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Revisiting jurisdiction over the Enrica Lexie incident

In my last post about the Enrica Lexie incident, I stated that under the United Nations Convention on the Law of the Sea (UNCLOS), Italy had excusive jurisdiction over the Italian military personnel who allegedly killed two Indian fishermen mistaking them for pirates. Roger Philips at Communis Hostis Omnium rightly pointed out that the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention) contained some contradictory jurisdictional provisions. Upon a closer analysis of the relevant international law, it is clear that Italy and India have concurrent jurisdiction over the Italian armed guards.

The Enrica Lexie

India and Italy have both signed and ratified the 1988 SUA Convention requiring States Parties to criminalize the enumerated offences from Art. 3 in their domestic penal codes. Art. 3(1) lists performing “an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” as well as “injur[ing] or kill[ng] any person, in connection with the commission or the attempted commission of any of the [enumerated] offences.” The alleged actions of the Italian marines clearly implicate the SUA Convention.

SUA Art. 6 expressly allows for jurisdiction based on the territorial, nationality, passive personality, and protective principles. Thus while UNCLOS confers jurisdiction on Italy alone, the SUA Convention allows for India to claim jurisdiction under Arts. 6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1) and 6(1)(3). As a purely practical matter, jurisdiction falls to the country that reaches the alleged perpetrators first, subject to the principle of aut dedere aut judicare (“extradite or prosecute”).

Indeed, the facts of the Enrica Lexie mirror those from the famous 1927 Lotus opinion by the PCIJ where a French ship collided with a Turkish ship killing eight Turkish sailors on the high seas. The French captain was prosecuted in Turkish courts and the Turkish and French governments submitted the question of jurisdiction to the PCIJ. The latter held that, absent a relevant provision to the contrary, Turkish courts could exercise criminal jurisdiction over the French captain because the incident took place on the high seas and had a substantial effect on Turkey.

Art. 6 of the 1958 Geneva Convention on the High Seas, which says that all ships “save in exceptional cases expressly provided for in international treaties . . . shall be subject to [the] exclusive jurisdiction [of the flag state] on the high seas,” provided a provision contrary to the PCIJ’s holding in Lotus that was subsequently reflected in UNCLOS. The SUA Convention apparently provides for an express exceptional case anticipated by art. 6 of the Geneva Convention. To obtain exclusive jurisdiction over the Italian guards, Italy would have to convince India, through diplomatic channels, that the SUA Convention did not apply to the Enrica Lexie because the presence of armed military personnel on board made it a ship “operated by a State when being used as a naval auxiliary,” and thus outside the auspices of SUA pursuant to art. 2(1)(2) – a nearly impossible scenario.

So, as Douglas Guilfoyle points out on the European Journal of International Law’s blog EJIL Talk, whether the Italian marines will be indicted by the Indian authorities will be a question of sovereign immunity, not jurisdiction. Because the Italian guards were part of the military, they are considered a Vessel Protection Detachment (VPD) rather than a team of Private Armed Guards (PAGs). As a general rule, the former enjoys sovereign immunity while the latter does not. Professor Guilfoyle suggests that though it is ultimately up to the Indians to respect Italy’s sovereign immunity – and India will undoubtedly seek out exceptions it can use to overcome the immunity claim – the immunity claim will likely survive because the Italian guards were acting in their official capacity and state practice is such that “immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions.”

Despite the presence of concurrent jurisdiction, Italy will most likely have the ultimate responsibility for deciding whether or not to compensate the victims of the Indian fishermen’s families or punish its military personnel for its actions. Regardless of the ultimate outcome, the investigation must be transparent, as the question of liability is ultimately a factual one requiring the two competing stories of the incident to be reconciled. If such reconciliation reveals the case of mistaken identity described in my previous post to be true, the victims’ families should be compensated and the guards punished for their hasty and improper use of force.

11 Responses to “Revisiting jurisdiction over the Enrica Lexie incident”

  1. syam says:

    The SUA ACT 2002 passed by the Indian Parliament may also be relevent in the context of this discussion.

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  2. Maurizio Balestrino says:

    In its conclusion, the Author of this interesting article goes very close to taking for granted that the two Italian Marines killed the alleged fishermen by mistake. By contrast, available evidence shows that the two ships (Enrica Lexie and fishing boat) never got even close to each other, and that the whole case mounted by the State of Kerala (India) is a gross misunderstanding or worse. See http://www.seeninside.net/piracy/enricalexie_it.pdf (unfortunately it is in Italian, but one could easily make a translation, I hope).

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    • Ravikrishnan says:

      The ‘available evidence’ is something I would very much like to know about.
      But one thing that I do know (I live in Kerala,under 200 kms. from where the shooting incident took place)is that the Italian authorities never made what can be called the right gestures, and have made all the wrong noises (I think that is the right word).
      A good case in point is the issue of the place of custody of the marines,about which the Italian premier is supposed to have made a reference when he met his Indian counterpart on the sidelines of an international summit a few days ago. Italy wants the marines out of Poojappura central jail and in a guest house or similar facility. This might have just been possible if they had quietly gone to jail and then put a request for other facilities. Instead we had the spectacle of Italian Deputy Foreign Minister Steffan de Mistura creating a scene in the jail in the middle of the night, creating all the adverse publicity possible.

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  3. V.K.Guptan says:

    Mr.Bellish, I am just a common man and not connected with any law business. I got to this blog belatedly. I have one doubt. I understand that SUA was made with the intention of fighting terrorism and piracy at sea. Is it proper to use it as a multipurpose weapon to fight all unlawful activities? The ‘alleged’ shooting of the two fishermen by the Italian Marines can hardly fall in the category of terrorism or piracy. Shooting was done not to board the boat and loot it nor to create terror in India by wanton death of innocents. It was in an action done to protect the ship to which the marines had been assigned . They did make a miscalculation as the boat was not a pirate boat. That is a different issue to be settled in a trial in a court.I read a day back an interview of Lord Bingham by Mr.Joshua Rosenberg where Lord Bingham told of a typical instance of misusing law when he said ‘a law on terrorism is used to tackle a heckler’. Is this bringing SUA also something on that line at a bigger scale?

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  4. V.K.Guptan says:

    Sir, The Italian Marines returned on 22nd of March on the last day they were supposed to comeback to India and a big diplomatic row was avoided. On April 2nd Supreme Court ordered that the restriction on the movement of the Italian ambassador is removed and he is free to go anywhere. In a matter of two days and that too on a week end Indian government designated a special court to try the case of this Italian Marines, which they could not do for the last two months. Then a week or back it asked the National Investigation Agency which had been constituted to pursue the cases related to terrorism to investigate this case of the Italian Marines. In what way this case is connected to terrorism , I am not able to fathom.
    Now a problem had cropped up. While the marines were in Italy and the Italian government was refusing to send them back the diplomatic channels were busy and during the negotiations India assured that if the marines are tried here in India and found guilty of killing the fishermen they will not be awarded death sentence. It is said that on that assurance only the marines were sent back to India.
    Now the Indian government is caught in a dilemma. National Investigating Agency will go after the marines armed with the Suppression of Unlawful Act which if applied the marines can be awarded capital punishment if found guilty. And India has assured that they will not be awarded capital punishment. Now they are toying with the idea to hand over the investigation to Central Bureau of Investigations which will go after the marines armed with Indian Penal Code which can be ‘bent’ not to award capital punishment if they are found guilty of murder.
    My question is ‘ how the same crime can draw two different punishment just because two different laws are applied’. The gravity of the crime is not changed. Is it right to give different punishment to the same crime just because two different laws give different opinion? Will it not be a miscarriage of justice?

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  6. [...] of International Law: – The Enrica Lexie and Unintentional Terrorism, di Jon Bellish (02/04/2012) – Revisiting jurisdiction over the Enrica Lexie incident, di Jon Bellish (02/03/2012) – Armed Maritime Security and the Enrica Lexie, di Jon Bellish [...]

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