Enrica Lexie case

Enrica Lexie case: Justice denied

Print edition : July 31, 2020

Italian marines Massimiliano Latorre (right) and Salvatore Girone, a file photograph. Photo: PTI

India accepts an international tribunal order in the case relating to the killing of two fishermen by Italian marines off the Kerala coast. Chief Minister Pinarayi Vijayan is not happy.

The government of India has filed a special leave petition before the Supreme Court on July 3 seeking disposal of all criminal proceedings against the two Italian marines in the eight-year-old Enrica Lexie case in which a fishing boat was fired at off the shores of Kerala on February 2012, resulting in the death of two Indian fishermen.

The government said that it had “decided to accept and abide” by the order passed by the Arbitral Tribunal constituted under the United Nations Convention on the Law of the Sea, which held on July 2 that “India is precluded from exercising its jurisdiction over the marines and entitled to claim compensation from Italy”.

In September 2015, the Supreme Court had ordered a stay on all proceedings in Indian courts during the pendency of the case filed by Italy before the international tribunal.

Reacting to media reports that India had failed to present strong arguments before the international tribunal, Chief Minister Pinarayi Vijayan on July 4 described the outcome of the case in the international court and the Union government’s decision as “unfortunate”. He said the Kerala government also had reservations about the Central government’s decision to seek disposal of all related cases before the Supreme Court.

He urged the Centre to take adequate follow-up measures on the issue of compensation, as the tribunal had said that India should now consult and reach an agreement with Italy for compensation for  “loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St. Antony [the fishing vessel]”.

On February 15, 2012, Italian marines on board the commercial oil tanker MV Enrica Lexie shot and killed two of the 11 crew members of the Indian fishing vessel. The vessel was seized by the Coast Guard after it was redirected to the Kochi port. The two Italian marines Massimiliano Latorre and Salvatore Girone, who were on guard duty at the time of the incident, were arrested on February 19 on the charge of murder under Section 302 of the Indian Penal Code.

Valentine Jalastine (45) from Kollam and Ajesh Binki (25) from Kanyakumari, the fishermen who died, became the first known victims of irresponsible action by security units deployed in merchant vessels to tackle piracy in the high seas.

As the case of Enrica Lexie amply demonstrated (https://frontline.thehindu.com/the-nation/article30165702.ece), employing armed men on commercial vessels was problematic especially when it could not be ensured that they would act responsibly, follow internationally accepted rules of procedure, judge perceived threats correctly and resort to lethal action only after a scaled escalation of deterrent action.

One estimate at that time said nearly 30,000 armed men were employed in such ships around the world.

The case also put the focus on the implications of military personnel being dispatched for such work instead of private security guards and the command structure they would work under on the high seas that excluded the master of the ship.

Other issues also came to fore such as armed personnel from merchant vessels getting in and out of ports of call; the possibility of infiltration of terrorists or other unlawful elements in such security units; the possibility of injury to or death of innocent fishermen and seafarers and resulting issues of liability; and the implications of such ships passing through the territorial waters of coastal states.

The progress of the Enrica Lexie case had therefore generated much interest in the international maritime community.

From the early stage of the case in the Kerala High Court, Italy had claimed that it had already initiated criminal proceedings against the marines under its law and that, upon conviction, they could get a prison term of not less than 21 years.

Meanwhile, on April 23, 2012, the Italian government reached an agreement with the legal heirs of the two fishermen, who had impleaded themselves in the case before the High Court. Based on the agreement, the heirs announced that they were withdrawing unconditionally all legal proceedings against the marines.

Under the terms of the agreement reached with the knowledge of the High Court and the Lok Adalat, the Italian government was to pay a compensation of Rs.1 crore each to the two families, an act that came in for criticism by the Supreme Court subsequently.

The criminal case filed by the State police, however, went ahead and was first taken to the Supreme Court and then to the international tribunal.

The incident and subsequent developments soured relations between India and Italy, with both countries raising equally strong claims on who had the jurisdiction to try the case.

Further, the facts of the case complicated the legal battle. For one, the shots were fired by Italian marines privately hired for guard duty in a private Italian vessel, but the victims were unarmed Indian fishermen on an Indian vessel near the Indian coast and on a routine fishing expedition within India’s exclusive economic zone.

The incident occurred either near or beyond India's territorial sea (up to 12 nautical miles from the shore) where it enjoys sovereignty, or within the contiguous zone (area adjacent to the territorial sea between 12 nautical miles and 24 nautical miles) where the country, arguably, has control only over specified offences.

The oil tanker and the marines were taken into Indian custody.

Italy’s argument was that the United Nations Convention on the Law of the Sea provides for the exclusive jurisdiction of the flag state over the ships that operate on the high seas; that the event occurred on the high seas, beyond India's territorial waters and jurisdiction; and that the two marines were only performing their duty “to prevent piracy” and were, therefore, eligible for sovereign immunity.

India argued that the case was well within its jurisdiction because two unarmed Indian citizens were killed on an Indian fishing vessel and that claims of the act being committed just beyond the country's territorial waters would not invalidate the legally valid claims (under the provisions of the Indian Penal Code) favouring justice for the Indian victims through Indian laws and courts.

Both sides also argued that because it involved crimes by or against their citizens, under their own laws, they should be allowed to conduct the investigation and prosecution.

On July 2, after an eight-year-old legal battle, the international maritime tribunal rejected India's claim for exclusive jurisdiction to try the two Italian marines.

In a clear setback to India, which has been insisting that the marines must face trial as per the Indian law, the tribunal said the marines were “entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction over the Marines”.

The tribunal, however, ruled that Italy should pay compensation to India for “the loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew” of the Indian fishing vessel.

The tribunal also rejected Italy’s claim to compensation for the detention of the marines.

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