March 12, 2013EuropeEuropean UnionForeign Affairsinternational lawItalymaritime lawmaritime security

When Italy behaved like a rogue state

Turning a legal issue into a geopolitical one has raised the stakes and hurt bilateral relations.

This is an archived blog post from The Acorn.

The Italian government reneged on its commitment to the Indian Supreme Court and unilaterally refused to return two of its marines, under trial in India for murdering two fishermen in India’s waters, after they were allowed to visit home first for Christmas (Christmas!) and second, to vote (vote!). (See an earlier post on the legal issues relating to this case)

The Supreme Court order, issued by a bench headed by the Chief Justice Altamas Kabir, allowed the accused’s petition on the basis of an affidavit filed by the Italian ambassador and based on the surety of his (and thereby the Italian government’s sovereign-) guarantee. Unlike the earlier instance when the Kerala High Court permitted them to visit Italy for Christmas, the Supreme Court did not ask for any bond to be posted. The Court can perhaps not be faulted for presuming that the written promise made by a member-state of the European Union can be trusted, but left itself exposed to a risk of default. Because the Italian ambassador enjoys diplomatic immunity, he cannot be charged in a criminal or civil suit—a norm which the Italian government abused in this case. The Court has limited options now.

The action has shifted to the geopolitical domain. As of this writing, reports indicated that New Delhi has decided to expel Ambassador Daniele Mancini. [See these storified tweets on the subject.]

Samanth Subramanian and Suryatapa Bhattacharya report this matter in The National where they quote me. My detailed responses were:

What sort of diplomatic fall out can we expect, if any?

The UPA government will be under pressure to react to what is clearly a breach of law, faith and norms of engagement between civilised states by the Italian government. The Indian Supreme Court went to the remarkable extent of letting the undertrial marines off for Christmas and voting based on the presumption of good faith. So New Delhi will have to act — although at this point it’s not clear to what extent the UPA government will go.

Do you think expelling the Italian diplomatic mission and recalling the Indian mission from Rome will send across the point that India’s judiciary and government is serious about prosecuting the two Italian marines accused of killing the fishermen?

It’s highly unlikely that the two marines will be sent back to India for trial. So what actions New Delhi takes — including expelling the ambassador and the military attache and downgrading bilateral relations — will essentially have signaling, punitive and deterrent value. New Delhi will have to signal that it will not let illegal actions by foreign governments go unpunished. It will then decide on how much it can and it should punish the Italian government. Finally, to the extent that setting an example dissuades others from treating the Indian judicial system with contempt, New Delhi’s response can act as a deterrent.

Mostly though, New Delhi’s actions will have a signaling value, with some degree of punitiveness.

Who should be held accountable for this breach of trust?

This is hard to answer. Clearly the Italian government is responsible for acting like a rogue state, not a civilised member of the international community. That said, it was unwise for the Indian government and Supreme Court to accept Rome’s bona fides because its leaders and officials have consistently demonstrated their contempt for the Indian judicial system right from the start. The Supreme Court allowed the marines to leave based on the word of the Italian ambassador, but surely the Union government’s counsel could have argued its case more strongly.

On NDTVs The Social Network show last evening, I argued that this issue will affect bilateral ties and potentially even India-EU relations.



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