The Supreme Court’s decision to restrain the Italian ambassador from leaving India raises the question that this may violate international law on diplomatic immunity.
This is the latest development in a deepening dispute between the two countries over where two Italian marines accused of fatally shooting two Indian fishermen should stand trial.
On Feb. 15 2012, two Italian marines on board the Italian tanker Enrica Lexie allegedly shot and killed two Indian fishermen off the coast of the Indian state of Kerala.
Onshore, the marines were then arrested by local police and charged with murder, which they deny. As the Indian judicial process took its course, courts allowed the marines to visit Italy twice. They returned to India after their first visit over Christmas, but Italy is refusing to send them back a second time, triggering strong protests in India and a diplomatic crisis.
Both India and Italy claim the other’s actions are lawful.
At this stage, it’s worth taking a step back to untangle the legal arguments in a dispute that has led Italy and India to review their diplomatic ties.
1. Who has jurisdiction in the case? India and Italy disagree over where the two men should stand trial on murder charges.
Italy has long maintained that since the incident happened in international waters, its courts have should handle the matter.
India disagrees, says it has jurisdiction over the case because the slain fishermen were Indian and on board an Indian fishing boat at the time of the incident.
In January, India’s Supreme Court ruled the marines are subject to Indian jurisdiction, saying they will be tried in a special court in Delhi.
Before the judgment, Italy hoped for a ruling in its favor. This may explain why the marines returned to India when they were allowed to visit Italy for Christmas (before the judgment was delivered), but did not return this time.
When it announced the marines would not return to India as promised, Italy said India’s position is contrary to international law.
Italy points to the 1982 United Nations Convention on the Law of the Sea, which says that a ship on the high seas falls under the exclusive jurisdiction of its “flag state.” In the case of the Enrica Lexie, that would mean Italy.
Under UNCLOS, the flag state also has exclusive jurisdiction over “incidents of navigation” involving its ship on the high seas.
The Indian Supreme Court has rejected these arguments, noting that the shooting incident cannot qualify as an “incident of navigation,” and that the alleged incident happened on an Indian boat.
2. Are the marines immune from prosecution? Italy also claims that the marines, as members of the Italian armed forces, are immune from prosecution in India for acts carried out in their official capacity.
The two naval officers were positioned on the ship as a counter-piracy measure.
But it’s unclear whether counter-piracy agreements apply to incidents involving commercial ships, like the Enrica Lexie. Italy says they do.
Since India and Italy have not concluded a treaty in advance that determines whether or in what circumstances armed forces stationed abroad enjoy immunity from local criminal jurisdiction, the immunity of the Italian marines is a question of customary international law.
In this instance, Italy would have to show that customary international law grants immunity to members of a state’s armed forces in situations where a criminal act is alleged to have taken place outside of Italy, and where military personnel are responsible for security on a private vessel.
India’s presented this argument on the marines’ immunity before the Indian Supreme Court. The court did not respond to this, saying it’s up to the special court to rule on this.
3. What are the next steps? When it informed India of its decision, Italy also formally called for a diplomatic solution to the dispute through UNCLOS.
The convention requires the states to settle their disputes by peaceful means such as negotiation, conciliation, or arbitration.
In case they fail to reach a bilateral agreement through UNCLOS, they can turn to a third party for arbitration.
Here, Italy and India have several options: They can submit the dispute to the International Tribunal for the Law of the Sea in Hamburg, the International Court of Justice in The Hague, or to an ad hoc arbitration tribunal.
4. Can India force the Italian ambassador to stay put? The Supreme Court, unhappy with Italy’s decision to not return the marines, on Thursday said Italian ambassador will not be allowed to leave India without its permission.
Italian Ambassador Daniele Mancini gave his word to the Indian Supreme Court that the marines would return to India to stand trial.
It’s unclear whether the court's order violates the terms of the 1961 Vienna Convention on Diplomatic Relations, which grants diplomats immunity from criminal and civil prosecution in the countries that host them, with some exceptions.
India’s foreign ministry has so far said the order does not impact New Delhi’s commitment under the convention. However, if Indian authorities enforce the order – and effectively stop the ambassador from leaving the country, should he try – some could argue this would go against the international treaty.
That convention says that a diplomat’s immunity can only be waived by his or her government. In this case, the Italian government is firmly backing the ambassador, who was acting on its behalf.
But there are exceptions to the immunity rule. Article 32 of the Vienna convention precludes diplomats from invoking immunity in legal proceedings they initiate. It’s unclear whether the exception applies in this case, as the ambassador turned to the Supreme Court not in his personal capacity but on behalf of the government of Italy.
The court’s order came in response to a contempt-of-court petition filed by Subramanian Swamy, a politician with the opposition Janata Party, earlier that day.
“I have argued that since the ambassador himself voluntarily entered India’s legal process… he has lost his immunity due to his own actions,” he said.
If Italy believes the Supreme Court’s restraint order contravenes the Vienna convention, it can take India to the International Court of Justice to resolve this dispute.
(Source: Google News: The Wall Street Journal. View the original story here.)