Diplomatic Immunity and The Indo-Canadian issue

In diplomacy, interests, not permanent friends or foes, take precedence.

BY Dr. Santhosh Mathew

Factually, Canada is the world’s second largest country in terms of territory and India the most populous democracy. Canada is home to the largest Sikh population after India. Canada is also the closest neighbour of America and according to some critics, the 51st US state! Currently, the world stands witness to a diplomatic battle between the two vast Commonwealth members. Diplomatic security measures have once again taken centre stage as tensions escalate between Canada and India, leading to the mutual expulsion of diplomats from both nations.

The diplomatic relations between Canada and India have plunged into turmoil following Canadian Prime Minister Justin Trudeau’s startling accusation that Hardeep Singh Nijjar, leader of the Khalistan separatist movement, was assassinated in Canada by Indian intelligence agencies. In a retaliatory exchange of diplomatic measures, Canada expelled Pavan Kumar Rai, the head of India’s Intelligence Agency (R&AW) station, and India reciprocated by expelling Olivier Silvester, the head of the Canadian Intelligence Agency in India. This tension follows Canada’s recent withdrawal from a free trade treaty with India, further complicating the bilateral relationship. Nijjar, aged 45 and the leader of the Khalistan Tiger Force, had an INR 10 lakh bounty on his head issued by India’s National Investigation Agency (NIA). He was fatally shot on June 18th in Canada while sitting in a vehicle near a Gurdwara, allegedly by two individuals on a motorbike. Trudeau, speaking in Canada’s House of Commons, suggested that there was a link between Nijjar’s murder and agents of the Indian government, a claim that has added fuel to the fire.

Trudeau reportedly expressed his concerns about the killing of a Canadian citizen on Canadian soil during the G20 summit, deeming it an infringement on Canada’s sovereignty. Subsequently, Pawan Kumar Rai,  was expelled from Canada, prompting India to reciprocate with the expulsion of a Canadian diplomat. Canada argues that India’s actions are an attempt to divert attention away from the Khalistan issue, reaffirming its sympathy with opponents of India. India’s Ministry of External Affairs, however, expressed concerns over the involvement of Canadian diplomats in India’s internal affairs and their alleged participation in activities directed against the Indian State. The Indian government has recently pointed out the growing government support for pro-Khalistan activities in Canada, further straining the bilateral relationship. Trudeau’s statement that Canadian intelligence agencies are investigating the suspected involvement of Indian government agencies in Nijjar’s murder adds a layer of complexity to the situation. Canadian External Affairs Minister Melanie Jolly warned that if these allegations are substantiated, India’s actions would be viewed as a violation of Canada’s sovereignty, intensifying an already contentious diplomatic standoff. 

This marks the first instance in which both nations have resorted to the expulsion of diplomats, despite long-standing tensions between India and Canada surrounding the Khalistan issue. Notably, India has faced similar challenges with Great Britain, Australia, and the United States on Khalistan-related matters, including attacks by Khalistan separatists on Indian diplomatic institutions in these countries. However, what sets Canada apart is the significant political influence wielded by the Sikh community within the nation. Canada boasts 19 Members of Parliament of Indian origin, and Sikhs have even risen to prominent positions, including the office of the Defence Minister. This is in stark contrast to Great Britain, Australia, and the US, where Sikh communities do not hold comparable political sway. In Canada, individuals of Indian descent, primarily Sikhs, make up approximately 3% of the entire Canadian population. This demographic composition underscores the significance of the Sikh community in the Canadian political landscape that adds an additional layer of complexity to the equation between the two nations.

Canada has cultivated a long-standing relationship with India, fueled by robust educational opportunities and immigration prospects. Canada boasts the largest population of foreign students from around the globe, including a substantial contingent from India. Amidst ongoing diplomatic tensions, the well-being of Indian students and professionals in Canada becomes a paramount concern. The continued support and integration of these individuals, within the broader immigrant community, are vital not only for the Indian diaspora but also for the overall fabric of Canadian society. Any disruptions in this delicate balance could potentially impact the bilateral relations in a significant and consequential manner. The quarrel between Canada-India spans 45 years, rooted in concerns over Ottawa’s perceived leniency towards anti-India activities. Sikhs began migrating to Canada in the early 20th century, gaining prominence by the 1970s. Tensions escalated in the 1970s after India’s nuclear test, upsetting then-Canadian PM Pierre Trudeau. The Khalistan movement found a foothold in Canada. The tragic Air India Flight 182 bombing in 1985 killed 307 passengers and 22 crew members, marking a dark chapter in Canadian history. Language proficiency in English among Khalistani leaders, descendants of Sikh fugitives from the 1980s, further fueled the movement’s growth in Canada.

Justin Trudeau’s election as Prime Minister in 2015 saw a resurgence of Khalistani ideology, whose supporters back the Liberal Party. India’s case against Ripudaman Singh Malik led to his relocation to Canada in 2022. Reports highlighted Khalistan extremism in Canada, while Canada’s open stance towards Sikh For Justice’s referendum raised concerns. Despite efforts to renew ties between the two governments, Khalistani activities continue to strain relations, going against the grain of the desired Indo-Pacific partnership in which India was designated as a “crucial partner” last year.

In diplomacy, interests, not permanent friends or foes, take precedence, with a legacy dating back to Chanakya’s ‘Arthashastra’ and Machiavelli’s ‘The Prince.’ Effective diplomacy hinges on a delicate balance of policy and strategy. In the lexicon of diplomacy, Latin phrases like “persona non grata” gained notoriety in the context of Devyani Khobragade’s expulsion, while “consular access” became synonymous with Kulbhushan Yadav’s case. In the intricate diplomacy involving India, China, and Pakistan, the term “common enemy” succinctly captures the prevailing dynamic.

In T.N.Kaul’s book “Diplomacy in Peace and War,” Henry Kissinger’s diplomatic expertise is scrutinised, shedding light on the nuances of diplomacy and its occasional exceptions. “Ping pong diplomacy” characterised China-U.S. relations through table tennis, while “oil diplomacy” referred to Iran’s discounted oil sales to India. The latest addition is “gold diplomacy” from Kerala in India, involving clandestine gold smuggling in diplomatic baggage. This intriguing development underscores Indians’ profound affinity for gold, viewing it as a symbol of beauty, luxury, investment, and allure. India accounts for a third of global gold consumption, highlighting the nation’s insatiable appetite for the precious metal. 

Clandestine gold smuggling via diplomatic channels seems like a familiar story, but understanding the concept of diplomatic baggage is crucial. According to the Vienna Convention of the United Nations, diplomatic baggage comprises items intended for the official use of a diplomatic mission or consular official, as well as articles meant for their families. The Convention specifies that family members can be citizens of the sending country or individuals granted diplomatic security and special privileges by the host nation. Importantly, both the Vienna Convention and India’s Customs Prevention Manual emphasise that customs officials are not authorised to impede or inspect diplomatic or consular baggage. An article is considered diplomatic once the sending country affixes its official seal, as stipulated by any international treaty. To grasp the difference between ambassadors and high commissioners, it should be noted that high commissioners are appointed by former British colonies and by the erstwhile paramount power Great Britain amongst themselves, while ambassadors represent all other countries. Diplomats serve as emissaries of their home countries on foreign soil, with embassies typically established in the host capital. 

Upon arriving in host nations, ambassadors and high commissioners formally present their credentials to the head of state and assume responsibilities on behalf of their governments’ leadership. The designations of first secretary, second secretary, third secretary, consul general, consul, and attaché are bestowed upon individuals appointed by their respective countries to provide vital support. While embassies typically find their home solely in capital cities, consulates are strategically positioned in major commercial and trade hubs. The appointment of attachés and other officials is a prerogative held by their home countries, intended to reinforce their roles as representatives abroad.

Diplomatic officials, under the umbrella of diplomatic security, commence their duties with host country approval. Additional personnel from the host nation may also assist diplomats, temporarily or permanently. The host country is responsible for vetting these individuals’ qualifications and backgrounds, typically through its police department. Local appointees lack diplomatic privileges and may face legal consequences for criminal activities. The 1961 Vienna International Summit brought about key diplomatic rights and immunities, laid out in the 29th amendment to the Convention on Diplomatic Relations. This amendment grants diplomats and their offices complete tax exemption in host countries, encompassing customs, professional, road, and property taxes. Furthermore, in India diplomats and their families enjoy an INR 20 lakh import allowance for goods, as outlined in the Central Ministry of External Affairs’ 4th protocol handbook. Crucially, under the Vienna Convention, diplomats remain immune from criminal or civil prosecution unless their home country revokes their diplomatic security. Recent cases highlight the limits of this immunity, as diplomats involved in crimes were repatriated without facing legal consequences. Countries have specific policies to protect diplomats, varying slightly between diplomatic and consular staff. Diplomatic staff enjoy broader immunity, extending to all crimes, while consular staff are shielded solely for crimes committed during the performance of their official duties. The host country has the discretion to decide on security coverage. Recent incidents, such as the alleged involvement of UAE Consul General Jamal Hussain Al Sabi and Attaché Rashid Khamis Al Ashmia in a gold smuggling case, raise questions about the scope of diplomatic security. While their roles may be evident, diplomatic immunity shields them from penalties or interrogations. The request is straightforward: conclude the investigation, provide necessary documents, and subject them to legal scrutiny in accordance with host country laws, given their current presence in their home nation. 

In the realm of diplomatic security, any perceived threat to a diplomat under cover warrants prompt notification to the Protocol Department of the External Affairs Ministry. Notably, both the Chinese Embassy and the Pakistan High Commission, operating under diplomatic security cover, receive enhanced protection due to potential threats. Indian offices in these nations similarly benefit from security arrangements tailored to the host country’s circumstances.

While the Delhi Police provide security for embassies in Chanakyapuri when threats arise, ensuring security within the official premises remains the responsibility of the host country. For instance, American military forces ensure the safety of U.S. Embassy officials. Meanwhile, Indian diplomatic personnel have enjoyed security coverage in Canada for years due to threats from Khalistan separatists. Diplomatic tensions often make headlines, as was the case when the U.S. called for the closure of China’s consulate in Houston in June 2020. This marked the onset of a diplomatic skirmish between the two nations, with the U.S. citing violations of the Vienna Convention as the reason for closure. The consulate was ordered to cease all activities within 72 hours, a move justified by then-President Trump as a means to protect American intellectual property and individual privacy. This unexpected U.S. action further strained already fragile relations, exacerbated by the COVID-19 pandemic and controversies surrounding Hong Kong. China maintains five consulates in the U.S. in addition to its embassy in Washington, D.C., while the U.S. operates one embassy and five consulates in China, including one in Hong Kong. The diplomatic engagement between the two nations dates back to 1979, when China opened its first consulate in Houston. The U.S. accused China of intellectual property theft related to COVID vaccine development, a claim vehemently denied by the Chinese Communist Party, which asserts that the nation has its own research capabilities.

The global diplomatic landscape was similarly roiled when Turkey contemplated expelling diplomats from ten countries. The discussion about diplomatic security cover gained prominence amidst this dispute. Ultimately, Turkish President Recep Tayyip Erdoğan rescinded the decision to expel these diplomats, prompted by their joint appeal for the release of Osman Kavala, a social activist imprisoned in Turkey. The  threatened expulsion of diplomats from European and other countries, including the U.S., Germany, Canada, Denmark, Finland, France, the Netherlands, New Zealand, Norway, and Sweden would have gravely impacted Turkey’s relations with NATO. Erdoğan had ordered their expulsion in response to their collective demand for Kavala’s release, viewing it as a challenge to his authority. Kavala had been sentenced to imprisonment on charges related to his alleged involvement in funding nationwide protests in 2013 and his role in the failed coup attempt of 2016. It bears mentioning that the European Court of Human Rights ordered Kavala’s release in 2019, with the European Council also advocating for the implementation of this ruling.

On 21st September in Canada’s Winnipeg, another Khalistan supporter Sukhdool Singh aka Sukha Duneke was reported as murdered. Sukhdool Singh had evaded Indian Justice and fled to Canada by forging documents to get away in 2017. This incident opened a can of worms that will have people divided about the definition of the term “terrorist” itself. A terrorist for one is easily labelled a revolutionary leader by another. Canada needs to take a strong stance in dealing with organisations and individual residents with terrorist agendas. The Five Eyes intelligence alliance, formed by Australia, the UK, the US, Australia, New Zealand and Canada is a network of anglophone countries sharing intelligence. Such a move could save the lives of innocent people and assert the sovereignty of the state over transnational radical and subversive activities. 

In this intriguing scenario, the Indian and Indo-Canadian population can be offered a sage piece of advice: “Opinion is not an iron rod,” reminding us of the fluid nature of perspectives within the diplomatic sphere. It is often said that diplomats can fall prey to a peculiar ailment known as the “Stockholm Syndrome,” whereby they develop an affinity for the leaders of the host government. This devotion can sometimes erode the trust of their own government in them. “A Guide for Diplomatic Training” by Sir Ernest Satow, the former British Ambassador to China, is often hailed as the diplomatic Bible. Remarkably, even today, this book, initially published in 1917, continues to hold relevance. Sir Henry Wotton, a British diplomat, once humorously remarked, “An ambassador is an innocent person who is sent to a foreign country to tell lies there for the sake of the home country.” In a way, it encapsulates a facet of the diplomatic craft itself.