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Italian marines case: Envoy can be sent to jail, says Harish Salve

By testifying in court or submitting an affadavit the ambassador did NOT "submit" to the jurisdiction of the court.

None - but they did dishonor themselves. There are various ways to deal with that, mostly by not inviting Italy's diplomats to dinner. (What was it Muhammed said to do about certain bad people? "Don't sit with them", yes?)

Oh please, the consequences will be a little more severe than cancelled dinner parties. Italy can also forget any future defence or trade deals with India, and the huge Indian market will be closed to Italian businesses.

By standing as surety in a court of law, they DID implicitly submit to its jurisdiction. What you said in your previous post is also not true, that diplomats do such things all the time. Diplomats may file affidavits with the government of India all the time, but not to its courts. Signing a written declaration under oath to a court of law IS a submission to its authority - otherwise such s signed affidavit has no meaning, and the oath also has no meaning.

If somebody stands on the witness stand of an American courtroom, raises his arm and says "I solemnly swear to tell the truth...", the implicit assumption is that he recognizes the jurisdiction of the court. If not, that solemn swearing is a farce.
 

Very much so. You could read Harish Salve's take on that. Btw, unlike us(atleast me), they are no amateurs.

A different take:

SC vs Italy order: Why Mancini should get away with lying

By Praveen Swami

“I’ve got a gun and can kill you”, the smartly-dressed man who had followed Carol Holmes into her New York apartment block told her that evening in 1981, before beating and raping her—just as he had 15 other women. Later she spotted her attacker, 19 year old Manual Aryee, on the street. He was arrested—and left the police station less than an hour later, reportedly laughing. Mr Aryee, the son of a diplomat at Ghana’s mission to the United Nations, had claimed diplomatic immunity. “For all I know”, Ms Holmes told People magazine, “he could have been going to a French restaurant for dinner”.

Now, with India’s Supreme Court saying Italian envoy Daniele Mancini can’t leave until contempt proceedings against him are settled—and insisting he doesn’t enjoy diplomatic immunity—plenty of people across the world will be delighted that diplomatic immunity doesn’t mean diplomatic impunity.

This is the wrong response. Focussing on Mr Mancini lets the government off the hook for punishing Italy for its decision to lie to India’s Supreme Court. It also opens the door for Indian diplomats across the world to be harassed, often in environments that are hostile and dangerous to start with. India’s behaviour has something of the quality of the kid who throws stones at the neighbour’s dog, because he’s angry that they confiscated his mis-aimed cricket ball—but can’t actually do anything about it. In this case, though, India can act. It’s choosing not to.

The Vienna Convention: First, we need to understand what the Vienna Convention—the corner-stone of diplomatic relations between all nations—actually says. Article 29 insists that a diplomatic agent “shall not be liable to any form of arrest or detention”. Article 31 adds, just in case any doubt remains, that a diplomatic agent “shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction”. This is not equivocal language. National states have the right to try their own diplomats for crimes they committed elsewhere, or to waive their immunity. There are no guarantees, though.

Former Foreign Secretary Shashank, among others, has argued that “by standing guarantee to the Marines, the Italian Ambassador has voluntarily foregone a comprehensive diplomatic immunity for himself”. Perhaps—but he isn’t actually entitled to do that. Article 32.1 clearly states that the “immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may [only] be waived by the sending State”. This waiver, 32.2 adds, “must always be express”. The only exception are very limited kinds of litigation outlined in Article 37. The government should have insisted on waivers before telling the Supreme Court it was acceptable to grant bail to the Enrica Lexie marines—but it didn’t, and that’s that.

It could be argued India isn’t actually detaining Mr Mancini—just stopping him from visiting the airport to catch a Rome-bound flight. However, Article 26 of the convention insists that diplomatic agents be guaranteed freedom of movement and travel everywhere bar “zones entry into which is prohibited or regulated for reasons of national security”. It’s a stretch to suggest the airport is one.

There’s no way of getting around this: if the government of India doesn’t implement the Supreme Court’s orders, it will be in contempt, and if it actually stops Mr Mancini from leaving the country, it is in violation of the Vienna Convention.

So, should we care?: Yes. Mr Mancini has done the government a favour by promising not to leave the country, anyway—so should we care? There are several theories on why diplomatic immunity is important—among them, the now-outmoded idea that an ambassador represents the body of a foreign king; the notion that an embassy is in fact foreign territory; the idea that such immunities are necessary to the smooth conduct of foreign relations. Theory aside, there is an important practical point. If one nation punishes diplomats for good reasons or bad, there is nothing to stop the other nation from doing the same—with possibly trumped up charges.

There is one thing, and one thing alone, that stops Pakistan from arresting the Indian ambassador and his staff for espionage the next time there is a crisis, and that is the Vienna Convention.

For exactly this reason, nations have let foreign diplomats quite literally get away with murder. In 1984, Libyan embassy staffer Salah Ameri allegedly opened fire at protestors, killing British police officer Yvonne Ridley. Britain could do nothing, other than severing diplomatic relations, after which the accused embassy staff left the country. Libya never tried the accused, though, just like Italy, it paid compensation. Tania Sebastian has a grim chronicle of diplomatic wrong-doing that went unpunished: murder, drunk-driving incidents that left people in wheelchairs for the rest of their lives; racial-hatred incitement that had to be tolerated; even child-abusers who had to be set free.

Disgusting? Yes. Necessary? Also yes, in my view.

In a thoughtful legal analysis, Dror Ben-Ashwer has pointed to the unpleasant truth that international law and human rights—even plain justice, if you prefer—are sometimes in conflict. The Enrica Lexie case is one of them. Perhaps, as legal scholar Michael Ross has argued, the whole principle of diplomatic immunity needs to be revisited. That needs to be done through multilateral negotiation, though, not in India’s Supreme Court.

Law and justice aren’t the same thing. Sometimes, nation-states, like people, just have to suck it up. Ms Thatcher, no bleeding-heart pinko, just didn’t think Britain’s interests in West Asia were worth compromising because a police officer got shot.

In this case, we don’t. Italy benefits more from trade with India than the other way around. Italy doesn’t sell us anything we can’t get elsewhere, or provide funding we can’t do without. There are things India can and should do—among them, breaking diplomatic relations if we don’t get justice. The Supreme Court’s anger against Mr Mancini is understandable; it reflects the sentiments of many Indians. It is also, however, letting the government off the hook. The problem isn’t Mr Mancini’s affidavit. It is the government he represents, and that’s what has to be punished.

Will we? No. Indian politicians—among them, people as disparate as P Chidambaram and LK Advani—have accused Pakistan of sponsoring the killing of Indian nationals by terrorists. It hasn’t stopped any of them from actively seeking to improve relations, let along breaking diplomatic relations.

What’s a little lying, when compared to that?

http://www.firstpost.com/world/sc-vs-italy-order-why-mr-mancini-should-get-away-with-lying-665541.html
 
By testifying in court or submitting an affadavit the ambassador did NOT "submit" to the jurisdiction of the court.
None - but they did dishonor themselves. There are various ways to deal with that, mostly by not inviting Italy's diplomats to dinner. (What was it Muhammed said to do about certain bad people? "Don't sit with them", yes?)

He didn't initiate a proceeding but responded to one, so he's not in the court's jurisdiction.

Really?

Hey Solomon;
You do not even know the facts of this case and you are merrily spouting.

The Ambassador appeared in court to neither testify nor to submit an affidavit. He PETITIONED the court to grant leave to the under-trial prisoners to visit Italy to vote in the Elections. Which in law means: "I am at your door, accept my prayer/petition, consider, then act upon it in your wisdom". What does that mean? That the petitioner considers that forum to be appropriate and empowered forum. Does that sound like not accepting jurisdiction? :azn:

As for the rest of your GAS about not inviting somebody to Dinner or what Mohammed did...........:lol:
 
Actually, that would argue for retaining diplomatic immunity.

The other case you guys cite as precedent for waiving diplomatic immunity involved a crime of a personal nature, IIRC.

Here, the ambassador didn't say, "I, Daniele Mancini, private citizen of Italy, give my assurance".
He said, "I, representing the Government of Italy, give our Government's assurance".

So, at all times, he remained "the Government of Italy", not "Daniele Mancini, private citizen".

The Indian SC would never accept the assurance of a private citizen of Italy.

True. But, The Govt of India was given a firm assurance by the 'representative' of the Govt of Italy. He is the 'appointed representative' and is a 'bond holder for the bail'... I did have my concerns like you raised, but after reading the wording of Honorable Supreme Court Bench, I am certain now that he can be held liable... Only question is, if Parliament interveness!
 
True. But, The Govt of India was given a firm assurance by the 'representative' of the Govt of Italy. He is the 'appointed representative' and is a 'bond holder for the bail'... I did have my concerns like you raised, but after reading the wording of Honorable Supreme Court Bench, I am certain now that he can be held liable... Only question is, if Parliament interveness!

Yes, the Govt. of Italy is in contempt of court, but, on the question of diplomatic immunity, it was never waived.

Now the question becomes how the SC will hold the Govt. of Italy accountable for this contempt of court.

P.S. It may turn out that the SC was wrong to accept the surety in the first place, since it has no means to punish the Govt. of Italy. Mancini was just the messenger boy.
 
True. But, The Govt of India was given a firm assurance by the 'representative' of the Govt of Italy. He is the 'appointed representative' and is a 'bond holder for the bail'... I did have my concerns like you raised, but after reading the wording of Honorable Supreme Court Bench, I am certain now that he can be held liable... Only question is, if Parliament interveness!

He can't be punished for violating that assurance, since that falls under diplomatic immunity. Governments have to uphold the Vienna convention.

But he also petitioned the supreme court and gave a solemn, signed affidavit to the supreme court - and he cannot claim diplomatic immunity on that one, because the supreme court of India does not concern itself with international treaties between governments.

Yes, the Govt. of Italy is in contempt of court, but, on the question of diplomatic immunity, it was never waived.

Now the question becomes how the SC will hold the Govt. of Italy accountable for this contempt of court.

The govt of Italy cannot be in contempt of court, because the govt of Italy is not uner the jurisdiction of the supreme court of India. The SC's stance is that the ambassador is in contempt of court, since he is under its jurisdiction, and has been since he petitioned the Indian court.

The court may try to book him for contempt, but the court cannot take any action against Italy. It has no jurisdiction over "Italy".

It is upto the government of India to punish Italy in whatever way it can, and as of now, the government has stated that all ties with Italy are being reviewed. As many people have rightly pointed out, cutting ties with Italy will hurt Italy a lot more than it will hurt India.
 
The govt of Italy cannot be in contempt of court, because the govt of Italy is not uner the jurisdiction of the supreme court of India. The SC's stance is that the ambassador is in contempt of court, since he is under its jurisdiction, and has been since he petitioned the Indian court.

But he is 'Italy' and has been at all times.
He never acted as a private citizen, but always as 'Italy' when dealing with the court.

It means the SC should never have accepted the surety in the first place since it has no way to punish 'Italy'.

We all agree it was really sneaky of the Italians and the relationship, along with their reputation in the world, will suffer, but they may be on solid ground in terms of diplomatic immunity.
 
But he also petitioned the supreme court and gave a solemn, signed affidavit to the supreme court - and he cannot claim diplomatic immunity on that one, because the supreme court of India does not concern itself with international treaties between governments.

good point !
 
But he is 'Italy' and has been at all times.
He never acted as a private citizen, but always as 'Italy' when dealing with the court.

It means the SC should never have accepted the surety in the first place since it has no way to punish 'Italy'.

We all agree it was really sneaky of the Italians and the relationship, along with their reputation in the world, will suffer, but they may be on solid ground in terms of diplomatic immunity.

The supreme court has put it like this: The court does not recognize any international treaties or obligations, or agreements between two governments. It is only concerned with what happens in the court, to people who appear before the court. The Italian ambassador himself appeared before the supreme court and petitioned the court to temporarily release the marines, and swore to be responsible for their return. If he did so on behalf of his country, that is only an excuse that can be made to the government of India, not to the law courts. Indian courts are only concerned with testimonies provided by people who appear in the court, and not on who's behalf the testimony is made. The supreme court would not hear testimony from "Italy", only from a person who appears before the court. If that person violated his sworn undertaking, that person will be held in contempt. "On behalf of a country", not in his personal capacity, etc are not valid defences in a law court.

Here is a news item from today, about how the supreme court put it:

Coming down heavily on Italian Ambassador Daniel Mancini while hearing the case of Italian marines, the Chief Justice of India Altamas Kabir not only restrained him from leaving the country till further orders, he also added that a person who comes to the court and gives an undertaking has no immunity.

No further affidavits will be accepted from the Italian ambassador on whether he wants to leave the country, the court ruled.

The court also ruled that it was not concerned about what happens between two government, and its interest was only related to what happens before the court.

There was another case about a decade ago when the supreme court made it clear that it is not concerned with treaties made between governments, even if one of the is the government of India. When two accused terrorists, Abu Salem and Monica Bedi were extradited from Portugal to India, it was done so after the Indian government assured the Portugese authorities that they would not be executed - because the EU member states have a law that they cannot extradite anybody to a country where they could get the death penalty. When the CBI produced them before the supreme court, and asked the court not to give them the death sentence, the court curtly told off the CBI and the Indian government that they cannot dictate to the courts what punishment to give to an accused, and that agreements that the GoI made with other governments was none of their concern. Officials in the Indian govt and the CBI were very worried, because if the court executed them after the government promised EU otherwise, the image of the govt and CBI would suffer badly, and that they would never get an extradition again. The court again said that they should have thought off all that before making promises they cannot keep, and that protecting the CBI's or the government's image abroad is not their concern. Their only concern is with judging and appropriately punishing people brought to them. However in that case, they were not given the death penalty anyway, so the GoI and CBI were spared from looking like fools.
 
The Indian SUpreme COurt knows better about this stuff than you. They know what they're doing.

that is why the indian sc failed in the first place for not knowing only the Italian government can waive the immunity on its ambassador He cannot be detained nor can he be prosecuted in indian court.
 
Not necessarily. It depends on how it is interpreted.


"It is both tradition and law that the ambassador and many embassy officials have diplomatic immunity. They cannot be arrested or prosecuted in the foreign country. The only possibility is to send a person back to their own country."

Ambassador

Article 29. Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.
The Vienna Convention on Diplomatic Relations of 1961
 
"It is both tradition and law that the ambassador and many embassy officials have diplomatic immunity. They cannot be arrested or prosecuted in the foreign country. The only possibility is to send a person back to their own country."

Ambassador

The Vienna Convention on Diplomatic Relations of 1961

Please read the thread properly before commenting. Enough posts have been written on why it isn't valid anymore. It has been discussed at length, and beyond the immediate question you raised. Now don't go back to asking the first question everyone posed. This is like reading the entire Ramayana, and then asking how Sita was related to Rama. Or to use a simile that you may understand, it is like learning the entire glorious biography of the current glorious leader of the glorious party of the people that rules you, and then asking how the great leader is related to his wife.
 
that is why the indian sc failed in the first place for not knowing only the Italian government can waive the immunity on its ambassador He cannot be detained nor can he be prosecuted in indian court.

They're the chief justices of the Supreme Court.....you're just some guy in a forum

He can't be punished for violating that assurance, since that falls under diplomatic immunity. Governments have to uphold the Vienna convention.
But he also petitioned the supreme court and gave a solemn, signed affidavit to the supreme court - and he cannot claim diplomatic immunity on that one, because the supreme court of India does not concern itself with international treaties between governments.



The govt of Italy cannot be in contempt of court, because the govt of Italy is not uner the jurisdiction of the supreme court of India. The SC's stance is that the ambassador is in contempt of court, since he is under its jurisdiction, and has been since he petitioned the Indian court.

The court may try to book him for contempt, but the court cannot take any action against Italy. It has no jurisdiction over "Italy".

It is upto the government of India to punish Italy in whatever way it can, and as of now, the government has stated that all ties with Italy are being reviewed. As many people have rightly pointed out, cutting ties with Italy will hurt Italy a lot more than it will hurt India.

I don't think diplomatic immunity is that sort of a Carte Blanche. I remember an incident quoted in the 80s where a diplomat was allegedly smuggling gold. And in the case of the rape of his own inftant girl by a french diplomat in Bangalore, the case was registred in Indian courts.
 
Please read the thread properly before commenting. Enough posts have been written on why it isn't valid anymore. It has been discussed at length, and beyond the immediate question you raised. Now don't go back to asking the first question everyone posed. This is like reading the entire Ramayana, and then asking how Sita was related to Rama. Or to use a simile that you may understand, it is like learning the entire glorious biography of the current glorious leader of the glorious party of the people that rules you, and then asking how the great leader is related to his wife.

there are numerous case precedent on similar issues and the previous arguments against the immunity are all from the indian side which are disrespecting the international law on diplomatic immunity under Vienna Convention.

india is losing the case here. you should have detained the suspects of the incident but not the Ambassador who is protected until his government waives his immunity which is unlikely. You can prosecute the marines in international / italian court BUT NOT in india!
 

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