When Canadian officials announced this week that they had expelled six Indian diplomats over their alleged links to criminal activity targeting Canadian citizens, they said the action was taken after India refused to waive diplomatic immunity.
This immunity protects foreign diplomats from criminal proceedings, including questioning by police in an investigation.
Agents working at the Indian High Commission in Ottawa and consulates in Vancouver and Toronto were behind dozens of violent crimes across Canada targeting opponents of the Narendra Modi government, Global News reported.
Canada expelled the six Indian diplomats, including the high commissioner, after the Royal Canadian Mounted Police and government officials announced the findings of their investigation on Monday.
India responded quickly by ordering six Canadian diplomats to leave the country by Saturday.
The revelation comes as Canadian law enforcement continues to investigate the killing of Hardeep Singh Nigar in Surrey, British Columbia, where the killers were allegedly linked to Indian government agents.
Although diplomatic immunity is intended to be reciprocal between countries, it also means that diplomats may never face accountability for alleged criminal acts on foreign soil.
“Canada’s options are very limited,” said Akash Maharaj, a senior fellow at the Munk School of Global Affairs and Public Policy at the University of Toronto.
What is diplomatic immunity?
Diplomatic immunity is essentially a principle of international law that allows diplomats to collect, share and transmit information without fear of criminal prosecution under domestic laws.
The Vienna Conventions of 1961 and 1963 setting international standards for diplomatic immunity suggest that the concept dates back to ancient times, recognizing that messengers were allowed to travel from tribe to tribe without fear of harm.
There are more than 160 countries that are signatories to the Vienna Treaties, including Canada and India. Each of these countries has its own domestic laws that determine its compliance with the agreements.
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Under Canada’s Foreign Missions and International Organizations ActIndividuals certified as “diplomatic officers” are granted full diplomatic immunity from arrest, detention and legal proceedings.
This means that they cannot be arrested, detained, or forced to provide evidence or testimony, and they are completely immune from criminal or civil legal action. They are also not subject to searches of their offices, residences or cars, or searches of their personal or personal effects at airports.
However, these officials are still obligated to observe and respect the laws and regulations of the host country.
“Diplomatic immunity is not intended to benefit individuals personally; “It is intended to ensure that foreign officials are able to do their jobs.” The US State Department says.
Consular officers and other lower-ranking diplomats enjoy limited protection granting them immunity only in relation to their official duties.
Last October, shortly after Prime Minister Justin Trudeau first announced allegations of Indian government ties to Najjar’s killing, Canadian officials said the government recalled 41 diplomats and their families from New Delhi after India said it would “unilaterally” lift their immunity. .
Foreign Minister Mélanie Jolie said at the time that such action was a violation of international law and created “security implications” for these diplomats.
“If we allow this rule to be broken, no diplomat anywhere will be safe,” she said in a statement.
What asylum is available?
Under international law, if a diplomat with immunity violates the law of the host state, that country can ask the other state to withdraw that official’s diplomatic immunity.
If that country refuses, the host can expel the diplomat — which Canada did this week.
It will then be up to the host country to decide how – or whether – it wants to punish its diplomat.
Expelled foreign diplomats have faced sanctions in the past for their actions on Canadian soil once they return to their home country.
In 2001, a Russian diplomat was driving drunk in Ottawa when he drove his car onto a sidewalk and struck two women, killing one of them. He cited his diplomatic immunity in refusing to take a breathalyzer.
Although Moscow refused to waive his immunity at Canada’s request, the diplomat was expelled after being expelled to Russia, and was later charged and convicted of manslaughter.
“This was a case where the local government felt embarrassed by the diplomat who did something on his own behalf,” Maharaj said.
The Indian case, by contrast, involves high-ranking diplomats accused of acting on orders from the Indian government, allegations the government has strongly denied, he said.
“There’s not much (Canada) can do unless the (Indian) government is prepared to throw its diplomats under the bus, which it is not prepared to do in this case,” he said.
Canadian victims and their families can file civil cases against Indian agents once they return to India, but that process is likely to take years, Maharaj said. The same applies to waiting for a new government to replace the Modi government and allow criminal proceedings to begin.
Under international rules of diplomacy, it is up to host countries to decide whether to allow entry of all foreign diplomats.
This means that other than expelling officials accused of criminal activity, Canada could simply choose not to accept any alternatives from India until the diplomatic dispute is resolved.
Although Indian consular offices in Canada will remain open and staffed, such an entry freeze will ensure those in charge of diplomatic missions are not subject to the same broad immunity as expelled diplomats, Maharaj said.
A similar arrangement was proposed to Iran in 2016 when the Trudeau government attempted to normalize diplomatic relations with Tehran, which ultimately rejected the settlement.
Moreover, Canada will have to rely on its allies to put pressure on India to cooperate in the Canadian investigation. Both the United States and Britain have urged India to do so.
