Can an Ambassador waive immunity?
No. The Geneva Convention is clear. A diplomat can't waive his immunity by any action of his own. Only his Head or Mission or his country's Foreign Ministry can do so and that has to be an explicit not an implicit waiver. Thus, for example, if you rent a property to a diplomat who agrees to waive his immunity with respect to any civil matter arising from that transaction, though he may then sue you for some breach of contract- and to that extent any counter-claim by you will be offset against the damages awarded to him- nevertheless he has the following asymmetry in his favor- viz. your action to evict him for non-payment of rent will fail because he did not have the right to waive his immunity. Only if his home country steps in and voids his immunity can you get the slimy little shit out of your house.
Thus, though it is true that a diplomat can waive his immunity with respect to some judicial proceeding, still, it remains the case that at the time of execution of judgement- i.e. enforcement-
a second waiver, from his home country is needed.
A little thought will show that the Geneva Convention can have no other interpretation. Diplomats routinely enter into contracts for all sorts of things which come under the jurisdiction of Courts other than their own. If it is the case that they waive their immunity, without any limitation, every time a tort or breach of contract arises and the matter comes before a foreign Court, then they are subject to dual jurisdiction. But, if this is the case, they have a divided loyalty or responsibility. The condition of being diplomatic envoys of a Sovereign Power is violated.
The Indian Supreme Court, however, has upheld a novel argument put forward by, non lawyer, disgraced Harvard Economics Professor, Subramaniam Swamy, such that the Italian Ambassador to India, unknown to himself or his Ministry back in Rome, somehow managed to do something the Geneva Convention specifically says he can't do- viz. waive his immunity and become subject to the displeasure of the Indian Courts. This is despite the fact that the Ambassador is the Servant, not the Master, of the country that he represents. According to the old English pun 'he lies abroad for his country'. His word, however mendaciously given, can't bind his Master, nor put his own body in danger of legal action at the hands of the foreign power to whom he is accredited because, as the representative of his Sovereign Master, he enjoys immunity.
Yet, in a truly bizarre twist, the former counsel to the Italian Embassy, Harish Salve
, is now saying that the Indian Supreme Court would be within its rights to jail his former client.
This simply isn't true- the only value of this Senior Advocate's statement lies in the glaring light it throws on the parlous condition of legal thinking in New Delhi.
What then is true position?
The answer is that this is all a storm in a tea-cup- mere saber rattling- a giant hissy fit on the part of the Judges.
It is precisely because they have no jurisdiction over the diplomat that they can afford to say anything that comes into their heads to register their rancor against him. In similar fashion, the U.S. Supreme Court is perfectly at liberty to find that the Queen of England is a dolphin recently escaped from Miami Sea World and require that she should kindly swim back there or be held in contempt of court. Since the American Supreme Court has no jurisdiction over Her Majesty, no legal consequence follows from their ruling- though it would certainly embarrass the U.S. Ambassador to the Court of St. James.
Suppose, in the Indian case, this problem with the Italian Ambassador went down to the wire- what would happen?
Well, the Supreme Court can institute proceedings for contempt of court on any Indian citizen or other employee or Agent of the Govt. who fails to prevent the Ambassador leaving the country- as per its order- though by that same action India violates the Geneva Convention and makes itself a pariah state. Should the Supreme Court direct the arrest of the Ambassador, then it issues an illegal order because it breaches both International Law and the Law of the Land. The President of India might then be required to take action- by declaring a State of Emergency and/or impeaching the Bench under Art.142 (4) for incapacity by reason of stupidity- such that the Govt. and People of India were no longer in breach of both International Law as well as the properly constituted Law of the Land.
In other words, what the Supreme Court has done is embarrass the Govt. by a willful and tendentious misreading of an unambiguous non obstante Law-perhaps in revenge for the Govts dragging its feet in complying with the Court's earlier order in connection with establishing a Special Federal Court to rule on Jurisdiction in this case. The Supreme Court's own manner of proceeding, however, was highly questionable in Law and had the effect of substantially weakening the Indian case. Essentially, the Supreme Court denied that the Kerala High Court had properly exercised its authority, as a matter of Indian, not International Law, though its proceedings were in line with the principle aut dedere aut judicare and it had established, as a matter of fact, not law that it had all that was requisite to proceed to trial- viz. evidence, witness statements, and custody of the accused. True, the Supreme Court had the right to over-rule the State High Court- but why did it do so? The crime of unlawful slaying had occurred. The State High Court had secured everything needed to conduct a trial- jurisdiction had been de facto established. The Marines had a right to a speedy trial and if there were any doubts on points of law then the case could have been transferred to the Supreme Court to do as it pleased. To compound its error, the Supreme Court then called for the setting up of a Special Federal Court, despite being aware that the Govt. of India does not and probably can not act with dispatch on any matter that requires the application of intelligence and adherence to proper form.
Having dug itself into a hole, the Supreme Court just kept digging itself in even deeper error by releasing the Italian Marines on parole to allow them to vote in their home country while simultaneously issuing a statement indicting the Indian Govt. for 'dragging its feet' in the matter of the Marines' Human Right to a speedy trial. This meant that the Marines could approach the European Court of Human Rights for protection from being sent back to India on the grounds that the Apex Indian Court had itself admitted that 'the Indian Govt. was dragging its feet' and thus their Human Rights had been violated. Since European Law is higher than Italian law, the Italian Ambassador had no right to give an undertaking that his country would perform an ultra vires and illegal action by compelling the return of people whom the Indian Supreme Court itself said were not getting a speedy trial by reason of the Govt. dragging its feet.
One other point, the Ambassador's affidavit (which is the basis of the charge of contempt of court against him) was issued before the Supreme Court stated that the Marines were not getting a speedy trial, by reason of the Govt's dragging its feet. This materially altered the facts of the case in such a way that the Ambassador's affidavit was nullified because it introduced a new fact such that it became clear that the Marines' Human Rights were being violated.
To give an example, suppose I stand surety for an accused and the Judge in the course of granting bail says 'of course, when you return for trial I can assure you that your Human Rights will be violated and you won't get a fair hearing'. In this case, if the accused chooses to flee, I am in foro conscientiae, released from my pledge of surety and a legal defense can be sustained for me in this regard.
To this day, it remains the case, though more than a year has gone by since the shooting at sea, that the Special Court to determine whether India has jurisdiction simply does not exist.
Italy does have jurisdiction. India says it may do so but wants to detain the Marines anyway. How is this not a violation of the European Charter w.r.t the right to a fair trial within a reasonable period?
Essentially, the Supreme Court has defeated its own claim to adjudicate in a manner that respects the Human Right to a fair and speedy trial and thrown doubt on the Govt. of India's willingness and ability to provide any such thing by explicitly accusing it of 'dragging its feet'.
Now, to make itself even more ridiculous, the Supreme Court, having listened to the opinion of the worthless fuck-wit, Subramanian Swamy, is indulging in barbaric saber rattling such that it has cut off the most powerful diplomatic sanction the Govt. possesses- viz. expelling the Italian Ambassador for his lying to the Supreme Court- by insisting the Govt. prevent
the Envoy leave India.
This is lunacy piled on lunacy.
To summarize, the low I.Q but arrogantly activist Indian Supreme Court and the low integrity, virtually brain dead, Indian Government, who between them have already vitiated Justice for the slain fishermen, has now plumbed a further nadir of absurdity which gratuitously exposes India's dirty laundry in a manner which deals a blow to India's credibility and bargaining power in World forums. This is typical of the sort of mischief Dr. Swamy- the Narada Muni of Indian Politics- aims at through his bizarre Public Interest Litigation based on warped reasoning and a reckless disregard for the Truth.
Politically, the good news coming out of all this is that Italy won't now have to reveal all sorts of damaging information about bribery in billion dollar arms deals which would be embarrassing for the present Administration.
How did this happy coincidence come to pass?
The background to this contretemps is Italy's one great feat of arms since the Battle of Caporetto- viz. the courageous shooting of a couple of Indian fishermen by two Italian Marines on an Italian ship which, true to Italian tradition, proceeded to flee the scene as far and fast as it could.
Italy has embraced its two young heroes and refused to send them back to India, despite an assurance given by their Ambassador, because courage such as those two Marines have displayed is indeed a rare and precious commodity in the land of Berlusconi and it is totally unfair of the Indians to persecute them for killing Christian fishermen and then running away as fast as they could.
The Indians, for their part, had mollycoddled the two Italian heroes and let them go home not once but twice- once for Xmas and the other time to vote in the Elections coz though Italy allows postal voting these two sweet little boys could get a nasty paper cut when licking the envelope or else they might think the stamp was a Somali pirate and start shitting themselves uncontrollably and keep trying to run away except they would then slip on their own shit and fall down and hurt themselves and then die of the sulks coz their Mammas didn't come quickly enough to kiss away the boo-boo and buy them a gelato.
Clearly, these two young Italian military heroes should have got a sick note and submitted it to the Indian Court. Then, the Italian Ministry of Culture should have declared them living monuments to the great military tradition of that country and prohibited their export. This would have been a perfectly legal way for them to protect their priceless Heroes. Instead, the Italians chose to break the given word of their Ambassador to India. After all, if shooting people and running away is a sacred Italian military virtue, lying is no less a laurel wreath upon the brows of its diplomats and public officials.
As for the Judges of the Indian Supreme Court, they might try learning a bit of Law for a change. I'm not saying it will help them uphold Justice but the novel sensation may re-invigorate their sex-lives. What I mean to say is- okay we all know you have the hots for Subramaniyam Swamy but how about you just ask him out for a date already?