The Vienna Convention on Diplomatic Relations has come into sharp focus in the last few days in the context of the Indo-Italian dispute which has been covered extensively by Newslaundry. Indignation, in most part being justifiable, has been dictating interactive discourses here in India and certainly matters have not been helped by the very revolting spectacle of a supposedly senior Italian lawyer from Rome who appeared on Arnab Goswami’s primetime show and applauded the Italian ambassador here for hoodwinking the Indian government.

As a long time student of international law, I have been observing the whole episode very carefully. I do not believe that being a signatory to the Vienna Convention of Diplomatic Relations on October 15,1965, India can prosecute or detain the errant Ambassador. The text of Article 29 of this convention reads as follows:

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Clearly there is no room for ambiguity.

I have also listened carefully to the legal positions of senior counsels like Arun Jaitley and Harish Salve who have contended that as the Ambassador had placed a sworn deposition before the Supreme Court ( in which he had given an unconditional undertaking that the two marines would return and that he would himself make sure that they did ), he had placed himself under the Supreme Court jurisdiction .The argument here was that the Ambassador had the option of just providing an undertaking without deposing which would have served the purposes of a sovereign guarantee – and he did instead choose to depose. And when he deposed, he must have known that a false deposition carried with it a penalty of perjury which he would render himself liable to. Even Soli Sorabjee seemed to see some merit in this position.

I do have some problems with Jaitley’s position. It is a very grey area and a Supreme Court ruling on this would be most welcome. India does not have the right to initiate criminal proceedings. In a world with so few rules, we have to learn to stick to the ones we have – and if they are inadequate or outdated, then the time may be right for a re-negotiation of the Convention itself.

One of the most blatant violations of Section 29 was conducted by Iran in 1979 when the Khomeini government, which had just taken over after the Shah had fled, decided to support the detention of American diplomats as hostages. The International Court of Justice ruled against Iran but the then-government held that while it was in breach of Section 29, Islamic Law permitted their actions which included hostage taking –

This Iranian position is, however, faulty, as the only reprisal allowed by the Koran is the prevention of an envoy’s departure (basically a violation of personal inviolability), but even that only if the envoy of the receiving state is being treated in the same manner. See C. Bassiouni. Protection of Diplomats under Islamic Law. – American Journal of International Law, 1980, vol. 74, p. 620.

There are two other instances of invocation of the principle of diplomatic immunity which raised quite a few eyebrows. The first was ironically an Indian diplomat. Prakash Mehrotra was a virtually obscure Congress (I) worker whose personal loyalty to Indira Gandhi was rewarded with a High Commissioner’s posting in London. His stepson was caught shoplifting. Instead of letting him face the music, Mehrotra invoked diplomatic immunity. Later when faced with severe criticism, he returned to India. The second was a more disturbing instance where a few Libyans describing themselves as “Revolutionary Guards” started firing at Libyan dissidents holding a demonstration in Central London. In the process, a very young lady police officer Yvonne Fletcher was shot dead. They rushed to the Libyan Embassy nearby and sought refuge. Gaddafi declared them to be bona fide diplomats although they were not officially recognised as such. After a long standoff, the British government had to give them safe passage after severing diplomatic links.

There is no doubt that the principle of inviolability of the person of a diplomatic representative is still the corner stone of diplomatic law as jurist Rene Vark has stated. Personal inviolability is a physical privilege in nature, and thus it is distinct from the diplomatic immunity one has from criminal jurisdiction. As in the case of the inviolability of mission premises, there is no express reservation for action in cases of emergency, for example a drunken diplomat with a loaded gun in a public place.

Article 31 of the Convention makes this even more succinct. It reads:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.

He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

However in a classic judgment in the case Empson vs Smith, the judges ruled-

“It is elementary law that diplomatic immunity is not immunity from legal liability, but immunity from suit. The diplomats are under an obligation to respect the laws and regulations of the receiving State”.

Which makes this whole matter very perplexing indeed.

My belief is that while diplomatic immunity is likely to be invoked, there are also other factors which have entered the equation. Should the principle of diplomatic immunity not apply, the two crimes this errant diplomat is likely to be charged with are perjury and contempt of court. Unfortunately neither is considered a felony in most countries including Italy and India.

The other issue is more uncomfortable.  Late Steve Biko, the medical student turned anti-apartheid campaigner of the Black Consciousness Movement, once remarked that he had ceased to expect any fair play on matters of injustices against the Blacks from Europe as he believed – Whites of the world stick together. And it would be fundamentally dishonest to claim that racism does not influence many including those in authority.

I cannot imagine any European country taking Italy to task for this egregious violation of every diplomatic norm moreso because it concerns India. After all, none spoke out against France in the Rainbow Warrior instance. This is an uncomfortable truth we have to accept.

That is not to say that we should abandon our fight. India thankfully can fight its own battles. The only attribute we have to discover within ourselves is personal will to take the battle to the final level – by all legitimate means. The question is do our representatives have it in them?

Image By: Abhishek Verma