The International Tribunal for the Law of the Sea has said it will hear an appeal seeking to stop criminal proceedings against the two Italian marines — Massimiliano Latorre and Salvatore Girone — charged with shooting dead two Indian fishermen in February 2012.
Judge Vladimir Golitsyn of the Hamburg-based body has said the arbitration proceedings, set to begin on August 10, will also rule on Italy’s demand that Girone, now held in India, be allowed to return home pending his trial.
Government sources said India would be represented at the hearings in Hamburg by international law expert and former Ministry of External Affairs Additional Secretary Neeru Chadha, along with Additional Solicitor General P S Narasimha. India will also retain domain experts to argue the case, they said.
The two marines, part of the team escorting the Italian-flagged oil tanker Enrica Lexie, had opened fire on fishermen they mistook to be pirates with automatic weapons in 2012, leading to their arrest and prosecution.
Last year, Lattore was allowed to travel to Italy, after being diagnosed with a medical condition. Girone is currently living at the Italian mission in New Delhi, after he was denied permission to return home.
Italy’s appeal asks that “India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie incident, and from exercising any other form of jurisdiction over the Enrica Lexie incident”. If accepted, the plea would put the ongoing criminal trial of the men on hold.
Italy’s appeal also asks India to “take all measures necessary to ensure that restrictions on the liberty, security and movement of the marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings”.
The appeal was filed under Article 290 of the United Nations Convention of the Law of the Sea, which states that “pending the constitution of an arbitral tribunal, any party to the dispute may request the International Tribunal for the Law of the Sea to prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm”.
Last month, Italy had moved for a separate arbitration panel to be constituted to hear the case. The dates have not been announced for those proceedings, which will be heard at The Hague.
“In my opinion,” said international law expert V S Mani, “Italy is going to have a hard time explaining what harm will be done if its pleas are heard in the final arbitration. After all, it waited for a year since orders were passed by India’s Supreme Court to move for international arbitration. If it could wait a year, it can wait for the tribunal at The Hague to come to a decision”.
New Delhi says it is entitled to prosecute the marines, both because the shooting took place in waters where its rights apply, and because the fishing boat on which the victims were killed was registered in the country. Rome says the shooting took place in waters where India has limited rights, and the trial should therefore take place in an international court.
India is a signatory to the UN Convention on the Law of the Sea, and the tribunal’s orders are therefore binding.