Exactly five months ago, on February 15, 2012, two fishermen were killed when Marines aboard the Italian vessel Enrica Lexie fired on their boat. The Indian Coast Guard, after some specialised picture analysis, contacted the Italian vessel around 2100 hours and confirmed that it was involved in a firing incident involving a “pirate” vessel around 1630 hours.
Aware of the need to provide security against the menace of piracy, the International Maritime Organisation (IMO) permitted merchant vessels to carry armed personnel. But, recognising the risks involved, it set down strict guidelines for any lethal action to be taken. Essentially a ship’s master has to manoeuvre his vessel to avoid being intercepted. This will force the pirate vessel to manoeuvre to pursue and intercept, to enable boarding to “take” the vessel. Vessels engaged in legitimate activities could thus be identified. Firing is to be resorted to only when a suspect vessel is alongside and an attempt is made to board.
Available information indicates that the master of Enrica Lexie was not aware of any “attack,” indicating that no manoeuvres were carried out. The firing took place when the fishing boat St. Antony was in a range of 100 yards, a distance from which no boarding can possibly take place. It therefore seems that personnel on Enrica Lexie acted in disregard of IMO guidelines. Around 1630 hours, there would have been sufficient visibility, and an environment to resolve all ambiguities clearly existed. Enrica Lexie did not contact the Maritime Rescue Coordination Centre at any point.
Issues of jurisdiction
The incident threw up issues relating to jurisdiction, since it took place outside India’s territorial waters. Many views have been expressed. An article published in The Hindu (editorial page, “Who governs the high seas?” June 26, 2012) seemed to suggest that since the Italian government had enacted a law that authorised marine corps personnel to be deployed for vessel protection, the marines were doing their lawful duty, and since they were military personnel they should be tried by the Italian government.
I do not have expertise in legal matters, but some issues need to be looked at and resolved when this case is finally done.
The territorial limit of three miles came about from the “canon shot” rule. Since a canon shot could not fall beyond three miles, national security was sought to be secured by having the maritime border at three miles. By 1967, most nations adopted 12 miles as the extent of the territorial sea. The United Nations Convention on the Law of the Sea (UNCLOS) defined contiguous zones, exclusive economic zones (EEZ) and so on to allow orderly conduct of specified maritime activity and related control. The EEZ confers on the littoral state the right to exploit the area and realise its maritime economic potential. Thus, Indian fishermen engaged in fishing in the EEZ are performing a legally sanctioned activity and are entitled to protection by the state.
We need to examine the status of the marines and the legitimacy of their actions. Since the marines were deployed by the Italian government, their actions in ensuring the ship’s safety are to be deemed legitimate and they can claim privileges that naval personnel enjoy. Normally, armed forces personnel cannot be placed under the command of any other authority. This brings about a conflict in the responsibilities of the master and the marines. Since manoeuvre is the first action stipulated, the master has to initiate it. The determination that the target vessel is a pirate vessel is made if that vessel persistently manoeuvres to intercept, or launches skiffs that attempt to close in on the ship. Force is to be initiated only when the pirate vessel or skiff is alongside and people are attempting to board. It is only at this moment that marines can act. How was the determination made that St. Antony was a pirate vessel? Were there grounds to conclude that Enrica Lexie was under imminent threat that justified lethal action?
Armed forces personnel are to execute actions under “lawful command,” wherever they are. In peace-time, the principle of proportionate force is an obligatory ingredient of rules of engagement. International law requires even warships to provide humanitarian assistance unless it is tactically and materially imprudent to do so. Personnel on Enrica Lexie shot the fishermen, and showed no intention to either report it or act in accordance with international law.
Fishermen perform an important task. Life at sea is fraught with uncertainties and danger. They are entitled to all protection that they can get to lead their lives with dignity. It is the duty of the state, the Navy and the Coast Guard to ensure maritime security. While omnipresence and patrolling are impossible, we should take this opportunity to strengthen international legal processes so that sufficient deterrence is in place. This is in keeping with the principles enunciated in the preamble to UNCLOS.
(Vice-Admiral K.N. Sushil retired as Flag Officer Commanding-in-Chief of the Southern Naval Command on May 31, 2012.)
*The copy has been corrected for a factual error
