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19 March, 2013

A diplomatic mess

BRP Bhaskar
Gulf Today

The case of the two Italian marines who shot and killed two Indian fishermen at sea, off the Kerala coast, a year ago has spilled out of the courtroom, creating a diplomatic mess.

The marines were on anti-piracy duty aboard the Italian tanker MV Enrico Lexie which was going from Singapore to Egypt. According to the Italians, they opened fire in self-defence, mistaking the men in the fishing boat, Saint Antony, for pirates. Apparently they did not exercise due caution. The fishermen were unarmed. Somali-based pirates operate in the Arabian Sea but they are not active near the Kerala coast.

The Italians claimed the incident occurred in international waters. However, the Kerala police, which registered a criminal case against the marines, said the vessel was in Indian waters or in the contiguous zone. The positions of the two craft were not fixed with the help of their logbooks or the global positioning system.

The offending vessel was under the Italian flag and the alleged killers were members of the Italian armed forces. When the Indian coast guard brought the ship to Kochi and the Kerala police took the marines into custody, the Italian consul general in Mumbai flew into the port city to safeguard the interests of the ship and the marines.

Overlooking the fact that a sovereign state was involved, the Indian government left the issue to Kerala, presumably to avoid the opposition dragging the name of Italian-born Sonia Gandhi, who is Congress president and chairperson of the ruling United Progressive Alliance, into the matter.

Kerala’s Congress-led government was facing a crucial Assembly by-election at the time. The regional and national media’s vigorous pursuit of the fishermen’s families’ cry for justice put pressure on it to adopt a tough line.

Under the UN Convention on the Laws of the Seas (UNCLOS), domestic laws apply fully in the territorial waters, which extend up to 12 nautical miles from the coastline. In the contiguous zone which extends to 12 nautical miles beyond the territorial waters, local laws apply in respect of some subjects. In certain situations, the home state and flag state have concurrent jurisdiction.

The Indian government failed to apply its mind to the issue of jurisdiction. When the marines challenged the Kerala proceedings against them, the Supreme Court ruled that the state has no jurisdiction since the shooting occurred in the contiguous zone, and not in the territorial waters. It said the central government can prosecute the marines under the domestic law, subject to the provisions of Article 100 of UNCLOS, which enjoins upon all countries to cooperate in the repression of piracy.

While directing the Centre to set up a special court to try the marines, the Supreme Court said Italy could question India’s jurisdiction invoking the provisions of UNCLOS. Even if India and Italy were found to have concurrent jurisdiction, this directive would hold good, it added.

Within two months of the shooting, the fishermen’s families filed a petition in a local court seeking compensation from the Italian shipowners. With the help of the Catholic Church, which commands the allegiance of a large section of the fishing community, the Italians quickly worked out an out-of-court settlement and paid the two families Rs10 million each.

While insisting on the right to try the marines, India showed them special consideration. In Kerala, they were lodged in a police club or a guest house, not in a jail. In Delhi, they were allowed to stay in the Italian embassy.

Last December, the Kerala high court permitted them to go home to spend Christmas with their families. Last month the Supreme Court allowed them to go to Italy to vote in the elections.

On March 11, the Italian government informed the Indian government that the marines, who were due to return by March 22, would not come. With this, the Italian ambassador, who had given an undertaking in the court guaranteeing their return, fell foul of Indian law. However, it is not easy to punish him as he has diplomatic immunity.

Thirteen months after the shooting the special court to try the marines has still not come up. Given India’s court delays, a final verdict in the case may be a long way off.

When India had lawful custody of the marines, it studiously avoided the diplomatic route. By holding them back Italy is trying to force it to come to the diplomatic path. Both sides having taken false steps, things may well get worse before they can improve. -- Gulf Today, Sharjah, March 19, 2013.

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