Judgement Analysis of the 'Enrica-Lexie' Incident (Italian Marines Case)

Sep. 01, 2020 • Architi Batra

[Profile of the author: This article is written by Akshit Gupta, a third-year BBA.LLB student from Bharati Vidyapeeth New Law College, Pune.]

INTRODUCTION

The turbulent waters of the seas have been plagued with conflict and strife. Over the years, shipping channels and inland water bodies have been claimed as sovereign properties of nations lying in proximity to them. With international boundaries blurred under the expanse of the big blue, it only falls to the mutual accords of territorial neighbours to settle disputes in whichever manner they may seem fit. In medieval times, it was not uncommon for ships and naval vessels of some alien nation being remorselessly obliterated, or in a more humane treatment, intercepted, and it’s crew arrested prosecuted by the naval authorities. Seafaring laws, being a matter of reasonable age and endemicity, hinges on certain widely acknowledged and concurred conventions and agreements, yet, the need for a codified set of rules, regulations and protocols are the direst need to ensure international waters remain free from encroachment and exploitation. The United Nations Conventions on the Law of the Sea (UNCLOS), is the principal instrument ratified by the 167 member states of UN in 1982 to, spell out formal rules on responsibilities pertaining to nation’s usage of these natural water bodies. The Conventions hold much substance with regard to the delimitation of international territories, which can be corroborated with the fact that 34 nations, including India, have set the 12-nautical mile territorial limit from their coastal baseline. Yet, the complacency of international laws and conventions can never be proven, due to the fact that contraventions are always present, no matter what. Speaking in ambiguous terms, the near-decade-long maritime row between Italy and India over the infamous Marines aboard the Enrica Lexie, accused of killing Indian fishermen off the coast of India, is far from over. With the matter appealed to an International body of adjudication, India seeks to fight and win this battle on the fronts of jurisdiction and allegations.

BACKGROUND

In February 2012, Ajesh Bikini and Valentine aboard the St. Anthony, a fishing vessel, were reportedly killed by two Italian Marines aboard the Oil Tanker Enrica Lexie, off the coast of Kerala. The Indian Coast Guard promptly intercepted and compelled to course towards the Port of Kochi in relation to the said incident. Upon weighing anchor, the two marines were arrested by the local police and kept in remand. The Marines gave justification for their act of killing as they presumed the ‘sailors to be pirates’. The police further charged the marines under Section 302 of IPC, based on the post mortem report of the two sailors. The Italian Government, upon learning of such arrests, criticized the Indian government for arbitrary prosecution without jurisdiction and violating the human rights of the marines. The Marines were returned to Italy in 2013, on parole, and the proceedings continued. A major contention of Italy, throughout the length of this dispute, has been that since the said incident took place well outside Indian territorial waters, She had no jurisdiction whatsoever to test the merits of the case. Also, The defendant held that since the marines were Government officials, engaged in official duty at a high-risk zone, they should be subjected to complete immunity from any criminal proceeding or moderate accusations. India countered this argument by claiming that the Marines had violated their Freedom of Navigation and Movement at Seas guaranteed Under Section 87 and 90 of the UNCLOS, therefore such prosecution stood justified.

In 2014, the National Investigation Agency (NIA) had filed an FIR against the marines on charges of murder, nuisance and conspiracy. Furthermore, The government attempted to bring the acts of the two marines under the ambit of terrorism under The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,1988. Much to the Chagrin of the Italian Government, they tried to move international sentiment behind the two accused marines by calling out India’s moves as “extra-jurisdictional” and “unsubstantiated”. In retaliation, a petition was submitted before the Kerala High Court, seeking immediate cessation of all local ongoing investigation on the grounds of lack of jurisdiction. The matter was furthered appealed in The Supreme Court, where arguments and counter-arguments ensued between the two nations. The Italian Counsel maintained that the marines were under exclusive immunity from prosecution by the fact of being state officials acting on official duty. India rebutted this contention by saying that such immunity would not stand in the case of any private shipping vessel merely harbouring state officials or sovereign authorities on board. The bilateral cold war continued for a few years, with no resolution in sight.

INDIA – ITALY FACE-OFF

After Italy took India to the International Tribunal for the Law of the Seas in 2015, pursuance of a resolution. The facts of the case thus filed before the Supreme Court in chief Master Sargeant Massimiliano Latorre and Others v Union of India and others [1]. Were deemed immaterial in light of the matter been consulted before an international Tribunal. Italy submitted its reports pursuant to Article 290 of UNCLOS and sought provisional measures to be followed by the Indian side in the deliberation of this matter. The measures were sought before the International Tribunal for the Laws of the Seas (ITOLS), Hamburg in mid-2015. In its argument, Italy submitted it’s By early 2016, India had submitted its counter-arguments before the Tribunal. The ITLOS provided the first opportunity for judicial scrutiny into the case by ruling that both domestic sides should preclude from carrying out domestic court proceedings which might jeopardize the decision of the Arbitral Tribunal.

OSTENSIBLE IMMUNITY

In a petition filed on the behalf of Italy, Supreme Court had entertained the contention of the defendants that the detained marines enjoyed a ‘functional immunity’ from prosecution since they were nationals acting under the direct sovereignty of the Government of Italy. However, India has countered this argument by saying that such immunity does not extend to nationals patrolling aboard VPDs (Vessel Protection Detachments), a body attached to private merchant Vessels. Furthermore, speaking in context with section 95 and 96 of UNCLOS, such immunity extends to warships and state-owned non-commercial ships, it has no explicit provisions for privately-owned commercial or non-commercial vessels. If one further reiterates the impression of the Kerala High Court, it would be clear that the act of shooting was “not in defence of the state of the vessel, but a private, illegal and criminal” act.[2] Unfortunately, the Indian courts later on lost jurisdiction over the case, thereby such judicial proceedings carried by High Courts and Supreme Court were negated, much to the credit of Italy.

THE FINAL VERDICT

On July 2, 2020, the Permanent Court of Arbitration gave its the final ruling in the case directing India to withdraw jurisdiction over foreign nationals. The arbitral award delivered by the PCA also conceded India’s claim for pecuniary compensation for the killings, and other material loss caused by the marines to the fishermen aboard St. Anthony and directed the Italian Govt. to act accordingly. The 5 member bench of the Tribunal ruled out 3-2 that the Marines were, in fact, state officials entitled to immunity sheltered by the state of Italy. It has come as a highly controversial and disputed verdict of the international authority, drawing criticism from both sides alike. While the Indian side took more damaged, it has agreed to work in a spirit of cooperation with Italy in the investigation of this case, since the tribunal observed that both the states had ‘concurrent’ jurisdiction over the matter. In a nutshell. The Court levelled the ground by adducing just and fair decisions in favour of both sides. On one hand, it accorded immunity to the marines and took away India’s claim of jurisdiction, while on the other, dismissed Italy’s claim that the marines were unlawfully detained and mistreated in Indian custody and directed the defendant to furnish compensation for the damaged caused to the Indian property and loss of life incurred such.[3]

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