Faltering ties, diplomatic immunity

There seems to be no light at the end of the tunnel for India-Pakistan relations. On Friday, at least 15 Pakistani soldiers were killed after cross-border firing continued along the Line of Control in the Pallanwala, Sunderwani, Nowshera, and RS Pura sectors of Jammu and Kashmir. The Defence Ministry had said earlier that the Pakistani Army was using "small arms, automatics, 82 mm and 120 mm mortars", and that the Indian Army was "responding appropriately and befittingly". In a further blow to bilateral relations, the Delhi Police on Thursday busted an espionage ring whose "kingpin", Mehmood Akhtar, was a staffer at the Pakistan High Commission in Delhi. In response, Pakistan decided to expel an Indian High Commission employee in Islamabad from the country. Addressing the press, Ministry of External Affairs Vikas Swarup said that Islamabad had provided no justification for the expulsion and that its actions were an “obvious afterthought”.  The charges against Akhtar are serious. Reports indicate that the Pakistan High Commission official was attempting to gather classified information on the deployment of Indian security forces along the western coast in the Sir Creek and Kutch areas, besides military installations in Gujarat, Maharashtra, and Goa. According to the Ministry of Home Affairs, this information may have been sought to carry out a terror strike similar to 26/11. According to the Ministry of External Affairs, Akhter reportedly told the Delhi Police that he joined the Baloch regiment of the Pakistan Army in 1997 and went on deputation with the notorious Inter-Service Intelligence six years later. Why wasn’t he held back in India for further questioning?

One answer: diplomatic immunity. To the uninitiated, diplomatic immunity is a form of legal protection under International Law that ensures diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws, although they can still be expelled. According to Article 29 of the Vienna Convention on Diplomatic Relations, 1961, of which India is a signatory, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.” In other words, the stated purpose of the Vienna Convention is to allow diplomats to discharge their official duties without fear of reprisal or pressure from host governments. “It is important to understand that the way international relations are structured, diplomats represent the sovereignty of a state to which they belong,” according to the former Foreign Secretary, Kanwal Sibal. “Diplomatic immunity is therefore accorded to the 'state', as it were, not the individual per se. If a foreigner were not a state representative, there would be no immunity for any infraction of the law.” Unfortunately, under diplomatic immunity, the freedom given to diplomats has begun to border on the absurd. Last year, a Saudi diplomat accused of sexual assault was allowed to leave, despite substantial evidence of his crime.

But the Government of India believes that Akhtar is a spy and not a diplomat. Moreover, he is technically a staffer in the High Commission and not a diplomat. Can he claim immunity under the Vienna Convention? Going by the provisions of the Vienna Convention, any staff member accused of espionage at a foreign high commission can invoke diplomatic immunity. Some experts argue that a staffer does not enjoy full diplomatic immunity like a diplomat since the person holds an official passport and not a diplomatic one. But standard practice is that these staffers are let off after questioning and made to leave the country as soon as possible. There is also the fear of retribution if either side does not fulfil its obligations under the Vienna Convention. These revelations should not come as a surprise, considering the tension-brimmed environs within which India-Pakistan relations tend to exist. The intelligence agencies of both nations are always on the lookout for information that may compromise the other’s security apparatus. Nations have been doing since time immemorial, even during periods of apparent peace. One does not have to be a spy thriller enthusiast to understand that snooping sometimes comes with the job of a diplomat or a staffer. American consulates in Latin America, for example, have been long known to harbour diplomats and staffers that indulge in snooping-related activities. It is just statecraft at work. 

One the issue of bilateral ties between the two warring neighbours, these recent revelations may have scuttled the possibility of a high-level engagement in December on the sidelines of the Heart of Asia conference. Despite India’s diplomatic offensive, New Delhi has extended an invite to the Pakistan foreign ministry to participate in the meeting to be attended by foreign ministers of 14 countries.