The United Nations arbitration tribunal’s decision on the Italian marines case, announced on May 3, seeks to placate both India and Italy over a tragic incident that led to the death of two Indian fishermen off Kochi in February 2012.
The two Italian marines accused of shooting the fishermen have been suspended in a legal twilight zone, given the many complexities that envelop the incident, thereby resulting in a long festering bilateral dispute that has soured relations between New Delhi and Rome ever since.
In summary, the Italian position is that the two marines positioned on board a merchant tanker, the Enrica Lexie , had opened fire to thwart what they perceived as a pirate attack 20.5 nautical miles off Kochi. It is further argued that the death of the two Indian fishermen occurred in the course of the discharge of their operational duties, and hence functional immunity could be invoked as related to the military personnel of any nation. And that even if charges of death by accident were to be prosecuted against the marines, this would have to be done within the ambit of Italian law and jurisdiction as harmonised with the UN Law of the Sea [UN Convention on the Law of the Sea (UNCLOS)].
New Delhi, however, has steadfastly rejected this formulation and has invoked its sovereign right to prosecute the accused under the provisions of Indian law, thereby resulting in an impasse.
Given this basic divergence over which jurisdiction would be applicable in prosecuting the marines, an anomalous situation developed, wherein the marines were moved from detention in Kerala to the premises of the Italian Embassy in Delhi — and the already extended legal stasis continued. Over the years there were further unprecedented interim provisions that allowed the marines to return to Italy — in one instance for Christmas and later to participate in an Italian general election.
An EU context
Within India, the case moved from the Kerala High Court to the Supreme Court with differing views among experts about the overlap between domestic law, the interpretation of sovereignty in territorial waters and contiguous zones as derived from the UNCLOS and how Centre-State jurisdiction was to be determined, given the distinctive nature of the entire incident which had a bearing on the prevailing global anti-piracy effort.
India ‘asserted’ its sovereignty and sought to claim its sole jurisdiction in prosecuting the marines in a special court, but considerable time had elapsed, and by December 2014, the case acquired an EU context. A former Italian Foreign Minister Federica Mogherini had been appointed High Representative of the EU for Foreign Affairs and referring to the long pendency of the case (about three years, while the norm in India is decades!), she warned that “the issue has the potential to impact the overall European Union-India relations.”
Consequently, an India-EU summit meeting with Prime Minister Narendra Modi in early 2015 could not be scheduled, and it was evident that Italy would take recourse to international mediation, despite India’s strong reservations.
In June 2015 Italy approached the International Tribunal for the Law of the Sea (ITLOS) in Hamburg. In August 2015 ITLOS ordered that: “Italy and India shall both suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the Annex VII arbitral tribunal or might jeopardise or prejudice the carrying out of any decision which the arbitral tribunal may render.” In short, ITLOS rejected the Italian request that India return the marines provisionally – though one of them is currently in Italy on medical grounds, a temporary measure granted by the Indian Supreme Court.
Subsequent to the ITLOS ruling, both parties agreed that the dispute would be resolved under the UNCLOS tribunal, while the ground situation was that while one marine was in Italy (on medical grounds), the other (Salvatore Girone) was in India in the local Italian Embassy.
Rome once again approached the ad-hoc tribunal to “take such measures as are necessary to relax the bail conditions on Sergeant Girone in order to enable him to return to Italy, under the responsibility of the Italian authorities, pending the final determination of the Annex VII Tribunal.”
The tribunal order (May 3) has accepted the Italian plea and allowed the marine in India to return, but the wording is significant. It notes: “Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.”
The Indian government has interpreted this decision as affirming the authority of the Supreme Court of India in the matter, even as Rome sought to rationalise the tribunal’s order as a vindication of Italy’s position. This provisional order only addresses what has been termed by Rome as the “humanitarian” dimension of an intractable bilateral dispute between the two countries – and in many ways the bitterly contested legal haul has just begun.
Just the beginning
The first step is for both parties to approach the Indian Supreme Court for a relaxation of the bail for Sergeant Girone. What will be critical is Rome’s unambiguous acceptance of the conditions attached, including the fact that even while being in Italy the accused would be “under the authority of the Supreme Court of India.”
It is expected that over the next year or maybe two, the Italian marines case will be heard in an international arbitral forum and decided on ‘merits’ to determine whose jurisdiction will finally prevail. In the event that Indian jurisdiction is upheld, the criminal proceedings will then begin. In short, the stage has only been set for the first of many legal steps to be taken, and it has taken four years plus to arrive at this point.
But more than the long-drawn-out legal maze, it is the Indian domestic political context and related discourse that diminishes the world’s largest democracy. Even as the government made a statement in Parliament about the provisional Hague order, reiterating the affirmation of the Supreme Court of India, the opposition lost no time in casting aspersions.
Accusing the NDA government of entering into a deal with Italy over the marines case, so as to corner the Congress leadership (read Sonia Gandhi) on the VVIP chopper case, the low point was the reference to a Modi tweet of March 2014 which read: “Italian marines mercilessly killed our fishermen. If Madam is so ‘patriotic’ can she tell us in which jail are the marines lodged in?”
Given that rank political opportunism and stoking ‘nationalist’ sentiment has become the higher Delhi priority — the objective pursuit of justice and a restoration of normalcy in India-Italy bilateral relations will remain elusive over the short term.
C. Uday Bhaskar is Director, Society for Policy Studies, New Delhi.