The long quest for justice for the two Kerala fishermen shot dead by Italian marines from the Enrica Lexie about 20.5 nautical miles off India’s coast in February 2012 has ended in disappointment . An international arbitration court has ruled that India does not have jurisdiction to try the marines, who, it held, were entitled to immunity as they were acting on behalf of a state. The Permanent Court of Arbitration (PCA) in The Hague admitted that both India and Italy had concurrent jurisdiction in the matter but concluded that the marines’ immunity precluded India’s jurisdiction. In India’s favour, the PCA found that the Italian vessel had violated the right and freedom of navigation of the Indian fishing vessel under UNCLOS, and that the action, which caused loss of lives, property and harm, merited compensation. It asked the parties to consult each other on the compensation due to India as a result. More significantly, the PCA rejected a key argument by Italy that India, by leading the Italian vessel into its territory and arresting the marines, violated its obligation to cooperate with measures to suppress piracy under Article 100 of UNCLOS. This may mean that the arbitration court did not view the incident as one related to piracy at all. The incident had caused national outrage as the public saw these as wanton killings, inasmuch as the circumstances indicated no attempt by the fishing vessel at piracy. The fishing vessel was within the country’s Contiguous Zone and it was quite clear that the offence warranted arrest and prosecution under domestic law.
With the piracy angle ruled out, a regular trial was in order. The Union government should have taken over the prosecution and ensured a quick trial. However, as legal tangles were being sorted out, and India was dealing with the diplomatic fallout, the marines managed to obtain orders to leave the country. The Supreme Court ruled that only the Centre, and not Kerala, can prosecute the marines. A bigger legal issue, which caused more delay, came later. The National Investigation Agency invoked the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002. This caused a diplomatic furore as it provides for the death penalty. The EU threatened to impose trade sanctions. Ultimately, it took time for these charges to be dropped. The PCA’s award, which is final and has been accepted by India, is a huge setback for the expectation that the two marines would face a criminal trial in India. In the end, Italy succeeded in taking the matter out of India’s hands. It should now make good on its commitment to have the marines tried under its domestic laws. The takeaway for India should be the lessons, in the legal and diplomatic domains, that can be drawn from the experience.
