The Enrica Lexie Incident: Further Developments

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.[1] 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.[2]

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.[3] This means that a member a diplomat (or member of his household)[4] cannot be arrested and charged with a crime even if they commit if flagrantly on the territory of the receiving State.[5] 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.[6] 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.

Countermeasure?

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.


[2] Vienna Convention, article 32 (2).

[3] Vienna Convention, article 31.

[4] Vienna Convention, article 37.

[5] For example drunk driving and vehicular homicide. I am personally aware of such a case.

[6] There may also be the accusation of an international crime, however, this is far outside the scope of this brief blog post.

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8 Comments

Filed under International Criminal Law, News and Events, Public International Law

8 responses to “The Enrica Lexie Incident: Further Developments

  1. 1) In this case the Ambassador, as Head of Mission, did not have the legal authority to give an express waiver of his own immunity- only the head of his Ministry in Italy could do so.
    2) The Indians are not claiming that the Ambassador gave an express waiver but that he somehow forfeited immunity by reason of having approached the Court as part of his duties. In essence, the Indian position is that the Italian Ambassador somehow managed to so gravely affront the apex Court that he has lost diplomatic immunity for some extra-legal reason.
    3) The Indian threat against the Ambassador stands till his Govt. returns the two Marines even though the Indian Supreme Court has not asserted that it has jurisdiction to try them nor does the Special Federal Court, which could determine jurisdiction, actually exist in India. In other words, the Indian position is that the Ambassador stood bail for the Marines- though India’s right to detain or try them had not yet been asserted by the Court- and thus he must answer in his own body for their failure to return to India by the stipulated date. This is a daring innovation and not compatible with modern notions of Human Rights- which India subscribes to and has bearing on the question you ask re. whether the Indians can lawfully argue that ‘ignoring of the ambassador’s immunity is a countermeasure for the violation of a release agreement.’ Here the deciding factor is that even if the Supreme Court considers the Ambassador to have no diplomatic immunity, he would still have Human Rights and thus can’t be imprisoned or barred from leaving the country because of the actions of people over whom he has no control. In other words, if the Ambassador has no diplomatic immunity to leave the country, then by resigning his position, he regains the Human Right to travel out of the Court’s jurisdiction because there is no wrong doing of his own that he can be convicted off- unless he himself volunteers the information that he freely, of his own volition, and under no sort of duress, acted in bad faith or perjured himself.
    Frankly, I am at a loss to see how the position taken by the Supreme Court, and the Indian Attorney General can be justified by anyone with even a modicum of knowledge of the law.

  2. I may add, the Indian Supreme Court has stated that the Marines had been denied a speedy trial by ‘the Central Govt’s dragging its feet’ in appointing the Special Court required to determine if India has jurisdiction and proceed from there.
    Since the European Court of Human Rights, which takes precedence over Italian law, guarantees the right to trial within a reasonable time it is difficult to see how the two Marines, should they have chosen to take recourse to the European Court, could have been compelled to return to India notwithstanding any undertaking given by the Italian Ambassador simply because the legal facts in the matter had changed at the moment the Supreme Court issued its statement granting the Marines parole. In other words, the Court’s admission that the Marines could not get a speedy trial because of some fault of the Indian Govt. materially changed the facts of the case and opened another avenue of redress for the 2 accused.
    Let us take an example. Suppose I stand surety for an accused. At the time of granting bail, based on my surety, the Judge says ‘of course, when you come back, we wont give you a fair trial but beat and torture you’. In this instance, if the accused skips bail, there is some material fact arising from the Judge’s statement which releases me, in foro conscientiae, from my pledge of surety and a case can certainly be made for my defense.

    • Dear Sir, thank you very much for your comments. I would like to respond only on two points, the rest being already addressed in this and other posts.
      This is not a human rights issue vis-a-vis the ambassador. He signed an affidavit of guarantee. Assuming for the moment he does not benefit from immunity, he could be held in contempt of court as his assurances were not fulfilled. He would not be subject to punishment for the acts of others, but for his signing and eventually not fulfilling his commitments. This is more or less not open to serious argument.
      Your ECtHR argument about compelling return from India is fatally flawed. That court has no jurisdiction to hear any complaints against India.
      Two, as ambassador, the Italian representative could waive his immunity. He is the head of the diplomatic mission with the ability to speak for his country.
      Your allegations of torture in this case are totally unsubstantiated.

      • Thank you for your response. As you point out, the European Court of Human Rights has no jurisdiction in India. However, it does in Italy. Thus, the Marines entered its jurisdiction on stepping foot on Italian soil. However, this fact should have been known to the Honble Supreme Court of India. Thus, in saying, at the time of the release of the Marines ‘the Central Govt. is dragging its feet and thus preventing the Marines getting a speedy trial’, the Supreme Court did something which, it ought to have known, would nullify the Italian Ambassador’s affidavit. This is because, the Court knew that the Ambassador, as a servant of the Republic of Italy, could not act ultra vires or in defiance of the Laws of his land. Now, it was by no means obvious, prior to the Supreme Court’s reference to ‘feet dragging’ by the Central Govt,, that the Marines’ right to a reasonably speedy trial had been fatally compromised. Thus a defence against the Contempt charge exists arising from a gratuitous act of the Court. which, however, the Ambassador’s Consul has not presented preferring to rely on an assertion of diplomatic immunity.
        You state that an Ambassador has power to waive his own immunity. This is not the case. A Head of Mission has power to waive the immunity of a junior employee of his, but only his home country can waive his own immunity and that too must be explicit. Clearly, an Ambassador may be coerced into signing anything- but one thing he can’t sign away is his own diplomatic immunity.
        Returning to the Indian Supreme Court’s position- Section 2 of the Indian Diplomatic Relations Act states that the Geneva Convention re. diplomatic immunity over-rides any other law. Now it has been argued that Article 129 of the Constitution- which empowers the Court re. the offence of Contempt- overrides the Indian Diplomatic Relations Act. This would mean that there is some wholly distinct type of offence, neither civil, nor criminal nor arising from an administrative procedure such that the Geneva Convention is silent as to whether or not diplomats have immunity in relation to it. This would seem a far-fetched argument as the relevant Indian legislation classifies Contempt as either Civil or Criminal.
        However, the Indian Supreme Court has not yet clarified the issue of whether Constitutional claims creates types of offences which the non obstante nature of the Geneva Convention is silent about. Still, it cuts against this argument that Ashik Ahmed v AHM Sadiqul Hoque (2002) followed precedent established by the U.S. Supreme Court to hold that constitutional claims would not trump diplomatic immunity.

        You have written ‘Your allegations of torture in this case are totally unsubstantiated.’ I made no such allegations but spoke of a hypothetical case re. the giving of a surety.

      • Thank you for your response. As yoThank you for your response. As you point out, the European Court of Human Rights has no jurisdiction in India. However, it does in Italy. Thus, the Marines entered its jurisdiction on stepping foot on Italian soil. However, this fact should have been known to the Honble Supreme Court of India. Thus, in saying, at the time of the release of the Marines ‘the Central Govt. is dragging its feet and thus preventing the Marines getting a speedy trial’, the Supreme Court did something which, it ought to have known, would nullify the Italian Ambassador’s affidavit. This is because, the Court knew that the Ambassador, as a servant of the Republic of Italy, could not act ultra vires or in defiance of the Laws of his land. Now, it was by no means obvious, prior to the Supreme Court’s reference to ‘feet dragging’ by the Central Govt,, that the Marines’ right to a reasonably speedy trial had been fatally compromised. Thus a defence against the Contempt charge exists arising from a gratuitous act of the Court. which, however, the Ambassador’s Consul has not presented preferring to rely on an assertion of diplomatic immunity.
        You state that an Ambassador has power to waive his own immunity. This is not the case. A Head of Mission has power to waive the immunity of a junior employee of his, but only his home country can waive his own immunity and that too must be explicit. Clearly, an Ambassador may be coerced into signing anything- but one thing he can’t sign away is his own diplomatic immunity.
        Returning to the Indian Supreme Court’s position- Section 2 of the Indian Diplomatic Relations Act states that the Geneva Convention re. diplomatic immunity over-rides any other law. Now it has been argued that Article 129 of the Constitution- which empowers the Court re. the offence of Contempt- overrides the Indian Diplomatic Relations Act. This would mean that there is some wholly distinct type of offence, neither civil, nor criminal nor arising from an administrative procedure such that the Geneva Convention is silent as to whether or not diplomats have immunity in relation to it. This would seem a far-fetched argument as the relevant Indian legislation classifies Contempt as either Civil or Criminal.
        However, the Indian Supreme Court has not yet clarified the issue of whether Constitutional claims creates types of offences which the non obstante nature of the Geneva Convention is silent about. Still, it cuts against this argument that Ashik Ahmed v AHM Sadiqul Hoque (2002) followed precedent established by the U.S. Supreme Court to hold that constitutional claims would not trump diplomatic immunity.

        You have written ‘Your allegations of torture in this case are totally unsubstantiated.’ I made no such allegations but spoke of a hypothetical case re. the giving of a surety.u point out, the European Court of Human Rights has no jurisdiction in India. However, it does in Italy. Thus, the Marines entered its jurisdiction on stepping foot on Italian soil. However, this fact should have been known to the Honble Supreme Court of India. Thus, in saying, at the time of the release of the Marines ‘the Central Govt. is dragging its feet and thus preventing the Marines getting a speedy trial’, the Supreme Court did something which, it ought to have known, would nullify the Italian Ambassador’s affidavit. This is because, the Court knew that the Ambassador, as a servant of the Republic of Italy, could not act ultra vires or in defiance of the Laws of his land. Now, it was by no means obvious, prior to the Supreme Court’s reference to ‘feet dragging’ by the Central Govt,, that the Marines’ right to a reasonably speedy trial had been fatally compromised. Thus a defence against the Contempt charge exists arising from a gratuitous act of the Court. which, however, the Ambassador’s Consul has not presented preferring to rely on an assertion of diplomatic immunity.
        You state that an Ambassador has power to waive his own immunity. This is not the case. A Head of Mission has power to waive the immunity of a junior employee of his, but only his home country can waive his own immunity and that too must be explicit. Clearly, an Ambassador may be coerced into signing anything- but one thing he can’t sign away is his own diplomatic immunity.
        Returning to the Indian Supreme Court’s position- Section 2 of the Indian Diplomatic Relations Act states that the Geneva Convention re. diplomatic immunity over-rides any other law. Now it has been argued that Article 129 of the Constitution- which empowers the Court re. the offence of Contempt- overrides the Indian Diplomatic Relations Act. This would mean that there is some wholly distinct type of offence, neither civil, nor criminal nor arising from an administrative procedure such that the Geneva Convention is silent as to whether or not diplomats have immunity in relation to it. This would seem a far-fetched argument as the relevant Indian legislation classifies Contempt as either Civil or Criminal.
        However, the Indian Supreme Court has not yet clarified the issue of whether Constitutional claims creates types of offences which the non obstante nature of the Geneva Convention is silent about. Still, it cuts against this argument that Ashik Ahmed v AHM Sadiqul Hoque (2002) followed precedent established by the U.S. Supreme Court to hold that constitutional claims would not trump diplomatic immunity.

        You have written ‘Your allegations of torture in this case are totally unsubstantiated.’ I made no such allegations but spoke of a hypothetical case re. the giving of a surety.

  3. Sorry, please delete duplicate comment. Also, I notice I misspelled Counsel as Consul. No doubt there are numerous other similar errors for which I crave indulgence.

  4. dehro

    I’ve been following your analysis of this situation for some time now and thank you for your informative insights.
    I’m italian and I have also been following the analysis as given to us by a (leftish) collective of journalists and writers by the name of Wu Ming, you might have heard of them. in fact I have linked your comments to the incident in my comments on their article. I hope this doesn’t annoy you. it seems to me you are reaching broadly the same conclusions at least from a legal pov.. even though their insight has more to do with politics both national and international than with the “mere” legal aspects of the situation, and with how the news concerning this situation is (mis)represented.to the population in Italy.

    anyway, I just wanted to thank you for your in depth evaluation and mention, should you not already know this, that now apparently the Supreme Indian Court has decided the two marò should be investigated by a counter-terrorism authority, which opens the door to a possible death penalty.
    would this decision not fly in the face of legal procedure and does it not compound the damage to any hope for the italians towards the reasonable expectation of an international arbitration?

    I’m probably butchering legal terms as I go, for which I apologize.. my only experience with the law in english is that of arguing with traffic wardens.

    Alessandro

    • Thank you very much for your comment. I am actually a fan of Wu Ming and it is extremely gratifying to hear that there is a link to my little blog on their site.
      Unless I am mistaken, the investigating entity in India does not dictate the potential penalties, but rather the charge does. I must confess though, I am no expert on Indian law.

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