by New Delhi that the marines will not be arrested on their return and will not face the death penalty amount to little as the marines were already on bail, were returning within the four-week deadline laid down by the Supreme Court and the circumstances of the case do not at all justify the death penalty.

It is just as well that the situation has been defused and further deterioration of bilateral ties averted. By announcing that the marines would not return, the Italian government had deliberately raised the political and legal ante to a level that put enormous stress on bilateral ties. The Supreme Court and the country at large felt duped by the Italian decision. It defied belief that the Italian government would knowingly give a false affidavit to the Supreme Court and cover up further its deceptive intentions by approving a false undertaking by its ambassador. Even if the Italian government has strongly disagreed with India’s position on jurisdiction over the two marines, and even if it has faced intense public pressure at home to defend their rights, recourse to duplicity and fraud to spirit away the marines from Indian judicial control was hardly defensible. It had the option to take strong political steps to show its displeasure by recalling its ambassador in protest, curtailing official links, mobilizing the European Union in its favor, taking up the issue in whichever international forum was available to it. It opted, instead, to show contempt for the Indian Supreme Court and disdain for India.

In a sense, the conditions for the crisis were created by the Indian side. The Supreme Court was extraordinarily accommodating in entertaining the plea to let the marines go back to Italy in February for voting when they had returned just a month earlier after spending Christmas with their families. Why did the Supreme Court feel that it was important that they should vote? In granting successive furloughs in Italy, the consideration shown for those responsible for recklessly killing two Indian citizens seemed excessive.

The Supreme Court, for all its generosity, had to have a guarantee that the marines would return. Such a guarantee could only come from the ambassador in the name of his government, and it was given. It was overlooked that this guarantee was inherently political, not legally enforceable in case of default. Neither the counsel for the Italians nor the government counsel had reason to clarify to the judges that, under the immunity provisions of the Vienna Convention on Diplomatic Relations, any undertaking by the ambassador would not be legally actionable against his person if not eventually honored, as both wanted the marines to have a break and were willing to rely on the good faith of the Italian government. In retrospect, the Supreme Court could be accused of being naive, but, in all fairness, neither the court nor the government could have anticipated the Italian government’s unscrupulous conduct.

While the furor in India over this was justified, calls for punitive action against the ambassador, even by leading jurists, on the ground that the ambassador had voluntarily subjected himself to the jurisdiction of the Supreme Court, seemed ill-conceived and violative of the provisions of the VCDR, which are clear about the diplomatic immunity of ambassadors.

The Vienna Convention (Article 32.2) says that the waiver has to be expressed. In this case, the Italian government did not say, nor would it have done so, that in case of default the ambassador could be proceeded against legally as his diplomatic immunity could be considered waived. The convention also requires a second waiver for the execution of any judgment, which means that even if the court were to claim that the Italian ambassador had voluntarily submitted himself to its jurisdiction in the first instance, a further waiver by the Italian government of the ambassador’s immunity would be necessary for any punishment. Article 32.3, which says that initiation of proceedings under Article 37 by a diplomatic agent will not allow him to claim immunity in case of a counter-claim directly connected to the principal claim, is not applicable as Article 37 relates to families of diplomatic agents, the service, technical and administrative staff of the mission, and not to the ambassador.

The Supreme Court’s order restraining the ambassador from leaving the country has already created a major precedent by interpreting loosely a country’s obligation under the VCDR to respect the diplomatic immunity of an ambassador. This has caused serious disquiet in diplomatic missions in New Delhi, as the possibility that Indian courts could, in future too, interpret the principle of diplomatic immunity circumstantially cannot be ruled out. In any case, bilateral options against Italy being available to us, converting our differences with Italy into an international issue by seriously infringing the VCDR and disturbing the principles of diplomatic functioning in general would have been most unwise.

The Italian government showed prudence in not asking the ambassador to defy the court’s order, as any physical restraint on him would have gravely escalated matters. The court’s order and the external affairs ministry’s statement that the government was bound by it did put enormous political and psychological pressure on the Italian government. The EU has been measured in its support for Italy, but a big India-EU dispute could have arisen if we had been cavalier with the VCDR. While it is true that American and European countries have disregarded the principle of diplomatic immunity by subjecting some of our missions to local labor laws, to judgments of local courts on compensation issues — attaching bank accounts to force payments, imposing traffic fines and so on — we have to be careful not to widen the scope of such breaches by unilateral action against the person of an ambassador.

Fortunately, escalation has been avoided. The Italian government should be commended for retreating from an untenable position. For us, seeking to rewrite international law on diplomatic immunity was a fraught option. India and Italy can now, hopefully, resume normal, friendly business with each other.