India must not cast anchor in ‘Enrica Lexie’
Italy has achieved its basic objective in the Enrica Lexie-St. Antony matter. It wanted its two marines, Massimiliano Latorre and Salvatore Girone, to stand trial for killing two Indian fishermen, Ajeesh Pink and Valentine Jelastine, not in India but in Italy.
What was the case?
The marines were part of a security contingent on the Enrica Lexie, an Italian commercial oil tanker while Pink and Valentine were on the Indian fishing boat, St. Antony. The incident took place on February 15, 2012, in India’s Contiguous Zone, 20.5 nautical miles off the Kerala coast.
ITLOS decision –
- The tribunal, established by the International Tribunal for the Law of the Sea (ITLOS) under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS), held that the marines were “entitled to immunity in relation to the acts that they committed during the incident of 15 February, 2012, and that India is precluded from exercising its jurisdiction over the Marines”.
- India had opposed Italy’s request for an arbitral tribunal but ITLOS ruled in Italy’s favour.
- ITLOS had asked both countries to “suspend all court proceedings” and “refrain from initiating new ones” that may “aggravate the dispute” or prevent the implementation of the Arbitral Tribunal’s decision.
What happens now?
- Italy will now continue with the case it had registered against Lattore and Girone. It is highly unlikely though that any Italian court will convict Lattore and Girone for Pink and Valentine’s unjustified killing.
- The reported humanitarian assistance that the Italian authorities gave their families can never be taken as justice for the lives snuffed out by two trigger-happy members of the Italian armed forces who, without any justification, considered the fishing boat to be a pirate skiff.
- Only the operative portion of the tribunal’s award is available till now. The detailed award is being scrutinised by India and Italy for redactions of those portions either country feels are confidential, and therefore cannot be publicly disclosed. It is unlikely then that Italy would allow facts prejudicial to its version to be made open.
- The legal points on the jurisdiction of the two countries to try the marines and the immunity issue should become available hopefully somewhat soon. They would enable a full assessment to be made of the reasoning adopted by the majority to reach its conclusions on these important issues.
Argument of India –
- The Ministry of External Affairs statement on the award notes “The Tribunal observed that India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines.” Prima facie then the tribunal should have allowed the case to continue in India for the victims were Indians and the Enrica Lexie came voluntarily to India and after investigations a case was lodged against Lattore and Girone.
- It is noteworthy that the tribunal did not accept Italy’s charge that India brought the Italian oil tanker by a ruse to Kochi.
Issue of immunity –
- India’s stand that UNCLOS is not concerned with issues relating to immunity was strong. Immunity of state officials has to be governed by specific multilateral or bilateral treaties or agreements. It should not be tangentially brought in to settle issues of jurisdiction. Besides, even if Italian marines are considered as state officials, they were deployed on an Italian 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.
- 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.
What India must do now?
- 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.
As a good international citizen, India has accepted the tribunal’s award. Now it must ensure that Italy fully honours it. The matter remains open.
Source – The Hindu
QUESTION – Discuss the decision of ITLOS in the Enrica Lexie case in terms of its wider implications on international law. Also, suggest what India should do ahead to secure justice for its two citizens who have been the victims in the case.