Marines case: Despite SC order, Italy's envoy could fly the coop

The Supreme Court’s order of Thursday restraining the Italian Ambassador to India, Daniele Mancini, from leaving India pending further proceedings in the case relating to the two Italian marines who have flown the coop may prove something of a paper tiger - if Mancini too decides to take wing.

The Supreme Court directive, which came on a special leave petition filed by Janata Party leader Subramanian Swamy, is, of course, well-intentioned. The Ambassador had given a solemn undertaking on behalf of his government that the two marines, who are facing trial for the killing of two Kerala fishermen last year, would be brought back to India. But the Italian government subsequently announced that it would not be sending the marines back to stand trial in India, since - in its estimation - there were no charges pending against the them, and since it believed that it was on strong legal ground in seeking international arbitration, rather than submit to Indian courts.

That, technically, leaves Mancini in contempt of the Supreme Court. But for all the weight of the Supreme Court’s authority, its ruling in this case may be practically unenforceable if Mancini decides to take off  or if the Italian government summons him for consultations. At the very least, it would leave the Indian government between a rock and a hard place; forcibly enforcing the Supreme Court directive would put it in breach of its international obligations under the Vienna Convention on Diplomatic Relations and have severe repercussions.  The appropriate response to Italy’s brazen action therefore lies elsewhere, but it’s not clear yet that the government has the political will to force a political showdown with Italy.

Contrary to expert opinion on the matter - as reflected here - under the Vienna Convention on Diplomatic Relations  ( full text ), enforcement of the Supreme Court directive would need an additional waiver from the Italian government, which has so far not been proffered -  nor is it likely to be, given the defiant stand that the Italian government continues to take.

The crux of the matter revolves around the rights of immunity that a diplomat enjoys - and the circumstances in which those may be waived by the “sending State” (in this case, Italy). Specifically, Article 32 says:

1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 2. Waiver must always be express. 3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim. 4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.

In particular, Clauses (2) and (4) are significant.

The argument has been made by experts in India that since Mancini, acting on behalf of the Italian government, wilfully and voluntarily submitted himself to the jurisdiction of the Supreme Court, his right of immunity had been superceded. But as former Foreign Secretary Kanwal Sibal told a CNN-IBN panel discussion on Thursday night, Sub-clause (4) of Article 32 (above) specifically says that such a reading is flawed.

The waiver of immunity from jurisdiction in respect of civil and administrative proceedings (to which Mancini had given his consent when he gave the undertaking) does not extend to the execution of the Supreme Court judgement (restraining him from leaving the country) in the absence of a “separate waiver” from the Italian government.

“For (the Italian Ambassador’s) immunity to be waived, there has to be an express waiver - and that has to be given by the Italian government,” Sibal pointed out. “There is nothing  so far to suggest that any such waiver has been given, and without that, his immunity is intact.”

Of course, if Mancini decided to leave the country in violation of the Supreme Court directive, he would be in contempt of court. But then, you can lose your virginity just once. Mancini, and the Italian government, are already in contempt of the Supreme Court, and the Italian government continues to brazen it out because it has made the political calculation that the Indian government, for all the sound and fury from New Delhi, will not push back beyond a point.

Even today, the External Affairs Ministrys maximalist response, as articulated by unidentified “sources” ( in this report ) is premised on “’throwing out the Italian Ambassador” once the Supreme Court is through with the issue. “Our hands are tied at the moment because the Supreme Court is hearing the matter,” these sources have been quoted as saying. “We don’t know what direction the case will take, But once the court has decided how to deal with the Ambassador, we will declare him persona non grata.”

The government is probably calculating that for all the flak it is getting for its ineffectual response to Italy’s cocking a snook at it, the diplomatic crisis will blow over in the way bureaucrats in the iconic TV series Yes, Minister framed for all crises: “Three days of press releases, three weeks of ministerial memos, then a crisis in the Middle East, and back to normal again.”

If the Manmohan Singh government really means what it says, and wants to make the Italian government pay, it must hit it where it hurts - at the political and commercial levels. As Firstpost has argued earlier, such a response should find expression in pointedly barring Italian firms from bidding for commercial contracts in India. For all of India’s shrunken profile on the world stage, it still wields considerable commercial clout, and if that is not made to count in a case as brazen as this, it counts for nothing at all.

But such a response requires political will, which has been deficient thus far in the government’s response to Italy’s perfidy.