A Battle Between Diplomatic Immunity and Impunity

by: Zainab Lokhandwala

The diplomatic row between India and Italy which has recently assumed herculean proportions is a result of sheer legal naiveté displayed by the Apex Court. The stands adopted by the government and the Court are marred by legal ambiguity over facts and circumstances surrounding the matter. However, at the heart of the controversial diplomatic struggle ensuing between the 2 countries lays a human tragedy. The February 2012 shootings by 2 Italian marines: Reggimento San Marco, Marina Militare on board the Enrica Lexie allegedly claimed the lives of 2 Indian fishermen: Ajesh Binki and Valentine aka Gelastine, natives of Tamil Nadu and Kerala respectively. The Indian Coast Guard promptly intercepted the ship and arrested the 2 marines. They remained in judicial custody for 105 days under strict bail conditions. Nevertheless they were released on assurances from the Italian ambassador to India that they would return to stand trial. On 11 March, 2013 the Italian government formerly stated that they would not be sent back to India.

In response, India sought to ‘punish’ the only accountable Italian within Indian jurisdiction: the ambassador himself (Daniele Mancini) who has in a sworn affidavit taken up the obligation of ensuring the return of the marines. The Supreme Court has disallowed him to leave the country. The legal significance of this action is that foreign ambassadors, diplomats, government personnel and military personnel are entitled to immunity from arrest and restraint of any sort; that is, the Indian government cannot successfully exercise territorial jurisdiction upon them. The only exception to this rule is territorial criminal jurisdiction, which may be exercised upon such foreign persons in some circumstances but not always, which in fact enabled India to apprehend the Italian marines in the first place.

The India versus Italy saga meets all the parameters fit for a captivating Thriller: suspected pirates, mistaken identities, a shooting, death, a battle between nations, top-level diplomatic involvement, promises undertaken, promises broken, a trial and much else! Yet notwithstanding all of this, at the core it is a legal dispute. Some primal issues have come to light. First, can India exercise jurisdiction over the matter; second whether the Italian marines enjoy immunity from the said jurisdiction; third whether permission granted to the Italian marines to go home for Italian elections and Christmas had any legal ground; forth, whether the Supreme Court’s order restricting movements of the Italian ambassador in lieu of the marines returning for trial is in accordance with the rules of diplomatic immunity. The law over the subject calls for elucidation.

February 15^th, 2012 shootings:

The shootings occurred 20.4 nautical miles away from the Kerela coast. According to the United Nations Convention on the Law of the Sea (UNCLOS) (India and Italy are both party to the Convention) India’s territorial waters extend up to 12 nm. A country can exercise complete sovereignty in its territorial waters barring some exceptions. India’s contiguous zone (waters traditionally part of the high seas yet are adjacent to territorial waters of a country) extends up to 24 nm from its coast. In a contiguous zone, a country has limited rights. It can prevent infringement of customs, fiscal, immigration and sanitary laws. The question is whether India’s criminal laws extend to its contiguous zone or not. A cogent reading of s. 3 of the Indian Penal Code, 1860 and s. 3 of the Admiralty Offences (Colonial) Act, 1849 reveal that India can exercise criminal jurisdiction over its contiguous zone.

In the present case, Enrica Lexie is an oil tanker operated for commercial purposes. Hence, one need not delve into the complicated position of law as regards warships and other government vessels operated for non-commercial purposes. Article 27 of the UNCLOS lays down that criminal jurisdiction of the coastal state may be invoked if the consequences of a crime extend to that state. Here too India stands competent to exercise jurisdiction as the fishermen killed were of Indian nationality.

Thus, India’s claim to exercise jurisdiction holds good under public international law as well as national laws (IPC and the Admiralty Act). However, the Supreme Court in its January 18^th order has not taken a conclusive stand establishing its own jurisdiction over the case. The Court has merely asserted sans thorough explanation, therefore leaving it implicitly open for the Italian government to challenge jurisdiction at trial.

Further, whether the Italian marines enjoy any immunity from India’s jurisdiction is another point of consideration. ‘Functional immunity’ extends to those ‘official acts done while in office’. The counsels representing the Italian marines argued before Supreme Court that the 2 marines were in uniform at the time of the shooting and they were carrying out an ‘official function’. The ‘official function’ referred to by them was the ‘repression of piracy’ under Article 100 of the UNCLOS. Even a cursory glance would suffice to see that the Article only speaks of international cooperation in the repression of piracy on the seas; it makes no reference to jurisdiction or immunity. What is the basis for this ‘official function’ is thus unclear.

It is to be noted that the employment of Article 100 is a substantive legal defence which can be taken during the course of the trial; it cannot be used as a procedural objection for challenging jurisdiction. Prima facie the Italians have failed to show how the act of firing at the fishermen was done during the discharge of an ‘official function’ on board an oil tanker. Remember, this was not a warship, nor were the marines receiving any orders from superior officers: wherein both cases maybe a different legal conclusion would have been reached.

Hence, India could have successfully carried out a trial to prosecute the marines.

Apex Court’s Parole:

Here, matters get more befuddling. After the marines were arrested in February, 2012, they were remanded in judicial custody during ensuing investigation and legal process. By ‘judicial custody’ the Magistrate did not mean a lock-up which is only meant for the hoi polloi, but CISF villas for each marine. This is stark! What’s more, on December 20^th the marines made an application to the Kerela High Court to return home for Christmas for 2 weeks; the Court granting the same. After some enjoyable festive days filled with roasted turkeys, rum cakes and raviolis, the marines returned to India to honour their commitment. The Kerela High Court was satisfied: they were back after a good time with family. Everyone was happy.

Only on the 18^th of January the Supreme Court declared that the Kerela High Court did not have jurisdiction to hear the matter, and the permission to leave the country for Christmas and the legal vacuum in which it was passed was never explained. The marines expectantly made a fresh application to leave the country again on the 22^nd of February: this time for casting a vote during Presidential elections in Italy as well as spending time with their family for Easter. Awww! They were so desperate in not failing in their political duty and were so home-sick that the Supreme Court could not refuse. The Court granted leave for 4 weeks. This is stark again! The Italian ambassador himself casts his vote by post, so why send the marines all the way to Italy? And as though going home for Christmas wasn’t enough, as pious God-fearing Christians they had to be home for Easter too! The only thing the Kerela High Court and the Supreme Court were forgetting was that the marines were accused for murder!

The only legal basis for such an action is presumably good faith. But, where there are deaths of innocent Indian fishermen on the one hand and the luxury of celebrating Christmas on the other, mere good faith can hardly justify allowing them such leniencies. The Apex Court ought not to feel so amazed at the prospect of them not returning home, as, to any reasonable man it would seem like an obvious consequence of the Court’s attitude toward them.

Breach of Trust/ Contempt of Court:

Here, the tale takes a saucy twist. After the marines flew back to Italy for elections and Easter, the Italian government explicitly expressed its intention of not sending the marines back to India to stand trial. The Supreme Court was furious at the blatant abuse of its parole. Its subsequent actions are marred by controversy: it has ordered the Italian ambassador to stay in the country. The Court here again has merely asserted its power to do so rather than provide a legal explanation.

A possible legal course of action that the government should adopt is prosecuting the ambassador for Contempt of Court. Brazenly breaching an obligation undertaken on oath is a direct attack on the dignity and esteem of the Apex Court, making the plea for contempt to be legally tenable. Article 129 of the Indian Constitution confers upon the Supreme Court the power to punish for its contempt. Yet, section 2 of the Diplomatic Immunities (Vienna Convention) Act, 1972 provides for all-encompassing blanket immunity for all foreign diplomats on India soil. Hence, many argue that a contempt petition against the ambassador may fail at the very first instance for this reason.

This is a classic example of a conflict between a provision under national law and a provision under international law, and the question as to which is to take precedence over which. Here, it is important to note that an international obligation only becomes binding when incorporated in the body of laws in India (Article 253 of the Indian Constitution). An international rule laid down by a treaty or convention only on integration in the domestic law (ratification) becomes operative in its true sense. Before such ratification, India’s obligation under that treaty or convention is limited so as to only refrain from defeating the very object and purpose of the treaty. Having said that, in actuality there is no conflict between Article 129 and Section 2 of the Act. It is fundamental legal principle that a constitutional provision always overrides a statutory provision if they are inconsistent with one another. Hence, if the government files a timely contempt petition before the Court after the lapse of 4 weeks then the Supreme Court would not be in any way impeded from invoking Article 129 and wielding its power under that Article despite the immunity enjoyed by the ambassador.

Notwithstanding the above stated argument, there is indeed scope for many more counter-arguments over the matter; hence, making it even more imperative upon the Supreme Court to clarify the legal position of a contempt petition if filed. Sadly, the Court has chartered its own course by disallowing the ambassador from leaving the country: an action which has no legal basis.

Jurisdiction exercisable over the Italian ambassador:

Coming to the last leg of the brewing dispute, the decision of the Supreme Court to restrain the ambassador from going out of India has no legs to stand on. Article 31 of the Vienna Convention on Diplomatic Immunities lays down that a diplomat enjoys immunity from the civil as well as criminal jurisdiction of the country in which he is stationed. Further, the Diplomatic Immunities (Vienna Convention) Act lays down, that a diplomatic agent shall not be liable to arrest or detention in the receiving country (Section 29). It is hence, evident that personal inviolability of a diplomat is paramount and without exception. A diplomat can never be personally held accountable for the acts of his government; this protection given to all diplomats is absolute.

The Supreme Court has asserted it has power to do so without justification. The only explanation given thus far is that of a waiver. The Court claims that the Italian ambassador waived his immunity by filing a writ petition in the Supreme Court. Instituting proceedings or taking part in them cannot be construed to be a waiver of immunity which has to traditionally meet a much higher bar. The ambassador cannot be presumed to have waived his immunity to which he is inherently entitled by the mere fact of filing a petition. Here, no constitutional provision plays any role whatsoever in condoning the fallacious order. The Court has acted against the statute with no legal reasoning. What the Court can do now is interpret the term ‘detention’ under Section 29 to mean the literal act of detention and not restraint which provides a wider connotation. However, international practice has shown that the term ‘detention’ would include all attacks on the person of the diplomat.

It is hence unclear what is to follow. Both countries involved in the dispute have been known to have a flair for the emphatic. The dispute should be negotiated on the table so as to secure speedy justice for the families of the victims. India’s first demand ought to be the return of the marines and commencement of trial against them; and second it ought to take tough stand on the matter in contrast to a yielding and charitable behaviour towards the marines displayed in the past.

Today the Court is haphazardly dabbing glue to join the pieces of a puzzle it broke in the first place. This is not only irrational but also illegitimate. It should take some firm and definitive steps before the controversy spirals out of its hands forever.