Italy on Monday refused to return two of its marines being tried in India for killing two fishermen while on duty aboard a merchant ship. The move caught India by surprise as the marines had been let off once before and had returned.
The Foreign Office said it was examining the communication received late in the night from Rome but sources said this step would worsen ties already under strain.
Italy took refuge in the technicalities of an international law in declining to send back the marines. Their detention in India had become a political issue in the recently held Italian elections and was held out as a sign of weakness against then Prime Minister Mario Monty whose party fared badly.
Justifying the move, the new Italian Government said it was refusing to honour an Indian Supreme Court order because India had not responded to requests for a diplomatic solution to the case. Therefore it was now raising a dispute over jurisdiction with India on the interpretation of a clause in the United Nations Convention of the Law of the Sea (Unclos).
Italy says the ship was in international waters and therefore the marines who shot and killed two Indian fishermen from Kerala in February last year should be tried in Italy.
It admits that the marines were on a cargo ship but contends that they had been posted to prevent piracy under a recently passed law.
The Kerala state government and the Centre have said the shooting, mistaken or intentional, took place in its waters. In January this year, the Supreme Court ruled that Indian laws will apply to the marines. Later, interpreting the laws and upholding the validity of Unclos, the Court said the shooting happened outside Indian territorial waters of 12 nautical miles, which meant that the State of Kerala did not have jurisdiction to try the case but the Centre did have jurisdiction.
Earlier the Supreme Court had allowed the two marines, Massimiliano Latorre and Salvatore Girone, to return to Italy for Christmas vacations. They went for a second time to vote in the Italian general elections but did not return this time.
Their detention was a major issue in Italy, and Rome had tried hard to persuade India to return the marines. While public opinion here was generally to try the marines in India, some strategic analysts including M. B. Bhadrakumar had warned that India was heading for the diplomatic hot waters by doing so. New Delhi should accept the repeated entreaties from Italy including its Prime Minister and several visits by the Foreign Minister.
In Kerala, where the marines were being tried, the development triggered discussions in the legal circles. Commenting on the issue, Kaleeswaram Raj, advocate with the Kerala High Court, said the Supreme Court should have treated this as a case of individual crime involving foreign nationals and not as an international issue.
When the High Court allowed special leave for marines to visit family for Christmas, there was a clear contractual agreement at the Consulate level. This judicial and political foresight was missing when the Supreme Court allowed them to go for voting at February-end, he said.
With Italy deciding not to send the marines back, the judiciary has become helpless and now the issue can only be resolved politically, added Mr. Raj.
The new development would definitely set a wrong precedent in the judicial process, said A. Jayasankar, media critic and lawyer at the Kerala High Court. It was unfair that they were allowed to go home for Christmas.
The marines, attached to the six-member San Marco regiment team on board Italian-flagged oil tanker Enrica Lexie as part of the Italian Navy’s Vessel Protection Detachment, were arrested after it was confirmed that they shot two Indian fishermen to death.
