It’s official: Italian Marines won’t return; Italy initiates international dispute against India

According to a press-release issued by the Italian Ministry of Foreign Affairs today, the Italian marines facing trial in India for the shooting and killing of Indian fishermen off the coast of Kerala will not be returning to India. “Returning?”, you might rightly wonder, considering that the marines are under trial in India and have spent the past year or so imprisoned there. Turns out that the marines were allowed to go to Italy by the Indian Supreme Court to vote in the Italian parliamentary elections. (Now we know what happened in Italy!) Apparently, according to an Indian lawyer representing the marines, “[t]he judges were sympathetic to the marines’ request to exercise their democratic right of casting their votes”.

As a preliminary matter, and correct me if I am missing something here, I have many dear Italian friends residing outside Italy, and all of them voted in the national elections by postal ballot. I wonder what made the Indian Supreme Court think that the marines needed to be physically present in Italy to exercise their franchise, when even the Italian government’s own website details the procedure of voting by post for Italians resident overseas. And, if the Court didn’t notice, why didn’t the counsels for the Indian government not point this out? Seems to me the curious case of a gun and a foot.

I should also note that this is not the first time the marines were given home leave to visit Italy. Last December, the High Court of Kerala had allowed the marines to go home to celebrate Christmas and the New Year with their families in Italy. Then, as well as now it seems, the Italian government, through its embassy in Delhi, submitted an undertaking in the Court guaranteeing that they would return to India and face trial. At the end of the first visit, the Italian government lived by its promise, and return they did in January. This time, however, things aren’t looking so nice. To refer to the Italian Ministry of Foreign Affairs press-release: “Italy informed the Indian government that, given the formal establishment of an international dispute between the two States, the riflemen Massimiliano Latorre and Salvatore Gironel will not return to India at the end of the permission granted to them” (Google translation).

Formal dispute? Yes. We know that following the arrest of the Indian marines in the Indian port of Kochi, Italy has persistently maintained that India lacks jurisdiction to try the marines. Even if the  Indian courts had jurisdiction, Italy argues that the marines would be protected by immunity by virtue of their position in the armed force. In India, these issues were thought to have been settled by a judgment of the Supreme Court, holding that India has jurisdiction to try the marines under its domestic criminal laws, and that any plea relating to immunity could only be raised and addressed during the actual trial process, and not a supreme court proceeding. Italy obviously disagrees with the Supreme Court’s ruling, and believes that it is contrary to India’s obligations under international law. Referring to the press-release again:

Italy has always held that the conduct of the Government of India violated the international law obligations imposed on India by virtue of customary law and treaty law, in particular the principle of immunity from the jurisdiction of the foreign state bodies and the rules of the Convention United Nations Convention on Law of the Sea (UNCLOS) of 1982.

In the aftermath of the judgment of 18 January 2013 of the Supreme Court of India, Italy has formally proposed to the Government of New Delhi, the start of a bilateral dialogue in the search for a diplomatic solution to the case, as suggested by the Court, where drew the hypothesis of cooperation between States in the fight against piracy, as envisaged by the above UNCLOS.
In light of the lack of response of India to the Italian request to enable such cooperation, the Italian Government considers that there is a dispute with India concerning the rules as contained in the Convention and general principles of international law applicable to the case.

Against this backdrop, the Italian ambassador in Delhi delivered today a note verbale to the Indian government notifying it of a formal dispute and expressing Italy’s

willingness to reach an agreement on a resolution of the dispute through international arbitration or judicial settlement, asking India to activate the consultations provided for in UNCLOS.

So why is it that the marines returned after their Christmas holiday in January, but will not be coming back this time? The answer seems to be in the Supreme Court of India’s judgment delivered on 18 January, after their return. The Court upheld India’s jurisdiction to try the marines. Up until then, Italy was obviously hopeful that the Supreme Court would side with its position. But with this judgment, it became clear that the prosecution in India would go ahead. And so, when the time came for the marines to board their return flight, following the great satisfaction that accompanies any voting exercise, they simply declined!

With this background, I hope to return soon with my thoughts on what lies ahead. For now, I hope that the Indian Supreme Court and the Government are happy with the results of the Italian elections (quite similar to what happens in India after every election), and the role they played in it!

Enrica Lexie Incident: Firing by Italian Marines a Terrorist Act? Italy Accepts Indian Courts’ Jurisdiction?

Following up on our discussion of the Enrica Lexie incident off the coast of Kerala, here’s an update on the latest developments:

1. As noted earlier, the detained Italian marines as well as the Italian consulate had filed a  petition in the Kerala High Court for declaration that Indian courts did not have jurisdiction to try the Italian marines. The oral arguments in the matter are now over and the court has reserved its judgment. An indication of the Court’s mindset, however, can be gauged from its classification of the shooting by the Italian marines as an act of terrorism. From the jurisdictional perspective, this is very interesting because the Court has previously observed in another case (Raymund Gencianeo v.State of Kerala, 2004 Cri. LJ 2296, para. 6) that Indian courts have jurisdiction over criminal offences committed by foreigners only in India’s territorial waters. If, however, the act is treated as a terrorist act, instead of just a criminal act, it could be possible for Indian courts to exercise universal jurisdiction, irrespective of where the alleged crime occurred. (See this, for further discussion)

2. Italy, on the other hand, appears to have accepted Indian courts’ jurisdiction over the above incident. This detail emerged at a meeting between the Indian and Italian prime ministers on the sidelines of the Nuclear Security Summit in Seoul on 26 March 2012.