Fighting a betrayal

Govt and courts must respect international conventions

The Supreme Court on Monday told the ambassador from the Republic of Italy, Daniele Mancini, that he had "lost the trust" of the court, and extended its ban on his leaving India without express permission. Mr Mancini was the object of the court's ire because he had submitted an undertaking on behalf of his government that the two Italian marines accused of homicide would return to custody after leaving India to cast their votes in a general election back home. The Italian government has now declined to honour that undertaking.

Traditionally, diplomats have been protected by the Vienna Convention on Diplomatic Relations, a codification in 1961 of the time-honoured precepts underlying diplomatic exchanges. Crucial to this is the concept of diplomatic immunity. Immunity is granted not in order to allow ambassadors to break traffic laws with impunity; it is granted so that individual members of any country's diplomatic corps are not held personally responsible for actions of their states that may anger their host governments. Going after the Italian ambassador for an act of realpolitik on the part of his government is a direct violation of the spirit of the Convention. Nor is it straightforward in law. True, the third clause of Article 32 of the Convention says that "the initiation of proceedings" by a diplomat "shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim". In other words, if the ambassador submits an affidavit to the Supreme Court, it means he accepts the jurisdiction of the court in this matter. But whether action can be taken against him might be another matter altogether; the fourth clause of that article says waiving immunity in terms of jurisdiction is not enough - executing a judgment seems to require a quite different waiver, which the Supreme Court neglected to obtain from the ambassador in advance.

There is little doubt that the Italian government has behaved reprehensibly in misleading the Indian executive and the courts as to its intent. The government has reacted pretty well so far, with firm words but restrained steps. After all, India gains little and loses much by acting petulant. The Supreme Court should perhaps look to and learn from the government's reaction; anger at being misled cannot serve as a belated correction to the court's original decision of allowing the marines to leave Indian shores. Nor can India afford to be seen as the sort of jurisdiction where the Vienna Convention is disregarded. The issue of the case of homicide itself is different from the act of betrayal of the affidavit by the Italian government. India's government must be seen to be willing to compromise on the first, while remaining suitably harsh on the second - within the letter and spirit of international law.