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Honour Above Diplomacy

The developing story of the Italian marines requires reiteration of a fundamental tenet of our jurisprudence – decisions of the Supreme Court of India have always been recognized as the final word on all disputes adjudicated by them. Judgments of the Supreme Court are the law in our Republic and, at a minimum, binding on all parties before it. The Constitution gives the Supreme Court powers to pass any orders for the enforcement of its decrees and this includes the power to secure the attendance of any person before it or to punish any contempt of itself. All authorities, civil and judicial, are obligated to act in aid of the Supreme Court and once the gavel has been brought down, nothing short of strict compliance of judicial pronouncements is expected. It is important to highlight that asides from penal and other consequences, any judgment, decree or order obtained by fraud or through known misrepresentation will be struck down as a nullity. As a legal practitioner one has no hesitation in saying that whether a case is won or lost, the Court’s decision and its finality is above all else. Such is the stature of the judiciary in our democracy that, notwithstanding freedom of speech, asides from a pure academic or legal analysis even critiquing Court verdicts in a manner that challenges their finality, is considered an act of impropriety.

In this background, the Italian government’s statement that its marines, facing prosecution in India for the death of innocent fisherman, will not return upon the expiration of the time period granted by the Apex Court to them is a blatant contempt of court. It is also a breach of the undertaking given by the Italian Ambassador in India who had, in an affidavit submitted to the Supreme Court, sworn that he takes full responsibility for the marines and undertaken that he will ensure their return to India in keeping with the orders of the Supreme Court. It’s reported that, the marines could potentially have voted through postal ballots and if true, the Italian Ambassador may well be guilty of perjury, fraud, misrepresentation and breach of trust. All of these are serious charges and the question emerging is whether the Ambassador can now claim diplomatic immunity?

This matter requires serious consideration as the majesty of our Courts and the rule of law hinges on the answer.  Once the Republic of Italy acceded to the writ jurisdiction of the Court, it has potentially given up the diplomatic immunity otherwise available. Support for this argument is found in The Diplomatic Relations (Vienna Convention) Act of 1972 passed to give effect to the Convention. The Schedule to this Act in Article 32 states that the initiation of proceedings by a diplomatic agent precludes him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. The Act notes in Article 5 that the waiver under Article 32 by the head of the mission shall be deemed as a waiver by that country. It’s must be clarified that, the need for a second express waiver, as stipulated in Article 32(4), for the execution of judgments does not come in the way, as some have tried to suggest, since courts don’t treat contempt proceedings as execution proceedings. Therefore, arguably 32(4) has no applicability. The Act, in keeping with the Vienna Convention also gives the Indian government powers to withdraw the privileges and immunities conferred on the diplomatic mission of a country, including its serving diplomats, if it believes that such country is in breach of its obligations under the Convention. Of course, any such withdrawal will lead to retaliatory action and will have a diplomatic fall-out. But to maintain the dignity of its Apex Court, India should be prepared against all such consequences.

Expelling the Italian Ambassador or declaring him persona-non-grata is perhaps part of the Italian plot. But from an Indian standpoint it’s completely unadvisable. The Supreme Court’s order restraining the Italian Ambassador from leaving India, directing him to file an affidavit explaining his position and expecting compliance with its order are notable developments. The Court is rightly peeved and expressed its annoyance when it stated that the Italian Ambassador has lost their trust. The Court noted that the Marines have till the 22nd to return and while one hopes for better sense to prevail, but if on the next date there is indeed a breach of the solemn promise, then the Supreme Court will itself decide on how it wishes to seek compliance of its orders.

If the marines, acting on ill advice, in fact don’t return to India then, asides from India taking up the matter with the European Union, of which Italy is a member state, it must also take steps to declare the two marines as proclaimed offenders and request Interpol to issue look-out notices for them. None of this may yield results, but if Italy continues to protect these absconding marines then asides from India, it will also be answerable to the international community and risks losing whatever residual credibility it has.

Just to highlight, Italy may have a legitimate claim of the dispute being covered under the UN Law of the Sea or that the matter should be submitted to mediation or international arbitration. Notably, Italy pleaded all of these before the Supreme Court and the Apex Court concluded that all matter concerning the marines, including India’s jurisdiction on the dispute will have to be decided by a special court in India. Therefore, as we stand today, the issue is not about India’s jurisdiction but how a commitment made at the highest levels in Rome to the Indian Supreme Court is reneged! Let’s not lose perspective that the accused here is not the head of state or some minister, but two naval officers. And what is baffling is that even if the marines were eventually convicted in India, they could serve their term in Italy given the recent agreement between India and Italy allowing the repatriation of its nationals lodged in the other country’s jail. Then, why this volte-face?

To sum-up, the case of the Italian marines is first a legal matter and then a diplomatic one. This is therefore as much a test of our judiciary as our foreign office. Nothing short of absolute compliance with the Court’s orders and the sovereign undertaking will be acceptable. India’s response may indeed have many repercussions, but it’s imperative for India to use this opportunity to sound alert to all those with whom it has political, diplomatic or commercial dealings that India will not tolerate any disrespect or dishonor of its Supreme Court. A message must be delivered that in India the rule of law is sacrosanct and the Courts, and Government, will go to whatever extent to ensure compliance with its orders and directives. With the matter now listed for hearing on April 2nd, the government must act swiftly and constitute the special court. If it does so, it establishes greater credibility with the international community. Thus, while the world’s eyes may be gazing at Rome, to get a glimpse of the new Pope, a greater number may well be fixed on India to see her response to Rome’s breach of its solemn commitment. It’s time the world noted that, despite our domestic political compulsions, India is not a soft state and will do whatever required to uphold the dignity of its democratic institutions.

Satvik Varma is an advocate based in New Delhi. A graduate of Harvard Law School, he is also admitted to practice in the State of New York and is currently an Aspen India Leadership Fellow.

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Discussion

5 thoughts on “Honour Above Diplomacy

  1. Satvik,

    Some excellent points here. Very succinctly put and logically presented. I agree with your train of thought. However, i do have a train of thought that i would like to present.

    In times of disagreement/ conflict, it is often important to look at first principles. The conflict arises from the murder of fisherman from India.

    They say it was done internationally and international law applies. We say this was in Indian waters. The question is jurisdiction. it is impossible to determine when the fisherman were shot (exact time). The ship was in Indian and international waters during the fateful day. Hence the GPS coordinates are not going to be applicable without a time frame/ reference.

    They don’t want to be judged in India (for fear of victimization/ lack of objectivity). We dont want them to be judged in Italy (for the fear that courts in Italy will judge them favorably). Basically a complete lack of trust in the objectivity of each other’s criminal justice systems/ legal frameworks.

    We really cant have a third party in this since both countries don’t like mediators.in a bilateral matter. Normally a perfect case for the International court of Justice, but we dont want that to apply.

    The facts are then muddied by media hyperbole, political positioning and posturing, bofors/ choopergate, et all. Complications also arise from payments made (and accepted) by the slain fisherman’s kin.

    So i go back to first principles.
    Did they shoot the marines? YES
    Was there a perceived threat when they acted this way? YES
    Should they be punished? YES

    Who should punish them and what law is applicable remain the question.

    Now, onto the ambassador. Again first principles.

    He made an assurance to us. His country reneged on it. The worst he is liable for is perjury.
    Perjury is under sections 195 of CrPC
    Diplomats are not subject to CrPC is the contention of the Italian side.

    The train of thought is that you were NOT listening to us when we were telling you International law applied
    You kept our nationals under arrest and detained them illegally
    We had to get our guys out from a system that is assuming them guilty till proven innocent
    We got them out by lying
    You cant touch our person who lied due to the fact that CrPC does not apply to Diplomats
    So we lied. And got them out.

    Now the shoe is on the other foot. We will keep them free till you prove them guilty.

    And this hurts! As bad it hurt them i think.

    So rather than go by the word of law, it is important to understand WHY this is happening. Law is based on the principle of equity to begin with. And i guess both sides have a feeling that equity (fairness) has been lost in this entire episode.

    Lets be FAIR to all concerned. And then strengthen our systems to avoid this in the future.

    Posted by Akshat Rathee | March 16, 2013, 9:02 pm
    • Is this a ploy ? Have people at the highest levels collaborated to spoil diplomatic relations between the two countries so badly that eventually Italy may refuse to provide us any help/ details / information/ documentation for choppergate – who stands to gain from this?

      Another thought – if the affidavit of the Ambassador is not legally enforceable and/ or no action may be taken against him because no ones willing to go the whole hog and actually put him behind bars for purjery – why was an order passed on the basis of his undertaking in the first place? Is there any precedence for letting murderers travel around the world on the basis of a diplomat’s undertaking? I don’t know!

      Posted by Ritika Jhanji | March 18, 2013, 11:19 pm
  2. Dear Satvik,

    Generally, it is a principle of Public International Law and Diplomatic Immunity that only the host nation can waive diplomatic immunity.

    Essentially, your article suggests that Article 32 of the Diplomatic Relations (Vienna Convention) Act (1972) applies when the diplomat initiates proceedings, preventing him from invoking immunity in relation to any counterclaim.

    That’s a slightly different scenario to the one we have before us.

    Italy’s Ambassador hasn’t initiated proceedings. On the contrary, he has either had proceedings brought upon him, or he has been involuntarily joined to a proceeding, arising from a direction of the Supreme Court.

    Basically, the Italian Ambassador did not initiate the proceedings in the first place.

    In such circumstances, I can’t see how he has waived his immunity or otherwise, had has immunity revoked.

    Generally, I note the right of governments to revoke immunity on reciprocity for a breach of a Vienna Convention obligation.

    However, I cannot see what Vienna Convention obligation Italy has broken, giving India the right to revoke the immunity of Italy’s Ambassador?

    While I broadly agree with your view that it appears that Italy has breached an undertaking, that breach in itself does not waive diplomatic immunity.

    Put otherwise, while it raises broader moral and ethical questions about diplomatic relations, it does not legally waive diplomatic immunity.

    More broadly, in relation to the merits of the case, unfortunately, it is doubtful whether India had jurisdiction in the first place under the accepted principles of Jurisdiction set out in the Lotus Case.

    Even if India did have jurisdiction, unfortunately, the Italian marines would enjoy State Immunity from prosecution under Public International Law by virtue of being state officials carrying out a state function.

    As a general principle of priority of laws, obligations under International treaties take primacy over domestic courts, even their high or Supreme Courts.

    While I do not think that breaching an undertaking is an honorable thing to do, I do not see the legal basis for waiving diplomatic immunity.

    Nevertheless, I thought the article raised some very interesting points.

    All food for thought.

    Best regards,

    Ran

    Posted by Ran Chakrabarti | March 19, 2013, 1:56 pm
  3. Thank you for the analysis, Mr. Varma. It is good to see that people are actually concerned about what the VCDR says. With respect, however, your reading of Art. 32(3) of the VCDR is misplaced. Indeed, the provision precludes diplomatic agents from invoking their immunity in proceedings initiated by them, but it is extremely important to remember that this provision applies to proceedings initiated by the agent in his or her private capacity. So, if the agent initiates a proceeding to seek compensation for something, yes, the provision will apply. But, in the marines case, the proceedings were not initiated by the Italian Ambassador. Instead, it was the State of Italy that was listed as the petitioner. The Ambassador was only representing the Italian State. This distinction is extremely important under the scheme of the VCDR because it is aimed at protecting diplomatic agents from situations exactly like this: where the diplomatic agent is personally held responsible for actions by his home State. This is the precise reason why immunity exists: to prevent the agent from being punished under the domestic law of the receiving State for actions by the sending State. As you can imagine, without this guarantee, there would be little left of immunity under the VCDR. The answer lies not in domestic law, where the Ambassador enjoys vast immunities, but in international law, where his words and undertaking can create binding obligations for Italy. It would do India well to stop feeling slighted, and to start thinking about the most effective way to get the marines back. As for the majesty of our courts and all that, I’d only is it majestic to allow Italians to go home time and again, and allow them to stay outside the prison and eat normal food, when our own citizens get none of these benefits. We want to feel good about our compassion when it comes to the marines, but what about the recent death penalty executions. Smells a colonial hangover and xenophilia to me.

    Posted by SPOCK | March 19, 2013, 3:30 pm
  4. Any country can decide to defy International Law by asserting the supremacy of its own apex Court and refusing to abide by any interpretation of Internationally binding agreements other that of its own Judiciary. However, this amounts to a terrible ‘own goal’- a self-inflicted wound of a mortal nature.
    In the case of diplomatic immunity, the Indians have chosen to assert that diplomatic immunity from Contempt of Court does not arise. This means, under the doctrine of reciprocity, that India has waived diplomatic immunity for its representatives from contempt of Court proceedings. This is an excellent thing. There are many people in the U.S, Canada, Europe etc who wish to bring various types of actions against Indian diplomats but have been prevented from doing so by reason of reciprocal diplomatic immunity. Now, it is up to the Court- any Court, be it howsoever humble- to decide whether to hold Indian diplomats in contempt for failure to appear and plead their case. To take a case, there is a group in America which believes that Indian diplomats have knowingly covered up genocide and other crimes against Humanity. Previously, if they had sought to prosecute the local Indian Consul, the State Dept. would have issued a notice to the Court that diplomatic immunity applied. Now, the Court can reject the notice on the grounds that since the Indians consider Contempt of Court to be an exception to the non obstante nature of the Covention, the State Dept. has no authority to intervene.
    Notice that once even one such Case succeeds, it would be easy for any group hostile to India to paralyze Indian diplomacy and put Indian National Security at risk. If the Supreme Court continues to maintain that only those diplomats who have approached a Court lose immunity from Contempt, then India can’t even symmetrically retaliate.
    Still, it may be that India’s bizarre behavior has something to do with ongoing negotiations with the EC re. FTA. By sending a signal that the Indian judiciary are crazy the Europeans may go easy on claims re. Intellectual Property Rights. Why bother getting stuff like that written down when no one can predict how Indian Supreme Court will interpret what has been written? Perhaps in a mad bad world, the only thing which can save us is mad bad judges!

    Posted by windheel | March 21, 2013, 4:52 pm

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