With Italy’s refusal to send back its marines to face trial for killing two Indian fishermen off Kerala, the legal question is whether a sovereign state is legally bound by an undertaking given by its diplomat to the Supreme Court of another country.
In its February 22 order allowing Massimilano Latorre and Salvatore Girone to travel to Italy, a Bench, headed by Chief Justice of India Altamas Kabir, pointed to Ambassador Daniele Mancini’s affidavit that “under the Italian laws, the petitioners [the marines] are not entitled to cast their votes [in the February 24-25 general election in the country] in their present circumstances and that they have to travel to Italy for the purpose.”
The court agreed to the Ambassador’s undertaking of “full responsibility” for the marines’ return to India in four weeks.
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Legal experts say Italy, having submitted itself to the Supreme Court’s jurisdiction, cannot claim immunity now. “This is a serious matter. We are primarily concerned with the rule of law. The decision of the Supreme Court has to be given due regard in and outside the country,” Solicitor-General Mohan Parasaran told
The question of immunity was “complicated” and required discussions at the highest level, he said speaking on the phone from New Delhi.
Counsel for Kerala Ramesh Babu said Italy was “bound to comply with the Ambassador’s undertaking but the question is what legal option we have if they do not comply with it. Usually, the court issues an arrest warrant, but here we cannot go and arrest them in Italy. Ultimately, we may have to go for a diplomatic solution.” In its order, the Supreme Court reasoned that since the marines earlier went to Italy for Christmas — after the Ambassador gave a similar undertaking to the Kerala High Court — and returned on time, they would do so this time too.
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The Bench, which included Justices Anil R. Dave and Vikramjit Sen, even entitled the marines to travel on “temporary passports/travel documents.”
But the Kerala High Court had imposed stringent conditions for allowing them to travel home for Christmas, including a guarantee of Rs. 6 crore. It also held that the marines could leave India only if the Union government was satisfied with the undertakings given by the Italian Ambassador and the Consul-General to take responsibility for their return.
The February 22 order also explains why the Bench decided to use the Kerala High Court’s decision as a precedent for granting the marines permission in the light of the Supreme Court’s ruling on January 18 that Kerala had no jurisdiction to try the marines.
“The Republic of Italy has, in fact, from the very beginning asserted its right to try the marines and has already commenced proceedings against them in Italy under penal provisions which could result in a sentence of 21 years of imprisonment if the accused are convicted. In such a scenario, the State of Kerala, as one of the units of a federal unit, would not have any authority to try the accused, who were outside the jurisdiction of the State unit,” the Supreme Court said.
But all the more revealing is a note verbale from the Consulate-General of Italy in Mumbai to the Ministry of External Affairs on February 29, 2012.
This communication, reproduced in the January 18 judgment of the Supreme Court, says: “They [the marines] have entered Indian territorial waters and harbour simply as a military force detachment officially embarked on the Italian vessel Enrica Lexie in order to cooperate with Indian authorities in the investigation of an alleged piracy episode.
The entry in Indian territorial waters was upon [an] initial invitation and then under [the] direction of Indian authorities.”