When Canadian officials announced this week it had expelled six Indian diplomats for alleged links to criminal activity targeting Canadian citizens, they said the action was taken after India refused to waive diplomatic immunity.
That immunity shields foreign diplomats from criminal proceedings, including questioning by police in an investigation.
Global News reported that agents working out of India’s high commission in Ottawa and consulates in Vancouver and Toronto were allegedly behind dozens of violent crimes across Canada that targeted opponents of the Narendra Modi government.
Canada expelled the six Indian diplomats, including the high commissioner, after the RCMP and government officials made their investigative findings public Monday.
India swiftly retaliated by ordering six Canadian diplomats to leave the country by Saturday.
The revelations come as Canadian law enforcement continues to probe the killing of Hardeep Singh Nijjar in Surrey, B.C., where the killers were allegedly tied to Indian government agents.
Although diplomatic immunity is meant to be reciprocal between countries, it also means diplomats may never face accountability for alleged criminal actions on foreign soil.
“Canada’s options are very limited,” said Akaash Maharaj, a senior fellow at the Munk School of Global Affairs and Public Policy at the University of Toronto.
What is diplomatic immunity?
At its core, diplomatic immunity is a principle of international law that allows diplomats to gather, share and communicate information without fear of criminal prosecution under local laws.
The Vienna Conventions of 1961 and 1963 outlining international standards of diplomatic immunity note the concept dates back to ancient times, which recognized that messengers were allowed to travel from tribe to tribe without fear of harm.
More than 160 countries are signatories to the Vienna treaties, including Canada and India. Those countries each have their own domestic laws that outline their commitment to the conventions.
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Under Canada’s Foreign Missions and International Organizations Act, individuals accredited as “diplomatic agents” are granted full diplomatic immunity from arrest, detention and the legal process.
That means they cannot be arrested, detained or compelled to provide evidence or testimony, and are fully immune from the criminal or civil legal process. They are also not subject to searches of their office, residence or vehicle, or personal and baggage searches at airports.
However, those officials are still obligated to observe and respect the laws and regulations of the host country.
“Diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs,” the U.S. State Department says.
Other lower-ranking consular and diplomatic staff have limited protections that grant them immunity only over their official duties.
Last October, shortly after Prime Minister Justin Trudeau first made public the allegations about the Indian government’s ties to Nijjar’s murder, Canadian officials said the government had recalled 41 diplomats and their families from New Dehli after India said it would “unilaterally” remove their immunities.
Foreign Minister Melanie Joly said at the time such an action was a violation of international law and created ” security implications” for those diplomats.
“If we allow this norm to be broken, no diplomat anywhere would be safe,” she said in a statement.
What recourse is available?
Under international law, if an immune diplomat breaks the law of their host country, that country can ask the other to withdraw diplomatic immunity for that official.
If that country refuses, the host can expel the diplomat — which is what Canada did this week.
It would then be up to the host country to decide how — or if — it wants to punish their diplomat.
Expelled foreign diplomats have faced punishment in the past for actions on Canadian soil once back home.
In 2001, a Russian diplomat was driving drunk in Ottawa when he drove his vehicle 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 fired upon his expulsion to Russia, and was later charged and convicted on charges of involuntary manslaughter.
“That was a case where the home government felt embarrassed by a diplomat who did something on his own behalf,” Maharaj said.
He said the Indian case, by contrast, involves higher-ranking diplomats accused of acting on orders from the Indian government — allegations it has strenuously denied.
“There’s very little that (Canada) can do unless the (Indian) government is prepared to throw its diplomats under the bus, which it isn’t prepared to do in this case,” he said.
Maharaj said Canadian victims and their families could pursue civil cases against the Indian agents once they return to India, but that process would likely take years. So would waiting for a new government to replace Modi’s and allow criminal proceedings to take place.
Under the international rules for diplomacy, it is up to host countries to decide whether to admit entry to all foreign diplomats.
That means that, other than expelling officials accused of criminal activity, Canada could choose to simply not admit any replacements from India until the diplomatic row is resolved.
Although Indian consular offices in Canada would remain open and staffed, such an entry freeze would ensure those in charge of diplomatic missions would not be subject to the same broad immunity as the diplomats who were expelled, Maharaj said.
A similar arrangement was proposed to Iran in 2016 when the Trudeau government attempted to re-normalize diplomatic relations with Tehran, which ultimately refused the compromise.
Beyond that, Canada will have to rely on its allies to exert pressure on India to co-operate in the Canadian investigation. Both the United States and Britain have urged India to do so.
