Italian Marines Case & International Law

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TOPIC: General Studies 2

International Laws

India and the world

In News: The central government has conveyed to the Supreme Court its decision to accept the international arbitration tribunal award, which ruled that Italy, not India, would try the Italian marines involved in the Enrica Lexie case.

The Incident

In February 2012, an Italian flagged oil tanker sailing from Sri Lanka towards Djibouti —shot dead two Indian fishermen at sea, approximately 20.5 nautical miles off Kerala in India’s Exclusive Economic Zone (EEZ). The incident happened on February 15, 2012.

The unarmed victims aboard the fishing vessel St Antony were killed without warning, one shot through the head, the other in the stomach, with automatic weapons. Two Italian marines onboard fired what Italy contends were warning shots at the ship. Two fishermen, Ajesh Binki and Valentine, were killed. India, however, says the vessel was fired at without notice.

Italy has, however, claimed that as the Indian vessel drew close, the marines assessed that it “was on a collision course with the MV Enrica Lexie and that this modus operandi was consistent with a pirate attack”. It claimed that the fishing vessel continued to head towards the tanker despite sustained visual and auditory warnings, and the firing of warning shots into the water.

The case had become a major bone of contention between the two countries with India insisting that it could try them as the incident occurred in its territorial waters. Italy contested this on the ground that the ship flew an Italian flag and hence the crew would be tried under the Italian law.

Italian marines Massimiliano Latorre and Salvatore Girone returned from India to Italy on September 13, 2014 and May 28, 2016, respectively. Italy had approached the International Tribunal for the Law of the Sea, an arbitral tribunal under the International Court of Justice in 2015, and the matter was heard by the Permanent Court of Arbitration in July 2019.

How did the dispute move to an international tribunal?

On June 26, 2015, Italy instituted proceedings against India before an arbitral tribunal to be constituted under Annex VII of UNCLOS. On July 21, it submitted a request before the Hamburg-based ITLOS under Article 290, Paragraph 5 of UNCLOS, seeking “provisional measures” directing India to not take any judicial or administrative step against the marines, and to allow Girone to leave and let both men stay in Italy until the end of the Tribunal’s proceedings.

India asked ITLOS to reject the submission, saying, “The story told by Italy is as short and straightforward as it is misleading… (It) omits several crucial aspects which are the crux of the issue… (and) seriously distorts reality.” The delays that Italy had complained of were “due to Italy’s own delaying tactic”, India said. It added that Italy had, “in reality, not conducted any kind of serious investigation on the facts, thus showing how little they trust in their own thesis of their right — let alone exclusive right — to exercise criminal jurisdiction over the two persons accused of murders”.

What did ITLOS decide?

On August 24, 2015, ITLOS directed that both countries “shall suspend all court proceedings” in the matter, and asked them not to start new proceedings that might aggravate the dispute or jeopardise proceedings of the arbitral tribunal. It said it did not consider the Italian submissions to be “appropriate” because “the Tribunal may prescribe measures different in whole or in part from those requested”.

The Supreme Court stayed all proceedings against the two Italian marines.

The Current Case

In a close 3:2 vote, the tribunal ruled that the Italian marines enjoyed diplomatic immunity as Italian state officials under the United Nations Convention on the Law of Sea. Taking note of the “commitment expressed by Italy” to resume its criminal investigation into the incident, the tribunal said India must cease to exercise its jurisdiction.
The court upheld the conduct of the Indian law enforcement authorities, and declared that Italy had breached freedom of navigation. The tribunal also rejected Italy’s claim for compensation for the detention of the marines.
The ruling also said that in accordance with provisions of the UNCLOS — of which India is a party — and the Rules of Procedure agreed by the parties, the award is final and without appeal and shall be complied with by parties to the dispute.

The court ruled that New Delhi could seek compensation for the deaths of the fishermen who were killed in the incident off the Kerala coast.

The Way Ahead

To be focussed: As a good international citizen, the country has accepted the tribunal’s award; it must ensure that Italy fully honours it. The government should also ensure that it closely monitors the case proceedings in the Italian court against Lattore and Girone. The government should instruct the Embassy in Rome that a diplomat should always be present during court proceedings. It should not accept Italy’s pleas that this would not be possible when confidential information is being presented before the court. If the Italians had gone to the extreme in supporting the marines, India must not show any laxity in securing justice for Pink and Valentine even in an Italian court.

Immunity and Jurisdiction issues: India should also set clear its views and rules around issues of immunity as well as jurisdiction. Even if Italian marines are considered as state officials, they were serving on a commercial vessel. Italy did so unilaterally without the cover of any multilateral or bilateral arrangement. There is no convention that such persons as the marines in such cases are immune from local criminal jurisdiction; only heads of states, heads of governments and foreign ministers customarily enjoy immunity abroad apart from accredited diplomats who are covered by the Vienna Convention.

Should not set a dangerous precedent: The tribunal’s decision on the marines’ immunity sets a dangerous precedent. Countries may now be tempted to enact specific laws to give immunity to their military and para-military personnel and others by declaring them state officials and thereafter place them on different kinds of commercial craft and use them for adventurous purposes. This can lead to an increase in tensions generally and especially between inimical states, and more so if there are problems relating to fishermen between contiguous states.

Major introspection is the need of the hour – if the case was handles well – by the legislature, executive and judiciary. Loopholes need to be fixed. Some questions need to be answered as the delay has led Italy to build sympathy for the marines in the EU.

Was it prudent to appoint the National Investigation Agency to handle the case after the Supreme Court had ordered for a special court to be set up to try the marines?
Should virtually terrorism charges have been levelled against the marines only to be dropped later?
Should the Supreme Court not have decided the jurisdiction and immunity issues ab initio instead of leaving them open?
Should not have ways been found to counter Italy causing deliberate delays to thwart the trial from commencing?

More awareness around basic rights to be provided to the fishermen who are more prone to crossing borders.

NOTE:

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) was established in 1899 and headquartered at The Hague in Netherlands.
It is an intergovernmental organization dedicated to serve the international community in the field of dispute resolution and to facilitate arbitration and other forms of dispute resolution between States.
It has a Financial Assistance Fund which aims at helping developing countries meet part of the costs involved in international arbitration or other means of dispute settlement offered by the PCA.

Exclusive economic zone (EEZ)

The EEZ is a sea zone prescribed under the United Nations Convention on Law of Seas (UNCLOS) and extends up to 200 nautical miles (370 kilometers) from the coastline of the country.
The UNCLOS is an international agreement that defines the rights and responsibilities of nations with regard to their conduct and use of world seas and oceans and management of marine natural resources.
As per Article 56 of UNCLOS, every country has sovereign rights within the EEZ including the right to exploit natural resources, living or non-living.
The incident of shooting at Indian fishermen in 2012 happened within the EEZ. Despite that, the arbitral tribunal came to the conclusion that Italy has not violated India’s sovereign rights.

Connecting the Dots:

Did India lose case against Italy because of lapses by its own Supreme Court? Examine.
There is a need for restoration of normalcy in India-Italy bilateral relations. Discuss.