On Wednesday, the Supreme Court allowed Italian marine Massimiliano Latorre, accused of killing two Indian fishermen in 2012, to stay in his country until April 30 for medical treatment. The court had earlier asked Latorre to return by January 15. The court asked the government to provide, by April 13, the status of proceedings at the International Tribunal for the Law of the Sea (ITLOS), the UN mandated international judicial body that is seized of the matter.
Senior advocate Soli Sorabjee, appearing for the marines, described as “stray” the reports from Italy this week quoting a senator as saying Latorre would not return to India. Latorre has been in Italy since September 12, 2014, when the court first allowed him to return home after he suffered a brain stroke. Girone has been living at the Italian embassy in New Delhi.
What are the two sides of this story?
India has accused Chief Master Sergeant Latorre and Sergeant Girone — marines on board the MV Enrica Lexie, an Italian flagged oil tanker sailing from Sri Lanka towards Djibouti — of shooting dead two Indian fishermen at sea, approximately 20.5 nautical miles off Kerala in India’s Exclusive Economic Zone (EEZ). The incident happened on February 15, 2012. The unarmed victims aboard the fishing vessel St Antony were killed without warning, one shot through the head, the other in the stomach, with automatic weapons, India has said.
Italy has, however, 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.\
What is the core legal dispute?
It stems from India exercising criminal jurisdiction over the two Italians by filing a murder case and arresting them. 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.
What did India do after the incident?
The authorities directed the MV Enrica Lexie to proceed to Kochi, Kerala Police lodged an FIR and arrested the marines for murder, and they were then remanded in judicial custody. The marines went to the High Court pleading their arrest, detention and all criminal proceedings were without jurisdiction, and asking that they be released. They also approached the Supreme Court, asking that all proceedings against them be declared violative of the principle of sovereign immunity and hence, illegal. The marines asked the court to hand them over to Italian authorities; a tribunal in Rome had, by then, begun criminal proceedings against them under Italian law.
Meanwhile, Kerala Police also charged the marines under Section 3 of the Suppression of Unlawful Acts against the Safety of Maritime Navigation and Fixed Platforms on the Continental Shelf Act, 2002 (SUA), which attracts the death penalty.
Kerala High Court subsequently dismissed the marines’ petition. It 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 marines went in appeal and, on January 18, 2013, the Supreme Court held that the Centre, and not Kerala, had jurisdiction beyond territorial waters, and Kerala Police and the trial court did not have jurisdiction in the case. It directed the setting up of a special court in Delhi to try the case, and allowed the marines to challenge India’s jurisdiction over the matter in that court.
The special court was set up, and hearings were to begin on July 31, 2013, but the government dropped the charge under SUA and, in September 2013, the Supreme Court allowed Latorre to go to Italy for treatment for four months. His leave was then extended repeatedly by the Supreme Court.
What was the diplomatic fallout?
On February 22, 2013, the Supreme Court allowed Latorre and Girone to visit Italy to vote in the February 24-25 elections. On March 11, however, Italy refused to send them back, triggering a crisis. The court had allowed the marines to leave against a guarantee from Italian ambassador Daniele Mancini, and it now restrained him from leaving India without its consent. Mancini claimed immunity under the Vienna Convention, but the court held that a person who had appeared as a petitioner could not claim immunity.
On March 21, Italy agreed to send the marines back. On February 18, 2014, it complained about “unacceptable delay by the Indian Supreme Court” and the “ambiguous and unreliable” behaviour by India, and called Mancini to Rome for discussions.
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 ITLOS 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.
What happens next?
In November 2015, a five-member arbitral tribunal was constituted for the arbitration between the two countries. The verdict of this tribunal will be binding on the two sides. Italy appointed Professor Francesco Francioni on June 26 as one of the five arbitrators; India appointed Judge Patibandla Chandrasekhara Rao on July 24.
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