Enrica Lexie - Does Italy admit the jurisdiction of India ?

Enrica Lexie and the killings off the Kerala Coast – whether it was cold blooded murder by trigger happy Italian Marines or was it just the apprehensive action of Marines providing security against piracy threats ! – might be concluded after long fierce bitter legal battle. The vessel  was travelling from Singapore to Egypt with a crew of 34 including 19 Indians. It had on board  six Italian marines from the San Marco Regiment. The 243M LOA Aframax double hulled tanker built in 2008 at Shanghai Waigaogiao had Italy flag.  Fishing is common and fishing trawlers are sighted throughout Indian coasts, Arabic sea off Kerala is no exception.  An illfated fishing trawler named St. Antony had left Neendakara in Kerala with a crew of 11 to fish for tuna.  In what is reported to be an mistaken apprehension, the ship showered bullets on the fishing boat killing two fishermen Ajesh Pinki from Kulachal in Kanyakumari district in Tamil Nadu and Jalestine from Kollam in Kerala on February 15, 2012.  The perpetrators of the crime were the  Italian Guards identified as Latore Massimiliano and Salvatore Girone.  Lot of drama unfolded with diplomatic and political pressures trying to settle and make it a non-issue.   The marines are currently in jail in Kerala after making some hue and cry initially about the arrangement and food and finally understanding that they are incarcerated and not on any pleasure trip.

The naval guards were arrested on 19 February and charged with murder of fishermen; presented in police custody in the first 14 days and had been lodged in a special cell in the central prison since 5 March after the court remanded them to judicial custody.  The state government has resisted the diplomatic pressures from Italy to have them lodged in a guest house outside the prison and the case tried outside India under international maritime laws.  A special team headed by Kochi City Police Commissioner has been investigating the case and the fire arms allegedly used by the marines seized from the ship and sent to Government Forensic Laboratory for ballistic examination and analysis.

Now there are reports that Italy has accepted  Indian court’s jurisdiction in fishermen killings.  There are newspaper reports suggesting of Italy acknowledging the process in Indian Courts even as Indian Prime Minister Manmohan Singh and Italian counterpart, Mario Monto  met at  Nuclear Security Summit at Seoul, South Korea.    Earlier, Italian Foreign Minister Giulio Terzi had summoned country’s Ambassador Debabrata Saha to Rome to condemn the imprisonment of the two Italian marines accused of shooting dead two Indian fishermen. The Kerala high court  had observed that the alleged shooting of two Indian fishermen by Italian marines aboard Enrica Lexie was an act of terrorism.   The observation was in response to the petition seeking release of the Italian ship and to senior counsel’s contention that the captain and the crew have to be declared terrorists if Suppression of Unlawful Activities Act was to be invoked. 

The killing is established but the jurisdiction or the scene where it occurred would finalise the outcome.  Maritime laws are often complex as there could be different rights and obligations recognized in the various maritime zones. The regulation of activities at sea is dependent on what authority states have in any given maritime area or over any particular vessel or installation or structure located at sea. Territorial jurisdiction entitles a state to regulate persons and activities within its territory. Nationality jurisdiction allows states to regulate the activities of persons who have the nationality of that state. Universal jurisdiction refers to jurisdiction over particular activities that are considered so heinous (notably, piracy and war crimes) that all states may exercise jurisdiction over the perpetrators of those crimes irrespective of any other link. 

So some dust has been raised on whether Indian Courts can try the accused Italian Marines ?  Understand that  both India and Italy are parties to UN Convention on the Law of the Seas 1982 (UNCLOS).  The question on who owns the Sea and to what extent can throw very interesting answers – breadth of up to a limit not exceeding 12 nautical miles, measured from the baselines is determined as ‘territorial sea’ and the sovereignty of India extends to the territorial waters.  Beyond the territorial sea lies the contiguous zone, extending not beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured and after that lies the Exclusive Economic Zone which would extend to 200 nautical miles from the appropriate baseline.

Some legal experts opine that if the incident occurred beyond 12 nautical miles,  Indian courts can only have jurisdiction over offenses committed by a citizen of India, or a ship registered in India.  Sometime back in ‘The Hindu” newspaper,  there was this response of  Mr. K.R.A. Narasiah, a noted writer on Marine issues :  (reproduced below)

Quote **  The shooting of Indian fishermen by Italian marines aboard the Enrica Lexie brings to the fore the need to understand the Law of the Sea as understood by seafaring nations in general and India in particular. It is true that Article 97 of the United Nations Conference on the Law of the Sea (UNCLOS), as quoted by the Italian authorities, states that “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag state”. In this case the flag state is Italy. But the Article quoted is out of context, as it deals with ‘Penal Jurisdiction in Matters of Collision or any other incident of Navigation'. Here neither collision nor navigational aspect is indicated.

On the contrary, in Annexure III of UNCLOS, under the heading of Convention of High Seas, 1958, Article 2 stipulates certain freedoms that are recognised by the general principles of international law, wherein freedom of fishing is a part.  To combat piracy, a modern threat to shipping, the International Maritime Organization (IMO) adopted a resolution in 1986 on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, then known as the Rome Convention. This was the immediate outcome of the Achille Lauro case, in which a passenger ship with Italian crew was hijacked by Palestinians in October 1985. The U.N. then requested the IMO to address the problem. The action required to be taken was against persons committing unlawful acts against ships.

In the instant case, even this does not apply as there was no unlawful act committed against the ship by the fishermen. The action by the ship's crew was on suspicion that the fishermen could be pirates. Therefore, this case definitely does not come under any of the provisions of UNCLOS or any other convention connected with international piracy. Killing someone is a crime; the accused has to face charges. But how and where must be decided by the authorities keeping in view diplomatic conditions.** Unquote

Whether the statement attributed to Italian PM is an admission after studying the various facts of the incident is not immediately known.

With regards – S. Sampathkumar.