Tag Archives: Daniele Mancini

The Italian Marines Case – Two Years And Counting

25 Tue Feb 2014

Posted by in India, South Asia

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It is no surprise that even two years after India arrested Massimiliano Latorre and Salvatore Girone, two Italian marines on the MV Enrica Lexie, its courts are yet to resolve the case. After initial disputes over jurisdiction of the marines and a brief fear over their flight, Italy agreed to India’s adjudication over the case after the Ministry of External Affairs promised not to seek the death penalty. Since then, the case has hardly moved forward except to wade into the minefield of political posturing.

In March 2013, the Government of India announced the establishment of a special court to hear the case; this was largely to expedite a case that would have a direct impact on the country’s foreign relations. However, contrary to the MEA’s assurance not to seek the death penalty, the Ministry of Home Affairs decided to prosecute the Italians under the stringent Suppression of Unlawful Activities Act.

In response to Delhi’s sudden hard stance – the marines had been allowed to go home over Christmas and to vote last year – Rome recalled its ambassador, Daniele Mancini, to discuss the issue. The Italian foreign ministry condemned the “evident Indian inability to handle the issue” and has complained about yet another “unacceptable, deliberate delay” in the courts. While the Italian government summoned the Indian ambassador to register a protest, some Italians have taken to writing hate mail to the Indian Embassy and a live bullet was found in the mailbox a few days ago.

The invocation of SUA, unwittingly or otherwise, has consequences far beyond the immediate trial of the marines. The Italian government has told the Supreme Court of India that charging their marines under SUA is tantamount to declaring Italy a terrorist state. Rome has also approached its European Union counterparts as well as the United States to urge them to condemn India’s charge of piracy against the Italian marines. NATO has expressed concern over Delhi’s reckless expansion of the scope of piracy and terrorism as has the European Union.

The uncertainty over which law the Italians would be tried under even after two years – the GoI has changed its mind six times – led the SCI last week to ask the government to file an affidavit clearly specifying the law under which it intends to try Latorre and Girone. Buckling under international pressure, Delhi dropped the charges under Section 3(g) of the SUA which carried the death penalty if found guilty. The GoI insists that the trial will be held in India and hopes to retain charges under Section 3(a) of SUA which carry ten years imprisonment for the guilty. Italy has objected to the very notion of an anti-terrorism law being applied to its marines and asked that Latorre and Girone be allowed to go home until the trial starts.

The marines case did not make much of a splash in Italy two years ago when the marines were initially arrested; most Italians were content for the law to take its course. However, the inept handling of the case by the Indian government has put the issue in the spotlight in Italy and support for the marines has increased dramatically. Italy’s new prime minister, Matteo Renzi, has assured his countrymen that the “absurd and infuriating affair” will remain a priority for him. The Italian press has now even suggested that India’s ruling Congress party is trying to secure a quid pro quo between the case of the Italian marines and the AgustaWestland corruption scandal.

Unfortunately for Latorre and Girone who have already spent two years in limbo in India, the upcoming general elections make progress on their case extremely difficult. If the GoI releases them until charges are filed, or if it decides, by an uncharacteristic stroke of common sense, to diplomatic arbitration as Italy had initially suggested, there is little doubt that Sonia Gandhi’s Italian origins will be bandied about in the press and on social media. However, pushing on may reveal the weakness of India’s position, that the marines are culpable, at most, of homicide not amounting to murder. Indians might ask, then, why the case was not settled two years ago and the generous compensation package offered by Italy accepted. To a long list of election woes, the Congress may not wish to add yet another one.

There is no level at which this case has not  been mishandled by the government. From the initial claim over jurisdiction to the questionable permission for the marines to go home and now the indecision over what law to try the accused under, politics and public perception have been allowed to undermine the judicial process at every step. While two years to file charges may be considered quick by Indian standards, it is positively shameful in any modern democracy. The GoI’s behaviour has turned a non-newsworthy arrest into popular public support for the marines back home, a disinterested Italian press into one that hints at conspiracies and further scandals in India, and bystanding European nations into concerned Italian allies.

The Home Ministry has openly worked against the External Affairs Ministry (to what end can only be speculated) and harmed India’s ties with a friendly foreign power for the sake of Delhi’s incessant domestic squabbles. That no one in the government sees this for the diplomatic train wreck that it is or does anything about it makes one wonder if India’s leaders are indeed ready to play a larger role on the world stage that they often lay claim to. The tragedy of the two slain fishermen has now been compounded by the unreasonably long captivity of Girone and Latorre. Whether justice is forthcoming soon or not, India and its legal system have been made to look the part of a clown on the international stage.

This post appeared on Daily News & Analysis on February 27, 2014.

Diplomatic Immunity or Impunity?

14 Thu Mar 2013

Posted by in Europe, India, Italy, South Asia

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In the latest development of the Italian Marines case, the Supreme Court of India ordered the Italian Ambassador, Daniele Mancini, not to leave the country. This order, which is supposed to be in effect until March 18, is probably to give the SCI time to decide whether it wants to prosecute Mancini for contempt of court because the two marines he had stood as guarantor for will not be returning to India to stand trial. It is not clear what else this restraining order implies, or how the order is to be implemented, but India’s foreign minister, Salman Khurshid, has rushed to say that his government will comply with the Supreme Court’s orders. Interestingly, the former secretary-general of the Lok Sabha, Subhash Kashyap, has also been roped in to say that the SCI’s order is perfectly legal despite the Ambassador’s diplomatic immunity.

The last-minute face-saving exercise mounted by both the Government of India and the Supreme Court is not only farcical but also deeply embarrassing and probably illegal. As everyone and their grandmother knows by now, the Vienna Convention on Diplomatic Relations of 1961 expressly prohibits the mistreatment of diplomats. Article 29 states clearly, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” Furthermore, Article 31 provides, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” However, though the article extends “immunity from…civil and administrative jurisdiction,” it stipulates three exceptions: 1. an action involving immovable property in the host state the diplomat is not holding on behalf of his state; 2. if the diplomat is involved as an executor, administrator, heir, or legatee as a private person and not on behalf of his country; and 3. any professional or commercial activity in the host state by the diplomat in his personal capacity, outside his official functions. Furthermore, as Article 32 states, a diplomat cannot claim immunity in the case of a counterclaim against a claim he has initiated.

Is diplomatic immunity absolute? Can diplomats act with impunity under the cover of their special status? In the landmark case of Empson v Smith, the judge ruled that “diplomatic immunity is not immunity from legal liability, but immunity from suit,” meaning that Mancini is expected to respect the laws of his host state and were he not to, the Italian Ambassador would be liable for his actions but cannot be sued unless his immunity has been waived. This understanding has come under much dispute recently, particularly in cases of grievous wrongdoing such as murder or crimes against humanity. No matter, Mancini’s contempt of court is not tantamount to either murder or genocide. It is true, as Article 32 of the VCDR also states, that immunity can be waived. Yet this is, obviously, unlikely.

The discussions of the International Law Commission are also interesting in that they reveal the thinking behind the VCDR. As the noted Austrian diplomat and jurist Alfred Verdross remarked, “it was inappropriate to describe inviolability as an ‘abstract principle.’ The principle of inviolability was generally accepted and applied in practice, while ‘self-defence’ and ‘measures to prevent the diplomatic agent’ from committing crimes or offences’ were simply exceptions to the application of the principle. AEF Sandström, the Special Rapporteur of the ILC, added that it must be understood that a diplomatic agent might not always be able to claim inviolability. This is the sense in which diplomatic immunity and inviolability was understood. However, the VCDR makes no attempt to distinguish crimes according to their gravity or their corresponding degree of immunity.

Empson v Simith makes it clear that though the Court may not proceed against a diplomat while s/he holds immunity, the proceedings are not null and void – the Court may, upon termination of immunity, revive the proceedings against the diplomat. This can be done even though he was entitled to immunity when the events concerned took place or when process was originally begun. Such action is not post facto since it was merely waiting for the procedural hurdle of diplomatic immunity to be removed. While personal inviolability is a physical privilege, diplomatic immunity is a procedural obstacle.

Although Kashyap claims that Mancini lost immunity when he stood as a guarantor for the return of Massimiliano Latorre and Salvatore Girone, the SCI record shows that Mancini did so as a representative of the Italian government, not in his private capacity, thus not being subject to the exceptions stated in Article 31 of the VCDR: “petitioner No.3, the Ambassador of Italy to India…Daniele Mancini…representing the applicant No.3…” However, the SCI may indeed argue that a crime has not been committed until the two Italian marines violate their return date, and restraining Mancini is merely an exercise of its right to “prevent the diplomatic agent from committing crimes or offences” despite the declared intent not to return by the Italian Foreign Ministry. This would raise the question, what will the SCI do after the date has passed? Will Manicini be free to leave? If so, the SCI notice to the Italian Ambassador is merely knee-jerk and symbolic.

There is also this to be asked – what does the GoI hope to gain by enforcing a symbolic gesture on a technicality? Surely, one can admit that healthy relations between India and Italy warrant the overlooking of a technicality (if it exists)? Yet India’s Ministry of External Affairs has rushed to uphold a dubious decision, probably made in haste, by the SCI. The right course of action would have been for the United Progressive Alliance government to file an amicus brief with the SCI declaring that the GoI requests the Court to overlook Italy’s renegation in the case of the Italian marines in the interests of India’s relations with a foreign power. Since foreign relations fall within the purview of the Executive, such a brief would be well within its rights to issue.

The unfortunate reality is that both the UPA government and the SCI have been caught with their pants down in this incident. In an effort to conceal and whitewash their incompetence, perhaps with an eye on the upcoming elections, the UPA has instead launched a blustering attack on the Italian government and taken refuge behind an ill-conceived SCI notice. Such behaviour will only lower India’s esteem in the international community. And yes, we voted, by omission or commission, for this government.

This post appeared on Tehelka on March 15, 2013.

The Italian Job

12 Tue Mar 2013

Posted by in India, Italy

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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.