The Government of India said it was studying an international tribunal’s ruling that the Italian marines accused of killing two fishermen in the waters off Kerala on February 15, 2012, held “immunity” and would face a trial in Italy, not India.
While the tribunal held in Italy’s favour the main submission, of jurisdiction, it found merit in India’s counter-claim that the marines on board “Enrica Lexie” had violated the freedom of navigation rights under the United Nations Convention on the Law of the Sea (UNCLOS) by shooting at fishing boat “St. Antony” and should pay compensation to the victims’ families, the boat owner and crew members.
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In their defence, the marines had claimed they mistook the fishermen for “pirates” and that the shooting occurred in international waters.
In its submissions, India had called on the Permanent Court of Arbitration (PCA) UNCLOS tribunal to “adjudge and declare that it [PCA] has no jurisdiction with respect to the case submitted to it by Italy”. However, a majority of the court's five- member bench ruled 4-1 that it had jurisdiction in the matter, and ruled 3-2 that the marines Massimiliano Latorre and Salvatore Girone held immunity. According to the Italian government, the marines were “State officials exercising official functions”.
Ministry of External Affairs spokesperson Anurag Srivastava said, “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. However, it found that the immunities enjoyed by the marines as State officials operate as an exception to the jurisdiction of the Indian courts and, hence, preclude them to judge the marines. India has taken note of the award and will be in touch with relevant entities on the matter.”
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The Italian government, which was the plaintiff, said it would carry out the decision of the arbitration court “in a spirit of cooperation” with India. As a result, Italy will resume its criminal investigation into the ‘Enrica Lexie’ case, while India “is required” to cease exercising its jurisdiction on the marines.
The tribunal also held that India was entitled to compensation “in connection with loss of life, physical harm, material damage to property [including to “St. Antony”] and moral harm suffered by the captain and other crew members, as Italy had breached India’s freedom of navigation rights.
It also struck down Italy’s claim that the marines, who had been kept mostly at the Italian Embassy in New Delhi before being repatriated by the government in September 2014 and 28 May 2016, were entitled to any compensation at all.
“A cold-blooded murder”
“What happened was a cold-blooded murder, and the marines were given 7-star treatment [in India]”, said senior advocate K.N. Balagopal, who appeared for Kerala in the case before the Supreme Court in the matter. “Compensation is anyway granted in such cases; the marines should have stood trial in our courts for the crime committed”, he added. He called the verdict less than a victory “though there is some vindication to an extent”.
After several years, during which the case became a political controversy in India, Italy decided to invoke the International Tribunal for the Law of the Sea (ITLOS) court in August 2015. The court directed a stay on the proceedings in India pending Italy’s case at the Permanent Court of Arbitrage at The Hague in Netherland. The Supreme Court, which had been hearing the matter, suspended its proceedings shortly after.
In its case, Italy had criticised the Indian government for detaining the marines without charging them, and of causing their health to deteriorate during the period of delay. The matter led to a long freeze in diplomatic relations between India and Italy, which were reset only in 2016, when then External Affairs Minister Sushma Swaraj visited Rome for the canonisation ceremony of Mother Teresa and met with her Italian counterpart.
( With inputs from Krishnadas Rajagopal )