Fishing in Troubled Waters

Trade-off? The marines returned on Delhi’s assurance that they won’t face the death penalty.
Trade-off? The marines returned on Delhi’s assurance that they won’t face the death penalty. Photo: AP

ALTHOUGH THE Italian foreign minister has resigned over the issue of sending the two Italian marines to India, the diplomatic row between the two countries seems to have blown over for now. The Delhi High Court has set up a special trial court headed by the Chief Metropolitan Magistrate of Patiala House Court to try the two marines. However, many issues continue to be unclear and open to debate, namely jurisdiction, diplomatic immunity and legal assurances.

On 15 February 2012 Jelestine (45) and Ajeesh Pinku (22) were shot dead aboard a fishing vessel by two marines on board an Italian liner, 22.5 nautical miles (NM) off the coast of Kerala. While the report submitted by the Indian Coast Guard says that the fishing vessel was 100 metres away from the liner and presented no danger to it, Massimiliano Latorre and Salvatore Girone, two of the six Italian marines serving as guards aboard the commercial liner, Enrica Lexie, opened fire on the unarmed fishing vessel under the impression that it was a pirate ship.

“Though Somali pirates have been known to operate in the waters off Lakshadweep, these waters, 22 NM of the Kerala coast, are not known for piracy,” says a defence personnal.

Four days later, on 19 February, after an investigation, Massimiliano and Salvatore are arrested by the Kerala Police on charges of murder under Section 302 of the Indian Penal Code.

Their arrest raised questions of jurisdiction. International maritime laws stipulate that territorial waters of a country are restricted to 12 NM from the coast. All laws of the land apply in this zone. However, the incident happened 22.5 NM off the coast of India, well outside India’s territorial waters.

The issue of jurisdiction has been quite controversial and according to Supreme Court lawyer Rajeev Dhawan, it “is unclear”. There are multiple arguments that have come to the fore. As the accused are military men; they should have the right of honourable appeal by which jurisdiction. India and Italy also have a treaty that allows prisoner exchange — the convicted can serve their sentence in their country of origin.

However, the India Maritime Zones Act establishes a 24 NM ‘Contiguous Zone’, within which India can exert control for the purpose of preventing or punishing “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea”.

The incident took place within India’s Contiguous Zone. The Act empowers the Central government to exercise such powers and take such measures in or in relation to the Contiguous Zone as it may consider necessary with respect to (a) the security of India, and (b) immigration, sanitation, customs and other fiscal matters”. It allows the government to extend any law to the Contiguous Zone in respect of (a) and (b), but makes no no reference to criminal jurisdiction.

Italy, therefore, moved the Kerala High Court, in an attempt to quash the first information report (FIR) registered against the two marines. It argued that the offence did not take place in Indian territorial waters or on board of an Indian vessel and under the principles of international law and conventions ratified by India, Indian courts have no jurisdiction to register a crime in connection with the incident. They further argued that as the marines had been deputed to provide security and were in international waters, they should face trial in Italy.

“There is an increasing number of countries that have begun exercising criminal jurisdiction in extended coastal waters,” says legal scholar VS Mani. “Article 245 (2) of the Constitution of India permits extraterritorial application of laws, if a reasonable nexus is established between the subject matter of the law and the Indian coast. Thus for instance, Article 6(2) of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, permits the State to claim jurisdiction if its citizen is a victim, or the State itself is a target of an unlawful act under the convention.”

Says PhD scholar Jaideep Prabhu: “India’s interpretation of the United Nations Convention on the Law of the Sea (UNCLOS), extends security as well as economic rights to 200 NM from the coastline (inclusive of the territorial waters and the Contiguous Zone). Italy disputes India’s – interpretation of extending security rights, and claims that UNCLOS provides State actors immunity from prosecution.” Given the ambiguous nature of the law, Italy has continued to argue that the incident should be resolved at a diplomatic level, but India has refused.

The debate of jurisdiction is internal as well. On 18 January, the Supreme Court of India held that jurisdiction to investigate into the incident was only the Indian Union’s prerogative and not Kerala. This is because the incident occurred in the Contiguous Zone. Amidst protests in Kerala, where the episode has taken on an emotional hue, a special court is slated to be set up in Delhi to hear the case on a daily basis from April 2013.

Diplomatic Immunity
In February, the Supreme Court allowed the two marines to travel back to Italy to vote in the national elections. Their detention was a major political issue in Italy and huge public opinion rallied around their release. On 11 March 2013, pending the dispute over jurisdiction with India on the interpretation of a clause in the UNCLOS, Italy refused to send back the marines. It put forward the same argument that since the ship was in international waters at the time of the shooting, the two marines should be tried in Italy.

Unlike the Kerala High Court, which had taken a bond of 6 crore when it allowed the marines to return home for Christmas, the apex court settled for an undertaking given by the Italian ambassador to New Delhi on 9 February that the marines would return home before the trial. The refusal to meet the 22 March deadline left the Supreme Court looking helpless and stirred a hornet’s nest. “The ambassador went to the court and undertook a commitment to it. Then where does the issue of jurisdiction come up? You have already submitted a promise to the court?” asks eminent jurist Soli Sorabjee, former Attorney General of India.

Meanwhile, the Supreme Court issued an order preventing the Italian ambassador from leaving India. Its logic was simple: since the ambassador had filed an undertaking in the court taking full responsibility, he had to answer for their absence. “The failure of the marines to return to India would be a breach of the sovereign undertaking given by the Republic of Italy to the Supreme Court of India,” the court said.

According to senior advocate Rajeev Dhawan, the Supreme Court was well within its rights to pass such an order. “The Supreme Court’s order does not trade international legal niceties on diplomatic immunity but concerns an abuse of its processes,” says Dhawan. “The Italian ambassador submitted to the Court’s jurisdiction voluntarily on behalf of Italy and failed to comply with his own undertaking. This was a civil and criminal contempt of the Supreme Court and calculated to undermine India’s Constitution based on the rule of law.”

Diplomatic Assurances
Just as the diplomatic row threatened to reach crisis levels, calm was restored when the Italian government reversed its decision on the marines on 20 March. The reversal came in light of certain written assurances by the Indian government to the Italians, namely, the marines would not face the death penalty and that they would be granted bail.

While the marines’ return is being touted as a diplomatic victory for India, Dhawan feels that “such assurances are given only in the case of extradition. This is not such a case. We have to come clean about what exactly has been done”.

The future of the case, however, is unclear as the issue of jurisdiction is still open to debate.

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