This article has been authored by Shivam Kunal, a third year law student at Institute of Law, Nirma University, Ahmedabad.
The Enrica Lexie was an Italian, privately-owned oil tanker. At the time of the incident, it was sailing from Singapore to Djibouti and had on board an Italian Vessel Protection Department (V.P.D.). The waters alongside Kerala had been declared a high-risk area for piracy by the International Maritime Organization (I.M.O.). Two Italian marines Massimiliano Latorre and Salvatore Girone, on board the ship shot dead two Indian Fisherman on an Indian ship under the wrongful identity of them being pirates. The ship Enrica Lexie was docked at the Kochi Port by the Indian Coast Guard after they received the news of the attack. The two accused, Massimiliano Latorre and Salvatore Girone, were brought into custody and charged with homicide. Receiving a First Information Report (F.I.R.) on 19 February 2012, Italy filed a petition to the High Court of Kerala for the quashing of the F.I.R. and all subsequent charges.
Chain of Events
Italy initiated proceedings against Latorre and Girone, who were charged with murder before the Tribunal of Rome and also asserted the claim for exclusive jurisdiction over the case. Kerala High Court dismissed the petition filed by Italy for the quashing of FIR, and a trial was initiated for murder, an attempt of murder and mischief. Italy filed a second petition before the Supreme Court, and it was allowed as the apex court ruled that the Kerala High Court did not have the jurisdiction to prosecute the case, but the Union of India shall do it. Subsequently, it asked the center to set up a Special Court to try this case. The center did not set-up a special court for the trial and rather handed over the proceedings to the National Intelligence Agency (NIA). The NIA framed charges based on the Indian Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (S.U.A. Convention) 2002. However, in 2013 both the marines were allowed to leave the country and fly back to Italy due to diplomatic and health concerns. Italy later on refused to send back the accused unless India guaranteed that the trial will not be commenced on death penalty. The diplomatic relation between the two countries were constantly being strained on the concerned matter. The act of marine terrorism initially levied by the NIA was later on reduced to charges of murder. Italy went on to submit the trial to the International Tribunal for the Law of the Sea (ITLOS), under Annex VII of the United Nations Convention on the Law of Seas (UNCLOS).
Contentions of the Countries
Italy pleaded before the ITLOS to issue provisional measures stating that India shall immediately refrain from carrying out any judicial activity against the marines in question. It also contended that India shall not exercise any form of jurisdiction over the Enrica Lexie incident throughout the proceedings before the Annex VII Tribunal. The Republic of Italy based their claim over the same fact that India lacks sovereignty but owns certain limited sovereign rights by virtue of Article 33 and Article 56 of the UNCLOS. Italy claimed that the jurisdiction of India shall not be extended exclusively to the contiguous zones. Inside the contiguous zones, the sovereign rights of a state are limited and it can be exercised for the purpose for exploring the Continental Shelf and exploiting its natural resources only. It has jurisdiction to enforce its fiscal, revenue, and penal laws by intercepting vessels engaged in suspected smuggling or other illegal activities attributable to a violation of the existing laws. Water beyond the contiguous Zones are high seas and interestingly, under section 188A of the CrPC India enjoys extra-territorial jurisdiction that extends to the high sea (including the EEZ). Italy based its entire claim on the fact that the incident took place outside the territorial waters of India, and thus, they cannot exercise complete sovereignty and subsequently claim jurisdiction over the matter.
India claimed perspective and enforcement jurisdiction stating that the victims were Indian nationals, and also the incident took place on an Indian vessel inside the Economic Zone of the country and thus, it exercises jurisdiction over the matter. The power of a State to exercise prescriptive and enforcement jurisdiction is subject to its sovereignty over a specific territory. This is also known as the territoriality principle by virtue of which a state exercises jurisdiction over any event within its territorial boundaries, and such power extends to non-citizens doing an act within the territory of the state. In the instant matter, Italy had claimed exclusive jurisdiction while the law states that any other state in principle is not allowed to assert jurisdiction over affairs that take place within the territories of other States. Indian professor Manimuthu Gandhi observed in the aftermath of the decision of the Indian Supreme Court, if-
"the legal issues relating to the Enrica Lexie incident, including extraterritorial jurisdiction, are taken before an international adjudicatory forum, a different decision could emerge given that the subject matter of the dispute involves certain grey areas of international law."
The place of incident was outside the territorial waters of India since it took place at a distance of 20.5 nautical miles from the Indian sea coast of Kerala. However, the zone still falls within the Indian contiguous zone and Exclusive Economic Zones. The counter approach was taken by India based upon the power of the ministry to introduce new laws or extend the territorial application of the law. Section 188 of the Criminal Procedure Code (CrPC) asserts the extraterritorial jurisdiction of the country, and the same had been extended to EEZ by virtue of official notification. A simple reading of Section 188 CrPC makes it clear that since the offense was directed towards Indian citizens on high waters (including the EEZ), it could exercise jurisdiction over the matter. Further, the claim of India was based upon the "Effects doctrine." Therefore, since the crime, i.e., the death of the Indian fishermen, occurred on the Indian ship and not on the Italian oil vessel, India had concurrent jurisdiction over the case pursuant to the objective territoriality principle. The effects doctrine allows a state to extend its jurisdiction through domestic law unless it is expressly barred by an international law. India relied upon Article 59 of UNCLOS, which read:
“In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.”
Verdict of the tribunal
The tribunal did find the conduct of Italian marines in violation of UNCLOS Article 87(1)(a) and 90 and asserted that India is entitled to compensation. Italian position that the marines, being members of the Italian armed forces in the official exercise cannot be tried by Indian courts, was held and immunity was granted to Italian marine officials. The bench ruled jurisdictional matter in favor of Italy and stated that despite India having concurrent jurisdiction in the case, official immunity rules out the exercise of the same as an exception to the local laws. Italy contended that officials could not be tried in India for an act done in the official exercise of their duty. However, the fact that murder happened on an Indian ship and also that the two Marines were deployed on a private commercial vehicle was blatantly ignored.
India constantly countered the claim of Italy when it came to extending immunity to the accused. The question of immunity is governed by a specific multilateral or bilateral treaties or agreements. In the instant matter, the deployment of the marine officials was done in the absence of any such treaty. Moreover, the marines were deployed on a commercial vehicle. In the absence of a precedent or any specific law which immunes the marines from local criminal jurisdiction, the uncertain and unclear nature of international law came into fold again. Only heads of states, heads of governments and foreign ministers customarily enjoy immunity abroad apart from accredited diplomats who are covered by the Vienna Convention. Suppose a country enacts a specific law for its military officials and includes them within the definition of a state official. Could they be exempted from an act similar to the nature of the act committed in the instant act? India has been deprived of jurisdiction due to the persistent grey areas of law, and the same could set a dangerous precedent. India has been allowed a compensation from Italy but the final deliverance of the same remains under thin air considering the relations between the two countries and relationship of India with European Union (EU). These two factors have played an immense role in the development of the entire case.