A legal merry-go-round

The issue of allowing the judicial process in India to continue in the Italian marines case becomes all the more crucial since Italy has participated in the legal process here. That it has now sought to use a UN-mandated court to stall the process altogether is unfortunate

August 29, 2015 12:25 am | Updated August 27, 2016 11:56 pm IST

A video game has recently gone viral on social media in Italy, according to Italian news reports. Called “Marò Slug”, it has two Italian naval officers who have to kill scores of semi-dressed Indian warriors jumping like monkeys from the treetops, and then escape from the country. The background score is the Italian national anthem and the visual background has a ship or a submarine called “Ridateci” or Italian for “Give us back”.

The game is clearly a puerile product of the popular frustration with the Italian government’s bungling of the case involving the real-life Italian marines, Massimiliano Latorre and Salvatore Girone, held in India, in February 2012, for the alleged murder of two fishermen, Jelestine and Ajeesh Pinku who had left for fishing in a mechanised boat, St. Antony , from Neendakara in Kerala. They were shot dead in the seas off the coast of Kerala allegedly by the two marines who thought the fishermen were pirates. The ship from which the fishermen were fired upon was identified as the Italian oil tanker, Enrica Lexie , which was later detained and brought to Kochi. The vessel was flying an Italian flag in international waters, and was sailing from Singapore to Egypt when the incident occurred.

Unfortunately for the video game’s developers, the Italian government’s latest move, to approach the International Tribunal for the Law of the Sea, which is the 21-member U.N.-mandated court in Hamburg, Germany, for their interim release, has also yielded no significant result. At the same time, the curious order passed by the Tribunal has meant that Italy looks like a tricksy forum shopper, India, a bureaucratic and judicial nightmare, and the Tribunal itself less of a judicial forum and more a mediator attempting to facilitate a mutually face-saving, albeit unworkable, compromise.

Exceeding its remit The Tribunal, while staying all proceedings in the case both in India and Italy till the issue of jurisdiction is settled according to international law, has refused to interfere with the status of the marines themselves. This means that Sergeant Latorre continues to be in Italy for medical treatment and Sergeant Girone remains ensconced in the Italian Ambassador’s residence in New Delhi.

This is a curious order for three reasons. First, for the Tribunal to award interim measures, it must be shown that it would have jurisdiction over the main dispute, that there would be irreversible prejudice caused if such measures were not awarded and that there is an urgency which requires an immediate award of such measures. While applying these tests, the Tribunal has given something to both parties at the cost of logical consistency. If irreversible prejudice would be caused by the continuance of criminal proceedings in India, then surely the marines who were standing trial would be prejudiced too and vice-versa. In fact, both these conclusions were arrived at by several concurring and dissenting judges of the Tribunal itself. If adopting such a halfway house solution is an attempt by the Tribunal to mediate a solution, it is most certainly well intentioned. However, given the fractious nature of the diplomatic relationship between India and Italy, as evidenced by their communications in this matter, it is unlikely to succeed.

Second, as an international dispute resolution forum, the Tribunal is duty-bound to ensure the exhaustion of domestic remedies before taking up a matter. Arguably, the question of exhaustion of remedies in India becomes a conundrum when it is India’s very jurisdiction that Italy is contesting. While this might be so, this is a matter that needed extensive discussion and reasoning of a kind that is entirely absent from the Tribunal’s order. At an interim stage, to be satisfied that it would have prima facie jurisdiction without accounting for the relevance, and consequent exhaustion of local remedies, is legally flawed.

Such a lack of reasoning also has the potential to strain the already uneasy relationship between domestic and international law. Given the fact that sovereignty is national, the legitimacy of international law has always been a contested question. Without entering into the fundamental debate of the legitimacy of international law, it can safely be stated that a key plinth of its acceptance by nation-states rests on it being respectful of domestic law and remedies before being pressed into operation. A summary dismissal of India’s local remedies exhaustion argument by the Tribunal calls such respect into question.

A forum shopper The issue of allowing the judicial process in India to continue becomes all the more crucial since Italy has, for three years, participated in the process, attended hearings and accepted (or appealed) the decisions that courts in India have handed down. Moreover, it has constantly sought appellate recourse to the Supreme Court, which can hardly be said to be actions of a country that contests jurisdiction. It is only after more than three years since the incident, when an ultimate remedy from the Indian courts seems an overly time-consuming possibility, that Italy has sought to use the Tribunal to stall the process altogether. This is far from a question of principle. On the contrary, it manifests a reprehensible practice of shopping for a forum that is most likely to deliver a favourable result.

Equally, the manner in which Italy has forum-shopped has been in exceedingly poor taste. It writes in its submissions: “At present, it is not known whether that hearing (on 26 August 2015) will take place as scheduled and will see the Indian Supreme Court decide the issue or whether, as has invariably been the case in the past with other hearings, the hearing date will be adjourned to some other as yet uncertain date in the future.” [The Supreme Court has since suspended all judicial proceedings against the marines after the Indian and the Italian governments jointly informed it on August 26, 2015, that an international tribunal had asked for status quo till it cleared the air on which country had the jurisdiction to try the two men. A three-judge Bench, led by Justice Anil R. Dave, posted the case for January 13, 2016.]

Again: “As regards Sergeant Girone, he is, for all intents and purposes, being treated as a hostage, to be kept in India notwithstanding India’s failure to issue criminal charges.”

It is imperative to note that Sergeant Girone is on bail pursuant to an order of the Supreme Court. Even if Italy were to make the claim of recalcitrance against the Government of India, to suggest, as it has done, that the Supreme Court is deliberately slow, tardy and implicitly in cahoots with the government deserves strong condemnation. Further, this is not the first time Italy has sought to cock a snook at the Supreme Court. On an earlier occasion too, contrary to the affidavit of its Ambassador in India, the Italian Foreign Minister had declared that the marines would not return to India. This was blatantly in the face of an order from the Supreme Court of India. It appears that the excessive generosity of the Supreme Court, time and again, has been interpreted as a sign of weakness. Such behaviour is entirely unbecoming of a sovereign nation.

A faltering justice system The generosity of Indian courts is in stark contrast to the fitness of its criminal justice system. Responsibility for the faltering criminal process must be shared by both the judiciary and the government. First, in a poorly reasoned order, the Supreme Court held that while India had putative jurisdiction to try the marines, the same could not be done by courts in Kerala. As India does not have distinct federal criminal courts, as a consequence of the court’s order, a special court had to be created or designated for this purpose. The government was slow in designating such a court. The National Investigation Agency, which was investigating the incident, took five months to complete a preliminary investigation. The government was subsequently slow in granting sanction for prosecution of the marines. None of these processes were helped by Italy constantly appealing every order to the Supreme Court, each of which took considerable time to come up for hearing.

Consequently, it is an uncontested fact, and one that has weighed heavily with the Tribunal, that after more than three years of the incident, the marines have not been brought to trial. It is this inordinate delay that has allowed the initiative that India possessed in bringing the marines to book in India to slip. If the strategic losses caused by, and international rebuke for, the delays in the criminal justice system are not adequate reason to reform it, one wonders what might be.

Given that the Tribunal is only deciding on jurisdiction rather than criminality, it does not appear that the case is about to end anytime soon. Its interim decision too has done little to move it along, equivocating on key legal questions. Stripped of its legal accoutrements, this case is about two innocent Indian fishermen who lost their lives and two Italian naval officers who, justifiably or unjustifiably, killed them. The endless complexities of the law have meant that justice has proved hard to come by both for the families of the victims and the accused. If the courts, the governments and the law continue to muddle along as they have done this far, “Marò Slug” might not simply remain a racist video game. It might, in the popular imagination, become a preferable mode of justice delivery compared to the slow and onerous rule of law.

(Arghya Sengupta is Research Director of the Vidhi Centre for Legal Policy, a New Delhi-based think tank.)

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