The killing of two Kerala fisherman off the Indian coast by Italian marines has become an international issue. All cases are on hold and a lot depends on the international tribunal’s verdict whether it has the power to arbitrate on the matter
By Papia Samajdar
In February 2012, 20.5 nautical miles off the coast of Kerala, two marines Massimiliano Latorre and Salvatore Girone—in an oil tanker flying an Italian flag had shot dead two unarmed Indian fishermen. They claimed the fishing boat was on a collision path with the tanker, hinting at the likelihood of the boat being a pirate vessel. Twenty rounds of automatic ammunition were fired by the marines although not even a single bullet flew back their way. The tanker, MT Enrica Lexie, had taken off from Sri Lanka and was headed to Djibouti (Africa), carrying a crew of 34 accompanied by six Italian marines.
The Italians maintained they feared pirate attacks, though there were no alerts on that day, February 12. Italy also asked for diplomatic immunity for the two marines as they were on duty serving the government of Italy.
However, diplomatic immunity under the United Nations Convention on the Law of the Sea (UNCLOS), 1982, is not applicable to officers on commercial ships, and hence India (Kerala Police followed by the Union of India) charged the marines under IPC for murder.
The Italians have been contesting the investigation and the jurisdiction of the Kerala Police, the Kollum district court, the Kerala High Court and the National Investigation Agency at the Union level. A special tribunal had to be set up by the then Cong-ress-led UPA government when it decided to take over the case.
In the judgement to the writ petition filed in India’s Supreme Court by the Italians, contesting the legality of Kerala Police’s right to investigation, the chief justice of India (CJI) held: “Admittedly, the incident took place at a distance of about 20.5 nautical miles from the coastline of the State of Kerala, a unit within the Indian Union. The incident, therefore, occurred not within the Territorial Waters of the coastline of the State of Kerala, but within the Contiguous Zone, over which the State Police of the State of Kerala ordinarily has no jurisdiction.”
While commenting on the stand taken by the Union of India and Kerala, the CJI observed that “the State of Kerala had no jurisdiction over the Contiguous Zone and even if the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the Contiguous Zone, it did not vest the State of Kerala with the powers to investigate and, thereafter, to try the offence. What, in effect, is the result of such extension is that the Union of India extended the application of the Indian Penal Code and the Code of Criminal Procedure to the Contiguous Zone, which entitled the Union of India to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the contiguous Zone.”
On the legality of the jurisdiction of the Union of India, the court maintained that “while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian Marines under the criminal justice system prevalent in the country.”
International Tribunal for the Law of the Sea has passed an interim order asking the states involved to suspend all proceedings regarding the case, until it is clear whether the tribunal has jurisdiction in this case. Politically, India can’t take a back seat. The case has become a high-profile one with the media watching over it like a hawk on all the developments—including political and diplomatic efforts to bring the perpetrators to justice. Though India has tried to pacify the Italians through diplomatic means, the latter have remained bull-headed, denying Indian jurisdiction in the case. The Italians maintain that since the incident happened in the high seas, due to the threat of piracy, and because the officials were on state duty on board a ship flying an Italian flag, the case should be tried under the Italian law.
Although murder under IPC is a non-bailable offence, the center, which took over the case after the Italians refuted the Kerala High Court’s jurisdiction, not only gave bail to the two accused marines, but also allowed them to fly back to their country to vote, for Christmas and for medical treatment. The Indian government has been falling over itself to make sure none of the civil liberties of the marines are compromised even when they are charged with murder.
Italy, unhappy with the application of Indian jurisdiction and facing pressure at ho-me, did not even wait for the Supreme Court ruling on August 26, 2015, which halted all court proceedings against the marines. It even appealed to the International Tribunal for the Law of the Sea under Article 290 para 5 of UNCLOS seeking provisional measures. Italy demanded that
(a) India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie incident on the high seas, and from exercising any other form of jurisdiction over what transpired,
(b) India shall take all measures necessary to ensure that restrictions on the liberty, security and movement of the marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings before the Annex VII Tribunal.
The tribunal, according to Article 290 of UNCLOS (if it has prima facie jurisdiction), may prescribe provisional measures if it considers appropriate.
However, the question that one may ask here is: Is there sufficient reason for a prima facie case?
The UNCLOS tribunal does not have the jurisdiction to try this case, as it is a domestic murder. The murder of the two fishermen happened on an Indian boat, off the Indian shore, on the Indian contiguous zone, impacting the Indian people.
Though UNCLOS is not explicitly clear about crimes such as these, one must refer to the dissenting note of Judge Lucky, one of ten judges hearing the Enrica Lexie incident case at the international tribunal. He observed: “For the avoidance of doubt, and to support my view that an Annex VII tribunal will not have jurisdiction to deal with this case, I have searched and can find no provision in the articles of the Convention to support the submission that a case of murder in the EEZ involving accused of one State and victims of another can be tried by an international tribunal. This is a matter for the domestic court of the relevant forum. Municipal or domestic courts have the experience to hear and determine criminal cases.”
Criticizing Italy for dissenting with the conduct of the Indian jurisdiction, Judge Lucky also notes it as an abuse of process. “It seems apparent to me that Italy engaged the Judicial system of India with several applications, for bail, conditions of bail, jurisdiction and for a stay of investigation and a stay of judicial proceedings. All these applications were addressed by the Supreme Court during the past 3½ years. In July this year Italy filed this case for provisional measures notwithstanding that the Supreme Court of India is considering the matter and a Special Court has been established to hear and determine issues relating to jurisdiction and related matters. I find that an abuse of process is evident.”
The debate on jurisdiction may get resol-ved when the tribunal takes a call on its jurisdiction in the case. It has given its first decision by asking both Italy and India to suspend the trial.
Both the countries have made their submissions to the international court as was mandated. The president of the tribunal might ask for more documents if needed, before issuing the order.
— The author was senior communication officer with Centre for Policy Research