This past week there have been some exceedingly interesting developments in the Enrica Lexie incident. India allowed the Italian guards to return to Italy in order to vote in the recent elections here, their second release to return to Italy since their arrest. The elections being over, the Italian government has since announced that the guards will not return to India as had been previously arranged. In response, India has threatened to arrest Italy’s ambassador. This post will analyze whether India may legally arrest or detain Italy’s ambassador.
One thing should be made clear at the outset, the Italian ambassador signed a letter as part of the guarantee that the Italian guards would return to India after their release ended. We do not have a copy of this letter and for the purpose of analysis here, will assume it says nothing relevant.
International Law on Diplomatic Immunity
India has threatened to detain the Italian ambassador because of his country’s decision to not “re-extradite” the marine guards back to India after the expiration of their release to vote in the elections. As an ambassador, Italy’s representative benefits from certain rights and privileges under international law. Most of these rights are codified in the Vienna Convention on Diplomatic Relations of 1961. Article 29 reads,
The person of a diplomatic agent [including ambassadors] 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.
The plain meaning of this article is that an ambassador, duly accredited, may not be detained in any manner. While the language appears to refer to formal arrest, preventing an agent from leaving a country is a form of detention. The only difference is the cage is much bigger.
Importantly, this immunity is not for the benefit of the diplomatic agent. It belongs to the sending State and may be expressly waived by the sending State.
In case there was any doubt as to this interpretation, other parts of the treaty refer to the fact that a diplomatic agent’s immunity extends until such time as he or she leaves the country. Article 39 (2) reads,
When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.
In addition, there is also article 44 of the convention applying to armed conflicts, which reads,
The receiving State must, even in case of armed conflict, grant facilities in order to enable persons enjoying privileges and immunities, other than nationals of the receiving State, and members of the families of such persons irrespective of their nationality, to leave at the earliest possible moment. It must, in particular, in case of need, place at their disposal the necessary means of transport for themselves and their property.
It appears that they establish a right to immunity until such a time as the diplomatic agent leaves the receiving State, a right they have even in times of armed conflict. These articles establish the basic legal framework of diplomatic immunity under international law.
The Purpose of Diplomatic Immunity
The rule on diplomatic immunity applies to any criminal or civil action. This means that a member a diplomat (or member of his household) cannot be arrested and charged with a crime even if they commit if flagrantly on the territory of the receiving State. This is an incredible shield that can lead to extreme injustice to the victim’s family.
Behind this rule is a fundamental necessity of the international system, the ability to create and maintain open communication channels. The ability to have a representative in a foreign country allows the sending State to bend the ear, as it were, of the local government. Ambassadors, being important representatives of a State, tend to be individuals of some importance. As such, these individuals might be tempting hostages or bargaining chips in the games of high politics. True, when a diplomatic agent commits a crime there may be an injustice. On the other hand, not ever charge against a diplomatic agent is necessarily true. Furthermore, it would not be unheard of for a State to invent charges against an ambassador to hold him or her hostage in an attempt to gain advantage over the sending State. The immunity is to prevent the receiving State from being able to leverage the sending State with threats to the ambassador.
To avoid these and related controversies the international community adopted the rule of ambassadorial immunity, which in any case, has existed since antiquity.
The Case of the Italian Ambassador
As noted at the beginning of this post, India has threatened to detain the Italian ambassador in response to Italy’s decision not to re-extradite the naval guards accused of killing two Indian fishermen. The question is whether or not India could have legal grounds to hold him. The answer is mostly likely not.
The Italian ambassador as a diplomatic agent benefits from the rule codified in the Vienna Convention that he “shall be inviolable. He shall not be liable to any form of arrest or detention”. Furthermore, as an ambassador, he has the right to leave and return to his home country, a right guaranteed in times of war and so seemingly guaranteed in times of peace where tensions would be much less.
Modern international law allows only one way around the immunity of a diplomatic agent: waiver by the State that is the beneficiary thereof. In this case, where Italy is being accused of not honoring an international obligation, it is very unlikely – actually so close to impossible even talking about it seems foolhardy – that the ambassador’s immunity will be waived. As a simple consequence, any proceedings against him or attempts to prevent him from leaving India will be an internationally wrongful act for which India will be responsible.
There is an important caveat to this post. As noted at the beginning, the Italian ambassador signed some form or document when the guards were allowed to leave India. It is impossible to evaluate the situation without knowing exactly the contents of that document. An argument is making the rounds that it contained a waiver of immunity in this type of case. Under governing law any waiver must be “express”. It is possible, if unlikely, that such a waiver was made in the release guarantees.
All else being equal, India does not have the right to detain the Italian ambassador.
There is one final possibility that would “legalize” an action against the Italian ambassador. That is for India to claim that the ignoring of the ambassador’s immunity is a countermeasure for the violation of release agreement. This is an argument that needs to be explored in greater depth than the space provided here would allow.
 Vienna Convention, article 32 (2).
 Vienna Convention, article 31.
 Vienna Convention, article 37.
 For example drunk driving and vehicular homicide. I am personally aware of such a case.
 There may also be the accusation of an international crime, however, this is far outside the scope of this brief blog post.