Tags
contiguous zone, Daniele Mancini, EEZ, Giulio Terzi, India, Italian marines, Italy, Kerala, marines, Massimiliano Latorre, MV Enrica Lexie, piracy, Salvatore Girone, SUA, Supreme Court of India, territorial waters, UNCLOS, USNS Rappahannock
The perfidy of the Italian government in the case of two of its marines detained in India for the charge of murder has stunned most observers. Under the pretext of exercising their suffrage, the Supreme Court of India allowed Massimiliano Latorre and Salvatore Girone to return to Italy for a period of four weeks under the guarantee of the Italian Ambassador to India, Daniele Mancini. However, after the sailors’ safe arrival home, Italian foreign minister Giulio Terzi announced on March 11 that the sailors will in fact not be returning to India to stand trial.
There are many questions involving this matter. First, why did the SCI allow the prisoners, charged with murder, to go home to vote? Why did the SCI allow them home for Christmas in 2012? This is not a privilege extended to all prisoners in India. Second, why did the SCI allow them to go home without even posting a bond? When the SCI allowed them home for Christmas, a ₹6 crore bail bond had to be paid.
Not surprisingly, there is much chest thumping in India at being hoodwinked by Rome. As Thucydides said, “Men’s indignation is more excited by legal wrong than by violent wrong; the first looks like being cheated by an equal, the second like being compelled by a superior.” In the ill will generated by the Italian government’s duplicity through Mancini, Indian rhetoric on the death of the two Keralite fishermen has become noticeably and unnecessarily shriller.
India’s handling of the legal process in the death of the two Keralite fishermen on February 15, 2012, has not been, contrary to its own belief, entirely kosher. The fishermen died when the Italian marines, serving as guards for the commercial liner MV Enrica Lexie, opened fire on the fishing vessel, St. Anthony under the impression that the Enrica Lexie was being assaulted by pirates. While the Indian Coast Guard submitted in its February 28 report to the Kerala High Court that the fishing vessel was 100 metres away from the Enrica Lexie and no danger to it, another vessel, alleged to be the Greek ship Olympic Flair, came under attack from 20 robbers on the same day. This seems to indicate that there was probable cause for a higher level of alert and caution on the part of the Enrica Lexie.
The Coast Guard’s report also mentioned that the Italian ship was 22.5 nautical miles off the cast of Kerala. This is beyond the 12-mile limit of national territorial waters within which India has exclusive jurisdiction. It is also within the 24-mile contiguous zone and the 200-mile Economic Exclusion Zone beyond which international waters indisputably start and the marines would have come under the jurisdiction of the country whose flag the vessel was flying. The dispute is over which country has jurisdiction and the degree of rights over the 188 miles in between the EEZ and territorial waters.
Piracy did not have any legal status in the Indian Penal Code until 2012. This has caused much confusion over how to prosecute Somali pirates captured and held by India in its operations in the Arabian Sea. The Piracy Bill was designed to address this lacuna in Indian law, and it extends Indian jurisdiction over the entire extent of the EEZ. The bill does so on the basis of India’s interpretation of the United Nations Convention on the Law of the Sea, extending security as well as economic rights to the limits of the EEZ. Italy disputes India’s interpretation of extending security rights over the EEZ, and claims that UNCLOS provides state actors immunity from prosecution. Section 1 of the Indian Penal Code does not, Rome argues, cover the EEZ – which is why, for example, the Customs Tariff Act was specifically extended to cover the EEZ in 2002. However, India’s interpretation of UNCLOS – which some may argue was never the framers’ intent – allows it to bring into play Section 188 of the Code of Criminal Procedure, which states that anyone committing a crime on Indian territory can be prosecuted in India. New Delhi also argues that Article 6 of the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation Convention gives it jurisdiction over the Italian sailors. Whatever statutes we can quote, the fact remains that this is as yet sparsely charted territory in international law. Disputes over the interpretation of UNCLOS involve several countries, most notably China and her neighbours.
Given the ambiguity of the law, Italy’s proposal to India has been that the issue be resolved through diplomatic means – it would be no justice to hold the accused until the law is written and then try them since the law would not only be post facto but the process could also take years. India has steadfastly refused the Italian proposal, and on January 18, the SCI announced that India would have exclusive jurisdiction over the case. Considering that Italy’s actions had thus far been reassuring – the return of the Enrica Lexie to Kochi port, the generous settlement of the civil case with the families of the victims, the return of the sailors after Christmas – India might have been better served in the short term by accepting Italy’s proposal for a diplomatic solution and inviting interested states for an international conference on UNCLOS to further jurisprudence in this area.
Indian editorials have screamed that the Italian marines must be tried in India. Some have even suggested that Italy’s demand for jurisdiction over its sailors is an indication of its distrust of the Indian legal system, a sentiment stemming from racism. Yet others have demanded that India assert its national interest and seek justice for its slain citizens. Others have even put forward a conspiracy theory based on Sonia Gandhi’s Italian origins. This uncritical stance is deeply disappointing as it does nothing to further the discussion. First, it is difficult to understand why the marines must be tried in India – let the legal experts haggle over the details of the umpteen national and international laws, treaties, and customs and decide for future cases. In the interests of swift justice and avoiding political acrimony, a diplomatic solution seems more pragmatic. Second, it amuses me to no end how postcolonials bring up the bête noire of modern civilised society – racism – whenever they are dealing with a white country, regardless of facts and certainly without proof. In this case, it is claimed that racism is what keeps Italy from accepting Indian jurisdiction over their soldiers, that they do not think a coloured court can dispense with justice as well as a white court can. One need only glance at the abhorrent state of the judiciary in India – people imprisoned for years without trial, corruption, legislative or executive influence – to know that one need not be a racist to accept the Italian observation.
Third, the defence of national interest is indeed a strange cry when Indian fishermen are regularly killed by the Sri Lankan navy – 85 in the last ten years, according to the Indian government. Conveniently forgotten is also the USNS Rappahannock incident in July 2012 which left one Indian fisherman dead and three injured. Fourth, there is no doubt that the Indian National Congress and its allies have functioned dubiously; there are plenty of whispered allegations about the party leadership. Yet this is only gossip-mongering or blowing off steam at the national level and none of it constitutes proof; it is unworthy of our time.
India’s case against Italy is that the official government in Rome lied to New Delhi through its Ambassador. Italy failed to perform its duties and behave with honour. The case of the two marines is effectively in abeyance as long as Italy holds the marines and disputes exclusive Indian jurisdiction over the case.
What are India’s options at this point? New Delhi will have to declare Mancini persona non grata for lying while serving in an official capacity; it can scale back government business with Italy for a few years but this will hurt India more than Italy since the balance of trade is in the former’s favour; India can exert pressure on Italy to return the marines through its European friends but it is unlikely to bear fruit; New Delhi can downgrade diplomatic relations with Rome but a reduction of consulates will only hurt tourism and business. All the while, India should simultaneously also seek a diplomatic resolution to the case, particularly since a legal solution seems increasingly unlikely. New Delhi would have been better off accepting Italy’s initial offer of a diplomatic solution; now, India’s message should be that it is and was always willing to resolve the issue in the fairest possible manner. Moderation may be a virtue only in those deemed to have an alternative, but India must now make virtue out of necessity. Petulance comes easily; statesmanship is harder.
‡: I appeared on NDTV’s The Social Network on this topic
This post appeared on Tehelka on March 13, 2013.
My friend Jaideep Parbhu, has written a very well researched and argued post on the Italian Marines case – “The Italian Job” . As is wont between friends, picking up some arguments with him. Here goes:
First, the decision to send the Italian Marines for Christmas was NOT taken by the SC, as Jaideep suggests in his post, but by the Kerala HC. It is only in the second instance, when they were sent for voting, was the SC involved. The difference is vital. As Jaideep himself points out, while sending Marines for Christmas, the court ( Kerala HC) demanded and ensured a bond of Rs. 6 crores. The SC, which is the highest court in the land, settled for no surety when sending the Marines back a second time for voting. The question is why?
Second, between the Marines going for Christmas and returning and Marines going back again for voting, one vital, important and perhaps defining event took place. When the Marines went to Italy for Christmas and returned, their appeal in SC regarding who has jurisdiction to try them – India or Italy – was still pending. That matter was settled by SC unambiguously on 18th Jan 2013 – that India has jurisdiction. That is why when they returned the first time around, they had and incentive and hope that the SC might rule in their favor and the matter would end. When they went back a second time, that hope was gone. Thus the perfidy.
Third, Jaideep seems to suggest all the while that India might have been better off dealing with this diplomatically from the start. Actually India did try this. When an equivalent of “blood money” was offered to settle the deal outside courts, GOI facilitated it. However, once a case is in court, as all murder cases must go, since it is not a private case, only the courts have the final view. So the blood money settlement deal offer went to SC which struck this down, emphasizing that there is no concept of blood money in IPC. The Supreme Court tied down GOI’s hands for any diplomatic deal. and Unless the GOI itself were to disregard the SC, how could it have settled the mater diplomatically?
Fourth, Jaideep seems to argue that going forward, India’s legal options may be limited. As has been argued by many, Italy through its ambassador, became a litigant in the SC. Someone who claims to enjoy diplomatic immunity from Indian laws, does not then become a litigant under the same law. Because if they do, perforce they are conceding that the law applies to them. Consider what Italy did – it appealed in SC, hoping to get a judgement in favor. Had it gone in favor, they would have argued that matter settled as even SC does not buy GOI stance. But Italy lost. Their argument now is that irrespective, let’s settle it diplomatically. That is like having the cake and eating it too. To now argue, that India should help settle is diplomatically, is actually asking India to help Italy have its cake and eat it too.
Fifth, When Italian ambassador approached the SC a second time in February 2013, to let the marines go for voting, implicit in the appeal was the acceptance of 18th Jan 2013 order that India has jurisdiction. So the talk of India not having jurisdiction , or that now India itself should take the matter to international arbitration post SC order, as some others have argued, is beyond pale. Second, the Italian ambassador submitted a signed affidavit in SC. That one only does, when one submits to the jurisdiction of the court and appeals to the court based on the laws that govern the court. Common sense would tell, a sense to which Arun Jaitley, Leader of Opposition in Rajya Sabha and Harish Salve, former counsel of Italy agree, that once having submitted to jurisdiction of a court, one cannot revert later that the court has no jurisdiction. Therefore, diplomatic immunity, as is being claimed now, would also seem to not hold and the Italian ambassador can be clearly held in contempt and sent to jail.
Sixth, the author laments that fact that Sonia Gandhi’s name has been brought into the case rather unnecessarily. Consider the facts of this case first, and some other instances :
A) Kerala HC, which let the marines go first time, imposed much stricter clauses before letting the marines go. This when they still had incentive to come back. When matter came to SC, and when GOI was now arguing (instead of Kerala state earlier), and when marines had no incentive to come back, no such conditions were either demanded by GOI counsel nor imposed. The question is, why?
B) The SC in its 18th Jan order asked for setting up of a special court, in consultation with the SC, to try the marines. How much time should it take to do the same? GOI itself did it very expeditiously in case of the unfortunate Delhi gang rape case. In this case, when the matter went to SC again on 23 rd Feb, the GOI, a month later, had still not moved on setting up the court. The Supreme Court was aghast at the delay and asked in anguish: ‘”If the special court had been expeditiously set up, the trial could have been over by now. Why is the Centre dragging its feet over the matter? Nobody has initiated any consultation process till now”. The Supreme Court further asked the GOI counsel, P.P. Malhotra, if they intended to initiate the consultation? To even this, GOI counsel had no answers ! The GOI counsel, who presents in court the argument which his client, in this case the GOI asks him to, had no idea whether GOI intended to set up the court at all. The question then is – why would the GOI drag its feet on a SC order? Under what compulsions? What was the motive?
C) When the Bofors scandal broke, it was argued that no connection should be made to a family even though Quattrocchi has been named. It would be “xenophobic” to impute such a connection, argued some. However, events slowly offered a peak into the true nature of what was the actual deal. When then Indian foreign minister, in a Congress regime, intervened to let Quattrocchi walk free in 1993, there were protests in India. The foreign minister had to resign. However, it was still argued that there was no evil design in this. The next Congress regime on taxpayers money, sent its Law Minster to England to free Quattrocchi’s sealed back accounts. Again it was argued that no sinister motive in this. Do we beleive the protestations of innocence in Quattrocchi case ? If not, they why not?
D) The Augusta Westland scandal is is too well known to bear repetition. “The Family” has been named as the prime recipient of the kickbacks in the case. Who is referred to as “The Family”? When in 1987, the Bofors story broke, many found it implausible to believe that there could be a connection with Quattrocchi and a family. Hardly anyone doubts it now. Same pro forma arguments are being offered again that no connections between “The Family” and kickbacks in Helicopter deal. Does anyone beleive it in light of past experience?
As James Bond famously said, “Once is happenstance. Twice is coincidence. Three times, it’s enemy action.” Arun Jaitley agrees too. Who does not?
Thanks for a detailed and thoughtful reply. To clarify or disagree, as the case may be:
1. Indeed. That is the same question I asked. I’m not sure why the difference is vital, but it was certainly a lapse on the part of the SCI. I should add a question here – when the Italian Ambassador said that the marines were not able to vote in their present circumstances, did the SCI ask what those circumstances were?
2. It is not in dispute that the marines returned on January 4, 2013, and the SCI handed down its judgment two weeks later. The decision is certainly probable cause for the non-compliance of their bail the second time around.
3. This assertion is problematic on many counts. First, the Italian government did pay the families compensation of Rs. 1 crore each. Second, the issue is not whether the Kerala High Court or the SCI has a murder case going on; Italy’s dispute is that India has no jurisdiction, or at least, not exclusively. Until this is resolved, any Indian legal action towards processing this trial is useless and its authority not accepted.
4. The SCI record states, “petitioner No.3, the Ambassador of Italy to India…Daniele Mancini…representing the applicant No.3…” Clearly, this was not the submission of Daniele Mancini himself but his action in an official capacity. So Mancini is not the litigant but Italy is, and is represented by its ambassador, Mancini. Now here is another interesting bit – the media reported on March 26 that the Italians had accepted Indian jurisdiction over the case. However the Kerala High Court records indicate that even on May 29, the Italian team had questioned jurisdiction of India on Italians in the EEZ and had not, in fact, accepted Indian jurisdiction on their soldiers. I am not sure what to make of this – either the Court records are wrong, or the media needs journalists with better English skills!
5. The Italian Ambassador’s alleged waiver of immunity was mentioned at the beginning of Point #4. As to the approach of the Italian government, via its ambassador, before the SCI, such action cannot be seen as an acceptance of Indian jurisdiction over the dispute over UNCLOS and subsequently the conduct of the marines. It is an acceptance of the fact that the Italian marines are detained by India and the proper procedure to follow would be to petition the body in charge. Since the SCI held the matter, the Italian government approached the Court. Had permission rested in the hands of the Inspector at Chanakyapuri police station, the Italians would have approached him.
6.
The author does not “lament” the unsubstantiated accusations against Ms. Sonia Gandhi but merely questions the relevance, and indeed, connection to the dispute in interpretations of the UNCLOS…or for that matter, the non-return of the Italian marines to India after they had cast their votes. While many might take glee in reports that are, as of yet legally unsubstantiated, it does not inform the case in any manner. Assuming for a minute that the allegations are true, it only creates a new case regarding the matter of executive influence on the judiciary and does not affect the dispute over the marines and the understanding of India’s rights in its EEZ. To ascribe any emotion other than frustration to the author would be mischievous by Sri Mishra
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1. The initial part of the article is redundant because Italy has changed the game by its deception. The only points worth discussing is how to deal with Italy post deception.
2. The solution could never be via diplomatic means as this is a case or murder. Govt has role to play in this.
3. Citing Indian negligence over Indian fishermen killing is silly. Just because India has not acted on Indian fishermen death by Lankan navy does not give license to all and sundry to target practice on Indian fishing boats
4. How do we know Indian fishermen killed were really fishermen and not running arms and supplies to LTTE. The author has no proof on this to draw such a conclusion.
5. Let me put a counter point. Why cant Italy not simply agree to the court case and ask for lenient sentencing since this may have been an accident. They can always serve the sentence in Italy.
6. One thing is for sure the firing on the boat was not a knee jerk reaction and knowing a little about the chain of command in armed force I can say with confidence that the movement of the fishing boat was observed, studied and through a chain of validated commands the 2 marine were ordered to man and fire armour piercing bow mounted gun. So a pre-meditated murder can be argued. How can a small fishing boat be a threat especially with just 2 fishermen.
7. The author may not agree but Italy does have racism issues and is well documented in Italy and Europe. Causes are varied but the racism in Italy is more profound than compared to Scandinavian countries. So white washing racism as post colonial bete noir is being naive.
1. The initial part is not redundant for the simple reason that it provides the most crucial backdrop to it all. I agree that the Italian deception has changed the game and is in some ways a reset, but it does not imply that there were no issues beforehand.
2. The solution can be nothing but diplomatic because it is not just to have the marines languish in jail until the law is sorted out. The law is not yet written on UNCLOS. If you think this is about murder and not UNCLOS first, you need to read the first part of the article😛
3. It is. However, the point here was not legal but revealing the hypocrisy of those screaming for “justice” now.
4. Fair enough. One must also ask, then, how does one know that the St. Anthony was not indeed planning on raiding the Enrica Lexie? This ‘what if’ and ‘perhaps’ game does not hold without evidence. If you wish to argue that the fishermen killed by the Sri Lankan Navy were ALL running arms to the LTTE, evidence to the effect should be furnished.
5. Jurisdiction. Italy does not accept that India has the right to try the two men. Italy could have indeed accepted jurisdiction, gone through the trial, and then just let the marines go when they got back. It was not their intent to be duplicitous. Also, accepting Indian jurisdiction sets an unhealthy precedence for future cases.
6. Pre-meditated?! The marines never met the fishermen, nor did they plan that a ship – on the high seas, mind you – would approach for them to attack. Nor were they loitering in the area, looking for some Indians to kill. There was no chain of command either for the Enrica Lexie is a civilian vessel. The two marines were military personnel assigned to guard the civilian vessel.
7. I do not think that Italy is free of racism – that was not the debate. The issue was that were they to criticise the Indian judicial system – they have not yet – it might actually be based on facts and not a racial impulse. Staying on topic and in the context of this case, the Italian challenge of India’s jurisdiction does not seem to be based on any racial motive. In fact, the crux of this dispute has been seen in many places…they are even considering a review committee for UNCLOS but such a call has not yet gained critical mass.