The National Investigation Agency’s decision to charge the two Italian marines Massimiliano Lattore and Salvatore Girone for the deaths of Indian fishermen Gelatine and Ajesh Binki under the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (SUA) has been challenged in the Supreme Court by Italy. The incident occurred in February 2012 when the marines who were on armed guard duty aboard Italian oil tanker Enrica Lexie fired on the Indian fishing trawler St. Augustine. The incident, which led to great anger in Kerala and generally in the country occurred in India’s Contiguous Zone, 20.5 nautical miles from the Kerala coast.
Italian public opinion has been deeply agitated since the arrest of the marines in the case. The NIA’s decision has caused further outrage in that country as SUA was enacted to give effect to an international convention which was directed against terrorists and pirates, though these words do not find mention in the law. Consequently Italian Prime Minister Enrico Letta has said that the application of SUA to the marines is unacceptable. He has warned that India’s move will have negative consequences on India’s relations with Italy and the European Union (EU). Italian Foreign Minister Emma Bonino has also asserted that the marines are neither terrorists nor pirates, and carry out a role in the name of the Italian government. On her part EU’s foreign policy in-charge Catherine Ashton has noted that the case affects all of Europe, even while asking India to urgently find a mutually satisfactory solution in keeping with international law. NATO too has expressed concern on the invocation of SUA. All this has not attracted wide media attention in India as the country is preoccupied with the forthcoming general elections.
How has the issue been handled so far? Are India and Italy inevitably on a collision course? Will India’s relations with the EU be adversely impacted because of this case?
The case has been situated at the cross roads of complex legal, diplomatic, political and security issues in an emotionally surcharged environment. It was not easy for either country to handle, but the difficulties were compounded by initial Italian attempts to obfuscate the facts of the case. This enraged sentiment in Kerala. The Italians also reached an out of court settlement with the families of the deceased fishermen. They perhaps thought this would gain them sympathy. They should have known better, for this step riled the courts and did not dilute the criminal liability of the marines. They had already lost public and media goodwill when they reneged on Italian Ambassador Daniele Mancini’s assurance to the Supreme Court in 2013 that they would return to India after casting their votes. It is doubtful they will regain it any time soon, and without that innovative solutions to the problem cannot be considered.
The genesis of the case is rooted in the desire of the West to find a way to deal with the dangers of piracy, without fully worked out international conventions which will bind them and developing countries in equal measure. Hence, the evolution of the practice of sending armed guards on merchant ships without sharing the information with littoral states. Hence, also the establishment of private companies that put armed guards on ships in dangerous waters without an international legal regime backing these new developments. Catherine Ashton’s comments indicate that the EU wants the present system to continue and that the charge under SUA will hold out wide ramifications for the practice of armed guards. Instead of following the western lead, India should work actively to put in place equitable new international legal arrangements which will be capable of handling current threats on a sound legal basis.
The Kerala High Court had held that courts in the state of Kerala had jurisdiction to try the marines’ case even though the incident had occurred outside India’s territorial waters. The Italians who have consistently taken the view that India has no jurisdiction to try the case, appealed in the Supreme Court. The apex court set aside the Kerala High Court order, but held that the Union had the jurisdiction to try the case. But it did not give a final view in the matter, leaving it to the special court which will try the marines, to take a view on jurisdiction in the lights of facts that will emerge. This decision has lead to delays and left the jurisdiction issue unsettled.
The Home Ministry handed the case over to the NIA which can only act under SUA in this case. The NIA cannot investigate crimes covered under the Indian Penal Code per se. If the Supreme Court holds that SUA is not applicable, another legal way will be found to continue with the case. Given the upcoming elections and Sonia Gandhi’s Italian origins, the Congress cannot be open to charges of going soft in this case. Besides justice demands that given the nature of the act the marines should face the law in India. If the courts do hold that India does not have the jurisdiction to try the marines, the case will naturally end. However given the way Indian courts function a final decision will take time.
The case is a major issue in domestic politics in Italy with right wing parties continuing to whip up public sentiment. It is not surprising that their ministers and parliamentarians are visiting Delhi to show solidarity with the marines. Italian political and media attention on the issue will remain high and they will seek to gain international sympathy to show that the government is active.
EU member states are unlikely to risk their relations with India in any great way even as they continue to show support for Italy. They would leave it to Brussels to make the effort.
All in all there is no early resolution in sight of this case and a negative impact on India- Italy relations should be anticipated.
Vivek Katju has served as India’s Ambassador to Afghanistan, Myanmar and Thailand. He was one of India’s chief negotiators during the hijack of Indian Airlines flight 184 in 1999 at Kandahar in Afghanistan, when he headed the Pakistan-Afghanistan-Iran desk at the MEA.
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