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Sunday, May 09, 2021

Explained: What is the Italian Marines case?

On February 15, 2012, two Indian fishermen returning from a fishing expedition near Lakshadweep islands onboard fishing vessel St Antony were gunned down by two Italian marines on board oil tanker Enrica Lexie.

By: Explained Desk | New Delhi |
Updated: April 10, 2021 8:19:31 am
On February 15, 2012, two Indian fishermen returning from a fishing expedition near Lakshadweep islands onboard fishing vessel St Antony were gunned down by two Italian marines on board oil tanker Enrica Lexie. (File photo)

The Supreme Court on Friday said that the case against two Italian marines who gunned down two Indian fishermen off the coast of Kerala in February, 2012, will be closed only after Republic of Italy deposits with it Rs 10 crore as compensation to victims. The compensation is a mutually agreed amount between India and Italy in terms of the award by an international tribunal.

The apex court has said that Rs 4 crore each out of the compensation will go to the next of kin of the two fishermen while Rs 2 crore will be given to the owner of the fishing vessel in which they were travelling.

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What is the Italian Marines case?

On February 15, 2012, two Indian fishermen returning from a fishing expedition near Lakshadweep islands onboard fishing vessel St Antony were gunned down by two Italian marines on board oil tanker Enrica Lexie. The incident occurred around 20 nautical miles off the coast of Kerala. Shortly after the incident, the Indian Coast Guard intercepted Enrica Lexie and detained the two Italian marines— Salvatore Girone and Massimiliano Latorre.

Following this, the Kerala Police registered an FIR against them for murder and arrested them. In April, 2013, the case was transferred to the National Investigation Agency (NIA) which invoked the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA). The SUA Convention was passed in 1988 with the goal of suppressing international terrorism.

Meanwhile, in early 2013, the marines were allowed to go back to Italy to vote. Once the marines landed in Italy, Italian authorities notified India they would not return the marines unless there was a guarantee they would not face the death penalty. After tense diplomatic discussions, the two marines were returned, without any of the guarantees requested by Italy.

What was the dispute over the case?

India argued it had jurisdiction over the case as the two fishermen were killed without warning just 20.5 nautical miles from Indian coast making the area part of India’s Exclusive Economic Zone (EEZ).

The Kerala High Court had earlier observed that through a Government of India notification in 1981, the IPC had been extended to the EEZ, and Kerala’s territorial jurisdiction was not, therefore, limited to 12 nautical miles. The court also said that under SUA, Kerala had jurisdiction up to 200 nautical miles from the coast. The Supreme Court later said that the Centre had jurisdiction over the case and not Kerala.

Italy claimed that as the Indian vessel drew close, the marines assessed that it “was on a collision course with the MV Enrica Lexie and that this modus operandi was consistent with a pirate attack”. It claimed that the fishing vessel continued to head towards the tanker despite sustained visual and auditory warnings, and the firing of warning shots into the water.

Italy claims the marines had been hired to protect the tanker from pirates and they were only doing their job. Italy argues the marines enjoyed sovereign functional immunity in India and Italy alone had jurisdiction to deal with them. According to Italy, it was an “incident of navigation concerning a ship on the high seas”, outside the territorial waters of India. It has cited Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS): “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings.

Italy criticised the prosecution pursuant to the SUA Convention as equating the incident to an act of terrorism. On March 7, 2014, India dropped the SUA charges against the marines. On February 7, 2014, the charges were downgraded from murder to violence meaning the marines would not face the death penalty if convicted.

Later, Latorre and Girone returned from India to Italy on September 13, 2014 and May 28, 2016, respectively.

How did the dispute move to an international tribunal?

On June 26, 2015, Italy instituted proceedings against India before an arbitral tribunal to be constituted under Annex VII of UNCLOS. On July 21, it submitted a request before the Hamburg-based International Tribunal for the Law of the Sea (ITLOS), an arbitral tribunal under the International Court of Justice, under Article 290, Paragraph 5 of UNCLOS, seeking “provisional measures” directing India to not take any judicial or administrative step against the marines, and to allow Girone to leave and let both men stay in Italy until the end of the Tribunal’s proceedings.

India asked ITLOS to reject the submission, saying, “The story told by Italy is as short and straightforward as it is misleading… (It) omits several crucial aspects which are the crux of the issue… (and) seriously distorts reality.” The delays that Italy had complained of were “due to Italy’s own delaying tactic”, India said. It added that Italy had, “in reality, not conducted any kind of serious investigation on the facts, thus showing how little they trust in their own thesis of their right — let alone exclusive right — to exercise criminal jurisdiction over the two persons accused of murders”.

What did ITLOS decide?

On August 24, 2015, ITLOS directed that both countries “shall suspend all court proceedings” in the matter, and asked them not to start new proceedings that might aggravate the dispute or jeopardise proceedings of the arbitral tribunal. It said it did not consider the Italian submissions to be “appropriate” because “the Tribunal may prescribe measures different in whole or in part from those requested”.

The Supreme Court stayed all proceedings against the two Italian marines. The matter finally reached the Permanent Court of Arbitration in July, 2019.

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What did it say?

In May, 2020, the court ordered that the marines will not be tried in India, and will face criminal proceedings in Italy. The court, based in The Hague, further said New Delhi was entitled to compensation and asked India and Italy to consult on the amount of compensation due.

In a close 3:2 vote, the tribunal ruled that the Italian marines enjoyed diplomatic immunity as Italian state officials under the United Nations Convention on the Law of Sea. Taking note of the “commitment expressed by Italy” to resume its criminal investigation into the incident, the tribunal said India must cease to exercise its jurisdiction.

How did India react?

In July 2020, the government told the Supreme Court that it had decided to accept the tribunal’s May 21, 2020 ruling in the case and sought disposal of the proceedings pending before the court in view of the tribunal’s ruling.

The court, however, made it clear that it would not pass any order without hearing the victims’ families, who, it said, should be given adequate compensation.

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