Murder Most Foul: Curious Case of the Italian Marines:

The
recent arrest and prosecution of two Italian navy marines (Massimilano Latorre and Salvatore Girone), on board the Enrica
Lexie, in connection with the death of two Indian fishermen (Valentine and Ajesh Binki) has received much media
attention. With a spate of diplomatic communication and conflicting facts
emanating from Indian and Italian corners, the legality of the Kerala High
Court proceedings stands shrouded with uncertainty. Here, I attempt to briefly outline
the international legal landscape in which this argument unfolds. Before
delving into the legal issues involved, however, a brief outline of the
(largely disputed) facts is helpful.
Broadly, as the Supreme Court narrates, “[o]n February 15, 2012, an (sic) First Information Report was lodged
at Neendakara Coastal Police Station by one Fredy, owner of the Indian
registered fishing boat St. Antony. It was alleged in the FIR that at 4.30 p.m.
(IST) on that day while the fishing boat St. Antony was sailing through the
Arabian Sea, incriminate (sic) firing was opened by an Italian Ship – M.T.
Enrica Lexie (first Appellant). As a result of firing from the first Appellant
vessel, two innocent fishermen who were on board … died. On the basis of FIR,
Crime No. 2/2012 Under Section 302 of the Indian Penal Code, (Indian Penal
Code) was registered
The Italians
dispute this version. First, they claim
that warning shots were fired in the air and water surrounding the boat. Secondly, they claim that the Enrica
Lexie was not, as the Indians claim, 2-3 nautical miles of the Kollam coast,
but rather, 33 nautical miles away.
The
larger question is: Are the Italian marines guilty as charged? That is a matter
for the competent court to determine on an appreciation of the evidence. My
inquiry here is to see which court is
competent, the Indian or the Italian?
This,
in turn, depends on two related questions: First, can Indian courts exercise extra-territorial
jurisdiction, and if so, is such jurisdiction precluded by sovereign immunity ratione materiae.
Broadly, international
law governing the law of the sea is found the United Nations Convention on the
Law of the Sea (UNCLOS) and customary international law – both binding on India
and Italy. The UNCLOS establishes 3 zones, each with varying sovereign rights
for the coastal state: the territorial sea (extending up to 12 nautical miles),
the continental shelf (24 nautical miles) and the exclusive economic zone (200
nautical miles). This regime is reflected internally in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and
other Maritime Zones Act of 1976 as well. Whilst the territorial
sea envisages complete sovereign rights, the continental shelf is a halfway
house for sovereign rights and the EEZ allows for limited exploitation of economic resources, scientific research,
marine environment and artificial structures.
Assuming
the offence was committed 2-3 nautical miles off the Kollam coast, India is
justified in international law in exercising criminal jurisdiction within its
territory, as any other crime. Assuming the validity of the Italian facts,
however, the question concerns the exercise of extra-territorial jurisdiction.
I
believe that India may nonetheless exercise criminal jurisdiction in such a
case based on the passive personality principle along with the dictum of the Lotus and Arrest Warrant cases
decided by the PCIJ and ICJ respectively.
A
safe argument by India would rest on the famous dictum by the PCIJ in the Lotus case: that anything not prohibited by
international law is permitted by it. Accordingly, it transfers the burden on
Italy to find a rule of international prohibiting such exercise of
jurisdiction. Though persuasive, the Lotus
dictum has been described as “the high water mark of laissez-faire in international
relations, and an era that has been significantly overtaken by other
tendencies
.
” (Joint
Sep. Op., Judges Higgins, Koojimans and Burgenthal, Arrest Warrant case, para
51
). Almost a century of state practice
and opposition of unlimited extra-territorial jurisdiction would leave the
Indian argument precariously placed. Whilst state practice can be found in
support (see Filártiga
v. Peña-Irala
, and other instances recorded by Justice Breyer
in Sosa v. Machain),
these instances relate mostly to the lex
speacialis
of crimes under international law (torture, genocide etc.) that
engage community interest. In fact, in the past few decades, disputes
concerning exercise of territorial jurisdiction have witnessed objections on
the lack of a positive right to
exercise jurisdiction. (demonstrated here).
Indeed, Judge Simma’s recent
attack
on the Lotus principle in
the Kosovo Advisory Opinion only stands to reaffirm this argument. Interestingly,
here, Justice P. Gopinathan’s remark that the marines were engaged in
‘terrorist’ attacks would, arguably, engage universal jurisdiction. With
respect, however, I believe that Justice Gopinathan’s remark had no bearing on
his finding on jurisdiction, as the charge against the marines is of murder
under the IPC, and not the Indian municipal counterpart of the terrorism, howsoever
defined in international law.
Rather,
I believe India would be well-placed in asserting jurisdiction on the passive
personality principle. As Bassiouni recounts, jurisdiction may be asserted on
the basis of territoriality and its extensions (if the crime was committed on
the territory of the State), the active personality theory (perpetrator is a
national of the State), passive personality (victim is a national of the
State), the protected interest theory (where essential interests of the state
are engaged in the crime) and the universality principle.
The
question, then, is: does the passive personality principle find support in the
UNCLOS/Geneva Convention (“GC”) or customary rule of international law? My
answer is yes. Though ships are subject to the “exclusive jurisdiction” of the flag state (Article 92, UNCLOS;
Article 6, GC), Article 96 and Article 11 respectively speak of complete
immunity of government non-commercial ships from the
jurisdiction of any State other than the flag State, implying the possibility
of jurisdiction in commercial ships. More specifically, though, the Article
97(1) of UNCLOS and Article 11(1) of the GC exclude
the passive personality principle explicitly, though only in relation to a collision
or other navigational incident. However, as per a literal reading under Article
31 of the Vienna Convention, and as the travaux
demonstrate, these provisions contemplate guilt for maritime fault, rather than ordinary crimes such as murder. 
It is
here that the rules of custom are more developed. Though repudiated in the
American Restatement, and the Harvard Draft Convention, Bassiouni reluctantly admits
that “the [passive personality] theory …
must continue to be considered applicable in any situation in which its use is
not prohibited by international law.
” Articles 97 and 11 notwithstanding, I
am unaware of any independent proscription. To the contrary, the extradition of
Adolf Eichmann by Israel in 1973, prosecutions under the Sexual Offences Act in
the United Kingdom  post 2003 and Art.
113-7 of the French Code Pénal, amongst other instances of state practice
support this principle.
Finally,
one must mention the similarity of the present facts and the Lotus case, where Turkey was questioned
for prosecuting French seamen for the death certain Turkish seamen in a
collision between French and Turkish ships. There, the Court vindicated the
Turkish stand. Although the precise basis for establishing jurisdiction is
unclear from the judgment, the Court in the Assert
Warrant
case clarified that a combination of floating territoriality
(indicating sovereignty over the victim boat) and passive personality was
sufficient to engage jurisdiction – and that is precisely the case here.
Having
argued that Indian Courts can
exercise jurisdiction under international law (the question of whether the IPC
permits such an action in Indian law remaining untouched), the next relevant
question is of sovereign immunity, as claimed by the Italian Republic. Sovereign
immunity may be as against the individual’s status (ratione personae) or that which attaches to his functions (ratione materiae). The former is limited
to high-ranking officials (heads of state and the like) and thus, it is
reasonable to exclude the Italian marines from this sphere. (Cassese in his
treatise ‘International Criminal Law’, 309-10 deals with this comprehensively).
The question of functional immunity presents a greater challenge. In a
nutshell, such conduct-based immunity may be claimed by state officials in
respect of official acts. So, are the Italian marines ‘state officials’, and
was their act of killing an ‘official’ one? I answer both in the positive. First, the term ‘state official’ is not
defined under treaty. The International Law Commission, in its work on privileges and
immunities, however, adopted the definition of State organ under the ILC Articles on
State Responsibility
, which is “not
limited to the organs of central government, to officials at a high level or to
persons with responsibility for the external relations of the State, [but also] organs of government of whatever kind or classification, exercising whatever
functions, and at whatever level in the hierarchy
”. This is supported by
state practice, notably the Pinochet No. 3 case in the UK, the 23rd
November 2004 Court of Cassation judgment concerning head of the Malta Ship
Registry and the exemption granted by the US District Court of Columbia in Belhas to the head of Israeli Army
Intelligence (466 F. Supp. 2d 127). Thus, one must see whether the acts of the
marines are attributable to the Italian Government, as the converse would
satisfy the test for immunity. Cleary, these acts fall within Article 4 of the
Articles on State Responsibility. The next question is whether the acts were
‘official acts’? Here, crucially,
whether or not an act is jure imperii does not depend on the international legality or otherwise of the
conduct, but on whether the act in question is intrinsically governmental. This
in turn depends on an analysis of the nature of the act as well as the context
in which it occurred
” (Akande &
Shah
, EJIL, 830). Here, the acts occurred in the context of use of armed
force/exercise of police power as against a possible pirate threat. Indeed, the
two marines were placed on the ship by the Italian Government, and not through a third-party private operator. In
terms of the acts they performed, i.e. protecting Italian property from piracy,
the nature of the act in itself tends towards a state function. Whilst facts in
this sphere are not fully disclosed (nature of the appointment of the marines,
their assignment, scope of authority on board the ship, reporting authority
etc.), the available information does tend towards a favourable outcome for the
Italians. In fact, in a somewhat ‘discrete’ manner, the Italian Government has
also ‘settled’ its case (further evidence of attribution) with the first
informant Fredy and 3 others for an undisclosed amount in three Admiralty Suits
before the Lok Adalat.
Given the
intricate factual and legal matrix, one hopes that these points of
international law are fully appreciated by the Kerala High Court (one way or
another), and the machinery of international law respected at a time where
Indian interests are also constantly engaged in other states. 
 Guest post by Raag Yadava, a student at the National Law School of India University. The views are his own.
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Shashank
Shashank
9 years ago

Raag,

From a policy perspective don't you think that your argument re: the UNCLOS not prohibiting the passive personality principle w.r.t. crimes such as murder could seriously undermine the freedom of navigation in the high seas and tilt the balance completely in favour of coastal state rights?

The passive personality principle seems more relevant to the SUA Convention of 1988 and the Indian implementing legislation of 2002. This is important because the drafters of the SUA Convention, mindful of the fact that it was going to tilt the balance between the freedom of navigation and the rights of coastal states in favour of the latter, included a comprehensive list of safeguards to prevent the abuse of coastal states' rights. The UNCLOS, in contrast, does not offer any such safeguards and thus the passive personality principle could potentially destroy the freedom of navigation on the high seas were it to be seen as a valid exercise of extraterritorial jurisdiction under the UNCLOS.

Personally, I think the India has a better case in asserting jurisdiction (passive personality) on the basis of the SUA Act of 2002. But, it seems that India is not invoking the SUA Act. See this comment on my post on this issue: http://ilcurry.wordpress.com/2012/02/27/the-enrica-lexie-incident-and-international-law-some-preliminary-thoughts/#comment-263

Shashank

Guptan Veemboor
Guptan Veemboor
9 years ago

Mr.Sahank, I am not one who knows law. I write this as a common man. You have written that India should have invoked SUA Act. My doubt is this. SUA Act was made to control terrorism on high seas. This incident has nothing to do with terrorism. As such just invoke it is not proper I feel. It will be like invoking TADA or POT to a regular murder case. If Enrica Lexie stopped after firing and tried to board the boat then SUA Act can be invoked. Here it is alleged that they fired and went away. How it is an act which can invoke SUA Act?
Further the alleged incident had happened clearly out of territorial waters of India. IPC is applicable only to those who are liable to Indian laws when they are out of territorial waters. The ship Enrica Lexie was out of territorial waters and it was an Italian flagged ship. India has no authority to ask it to come to Kochi and board it and arrest the marines. I would say the whole thing was illegal.
I would say this case should go to ICJ and let it take a decision.
Talking on this, I am wondering how the Indian police arrested the MV Prabhu Daya also. The collision happened out of territorial waters. It was a Singapore flagged ship. Even if you arrest the crew on the basis they are Indians, there was no justification to arrest the ship and detain it.
VK.Guptan

DIGITALASIAN
DIGITALASIAN
9 years ago

The Indian authorities and politicians involved will also see this incident as an opportunity to see how far a European power can influence India and whether India is now an upcoming global player in world politics. Such issues will have more sway than the intricacies of international law unfortunately.

Guptan Veemboor
Guptan Veemboor
9 years ago

As of now I do not think any country other than India and Italy has even noticed this incident. India which thinks that to become number one power in the world is a matter of days has taken it as test question to challenge a European nation. In Italy also because of the recent change of guard domestic pressure must be mounting to assert its right. In the interest of the world community and maritime practice the case should go to ICJ to settle once for all the question whether the country where the crime has initiated or the country where its effect was produced should have the jurisdiction. This is a unique case and a decision by an International Law authority will give precedence for all future cases of this type.

Vikrant Shetty
Vikrant Shetty
9 years ago

Your article on Exclusive Economic Zone is eye-opening.
For more on UNCLOS and the Law of Sea kindly go to:

http://mowingthelaw.blogspot.in/2012/07/unclos-1982-and-new-regime-of-exclusive.html

Ajay Balachandran
Ajay Balachandran
9 years ago

I strongly disagree with Guptan's claim that "In the interest of the world community and maritime practice the case should go to ICJ to settle once for all the question whether the country where the crime has initiated or the country where its effect was produced should have the jurisdiction."

I strongly believe that in the interest of world community, that question must be settled here in Indian Courts.

One more issue here is that of extradition. All EU countries have taken the arrogant position that they would not extradite a person to a country where the death penalty exists. We (who have the death penalty) need to take the position that we will not extradite anyone to a country which takes this stand.

Guptan Veemboor
Guptan Veemboor
9 years ago

The crime happened in international waters and laws applicable to international waters as per UNCLOS should be followed. As regards country which the crime has affected, if someone is murdered in a foreign country he is tried as per the law of the country the crime was committed. So the crime, if at all, has been committed in international waters, it should be tried as per the laws pertaining to international waters. Period.

Adish
Adish
9 years ago

@ Guptan
This incident has not taken place in international waters. There is no evidence in support of this claim. It has taken place 2-3 nautical miles from Indian coast.