The Supreme Court of India has yet again granted one of the Italian marines accused of killing two Indian fishermen an extension to stay on in Italy on medical grounds until 30 April 2016. This comes amidst reports that Italy could be planning to refuse sending the marine back to face trial for murder in India. Reports also say that Italy would try to get the other sailor involved in the incident out of India (he is now spending time in the Italian Embassy in New Delhi.)
The Enrica Lexie incident seems to have grown into an irritating thorn in the relations between India and Italy. Given that the incident occurred four years back and there does not seem any possibility of near closure to the issue, it needs to be examined whether continuing with this case would be worthwhile to India. But before that it would be useful to delve briefly into the facts of this case.
Though Italy has tried everything, used all its diplomatic ammunition and has run from pillar to post, India has remained firm in its resolve.
It was on the unfortunate evening of 15 February 2012 that Massimiliano Latorre and Salvatore Girone, two Italian Naval marines serving on a private oil tanker, Enrica Lexie, flying the Italian flag opened fire on a fishing boat off the coast of Kerala killing two Malayali fishermen . The marines mistakenly believed the fishing boat to be a pirate vessel. The incident occurred far away from the Somalian coast, the usual operational areas of Somali pirates to counter whom vessels plying on the route carry armed escort.
The firing from Enrica Lexie happened just outside Indian territorial waters at a distance of 20.5 miles from the coast of Kerala. As per international law up to 12 nautical miles can comprise a country's territorial waters (where the normal criminal jurisdiction of the country extends to). A further 12 miles is the contiguous zone and a total of 200 miles from the territorial waters is the exclusive economic zone (EEZ) of a nation as per the UN Convention on the Law of The Sea.
Soon after the incident, Indian law enforcement swiftly stepped in, seizing the ship and arresting the two marines on murder charges. Italy first challenged the arrest before the Kerala High Court stating that India lacked jurisdiction. They also argued that the two personnel involved were naval marines and could not be tried in India. The matter was soon taken up to the Supreme Court.
In the apex court, India's criminal jurisdiction extending beyond the territorial waters of 12 miles was called to question by Italy. The Supreme Court ruled that based on notifications issued by India pursuant to the Convention on the Law of the Sea, her jurisdiction in criminal matters extended to the entire 200-mile EEZ thus bringing the Enrica Lexie incident triable under Indian law. The Supreme Court also held that only the Union Government and not the state of Kerala could exercise jurisdiction in such a matter and ordered that a special court to try the case be set up.
With no options left in India, Italy took the matter to an International forum. They filed a case for arbitration before the International Tribunal for the Law of the Sea at Hamburg, Germany. At the tribunal, the two main contentions of Italy were to freeze the proceedings before Indian courts and to allow its sailors to get back to Italy. India not only opposed Italy's contention but also challenged the jurisdiction of the International Tribunal to entertain Italy's case.
Four years since the occurrence of the incident, the trial in the case has not started.
The tribunal in an interim order accepted the first contention of Italy but rejected the second. In a blow to India, the tribunal rejected India's contention that the matter was purely an internal one governed by Indian laws and therefore the tribunal had no jurisdiction. The tribunal will now hear arguments on the merits of this case which may take at least a year to complete.
Should India reconsider its stand?
The point has been forcefully made by the Indian government that it is not a banana republic. Neither the Indian government nor the Indian courts will shy away from exercising their jurisdiction. Though Italy has tried everything, used all its diplomatic ammunition and has run from pillar to post, India has remained firm in its resolve.
However, Indian courts cannot ignore the international nature of the case. Though the court has ruled that India does have jurisdiction, it has in this case generally moved with caution. The matter currently stands stayed in light of the order of the international tribunal. It should be noted that the Supreme Court has also been highly courteous (almost to the extent of being indulgent) towards the marines. They were allowed to leave the country and one of them on health grounds has been on a rather long absence.
Four years since the occurrence of the incident, the trial in the case has not started. Even if the trial ends in conviction, the marines will have at least two opportunities of appeal. With the matter now in the tribunal and the hearing on merits yet to begin before it, further delay in commencement of trial is expected.
If the Italians are ready to apologise and also commit to try the marines under their laws, I believe it is a fit case for us to let go.
It is understood that the Italian government has compensated the families of the fishermen who were killed. Of course, the Indian nation is an injured party. But having made its point already, if the Italians are ready to apologise and also commit to try the marines under their laws, I believe it is a fit case for us to let go.
This is the right time to be magnanimous. On humanitarian considerations to the marines and their families and given that the victims' families have been duly compensated, and conscious of the unfortunate reality that the legal processes are sure to go on for years, India could be large hearted and as a goodwill gesture just let the marines go.
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