When an ambassador lies to the highest court, does he lose immunity?

In the festering case of the Italian marines who went home after assurances from Italy’s ambassador to India that they would return, and have not, India’s Supreme Court has said that they have “no trust” in Italy’s ambassador and, moreover, suggested that he does not have immunity.

It is unprecedented for a Supreme Court of a country to say that the ambassador of another country does not have diplomatic immunity. It is also unprecedented for an ambassador to give an undertaking to the highest court that is then reneged on. It will be interesting to see how it resolves.

As far as I can understand it from the media, the argument is based on article 32 of the Vienna convention, which says “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”. (Section 37 explains who else has immunity.) In fact, one report claims that Ambassador Mancini explicitly invoked Article 32 in filing his affidavit for the marines. So if he, by his affidavit, can be said to have “initiated proceedings”, then arguably he does not have immunity from counterclaims like perjury or contempt.

But whatever happens, the lesson is: don’t trust an Italian diplomat’s word. Is that really the message the Italian government wants to give the world?

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3 Comments

  1. Sayan

     /  March 18, 2013

    I would not be so sure, Sir. Have you read article 31? Are the accusations against this ambassador of a civil or criminal nature? And in the case the accusations are of a civil nature is it possible to say that he has “initiated” a civil procedure? Is it possible to believe that he has acted on his own accord? Usually ambassadors do represent their own governments and I doubt that this person’s acts have been carried out indipendently (“initiated”) of the orders he must have received from Italy.

    I also wonder if it was legit that the Italian captain allowed India’s police to carry out an investigation on Italian soil, i.e. on board the Enrica Lexie, the premises of which were outside India’s jurisdiction albeit the ship herself was anchored in an Indian port. Had Indian investigators the right to board the ship in their capacity as police officers? Honestly I do not know, but I believe they hadn’t. Maybe they had a jurisdiction on the shooting, but I am not sure they had a jurisdiction to investigate on board the ship herself.

    Reply
    • Rahul Siddharthan

       /  March 18, 2013

      The relevant article is Article 32, not Article 31. The relevant question is, can he be said to have initiated the proceedings? I am not a lawyer, but if the SC is right that article 32 (point 3) precludes him from invoking immunity, then it doesn’t matter whether it is a civil or criminal matter. If the SC doesn’t back down, the marines aren’t returned and Mancini is held in contempt and ruled not to have immunity, I guess Italy will take it to the ICJ and they can decide.

      The other question you raise should have been brought up in the normal legal proceedings; it is not relevant to whether Italy was right to dishonour its ambassador’s undertaking to the Supreme Court.

      Reply
  2. Sayan

     /  March 19, 2013

    Well I am not a lawyer either, but no, both article 31 and 32 are part of the Vienna Convention. One follows the other and they of course can not contradict one another so if under art. 31 immunity is always granted for criminal acts and in certain circumstances for civilian acts, then it seems to me that art. 32 *must* be referring solely to civilian procedures that may have been initiated thus depriving you of your immunity. But of course I don’t know for sure and I may be wrong.

    And as you correctly point out dear Rahul “*if* the SC is right”, because I am still not convinced that an ambassador complying with directions coming from his country is “initiating” a procedure, as one could claim that the procedure was initiated in Rome and the ambassador was the diplomatic channel. But again I am no lawyer so I don’t know, and we shall see. I’m pretty curious

    Reply

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