Legal delays caused by both India and Italy have kept the marines case on the burner. Now an international arbitration tribunal >has ruled that Sergeant Salvatore Girone can return to Italy until it decides a dispute raised by Italy about India’s jurisdiction to try him and his colleague for the killing of two Indian fishermen in February 2012. Clarity on the legal status of the case has been elusive. Initially it was a question of whether Kerala had the jurisdiction to try them. In January 2013, the Supreme Court held that it was the Centre that had the jurisdiction. The >National Investigation Agency took over the probe , but its insistence on invoking an anti-piracy law — the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 — led to further delay, as Italy objected to the implication that its marines were ‘pirates’, as well as to the death penalty that the Act attracted. India dithered for months on whether to drop the provisions of the law. It was after being admonished by the Supreme Court over the delay that it decided to drop the charges under it. In 2015, Italy approached the International Tribunal for the Law of the Sea (ITLOS) and sued for provisional measures pending reference of its dispute to an arbitral tribunal. One such measure froze all progress in the case: both parties were asked to suspend all pending court proceedings. Italy’s action delayed matters further as the Supreme Court had already allowed the marines to raise the issue of jurisdiction during the trial, as well as the applicability of Article 100 of the UN Convention on the Law of the Sea, which says all states shall cooperate in the repression of piracy.
The order allowing Sergeant Girone to return may seem like a legal setback to India’s attempts to bring the two marines to justice. (The other marine, Massimiliano Latorre, is already back in Italy.) However, the order of the Arbitral Tribunal in the Permanent Court of Arbitration in The Hague has enough safeguards to ensure that Sergeant Girone will return to face trial in India in the event that it decides India has the jurisdiction to try him. Italy has given a solemn assurance to this effect. The question before the tribunal is crucial: whether India breached international law by asserting jurisdiction over the Italian oil tanker, Enrica Lexie , or whether Italy alone has exclusive jurisdiction. An unfortunate impression has been created that India’s legal and judicial system is under-equipped to handle such cases. The process should have been sustainable and credible from the beginning, instead of being marked by doubt and uncertainty. Nationalist sentiment and the constraints of domestic politics played an excessive role in influencing the manner the case was dealt with. India and Italy should cooperate, without further delay or diplomatic wrangling, in the interests of justice. The case must be settled on purely legal grounds, and without the kind of political one-upmanship that has contributed to the delay over the past four years.