Tag Archive | "Enrica Lexie"

The Enrica Lexie and Unintentional Terrorism

Cross-posted at piracy-law.com

An interesting exchange took place at the High Court of Kerala on Friday between presiding Justice PS Gopinathan and VJ Matthew, counsel for the owner of the Enrica Lexie. Regardless of the level of significance one attributes to Justice Gopinathan’s remarks, the dialogue sheds light on the tension and deep mistrust surrounding the events of February 15th.

Mr. Matthews, representing Dolphin Tankers argued that the Italian marines had to be classified as terrorists in order for the India’s statute implementing the IMO’s SUA Convention (SUA Act)[1] to apply. In response, Justice Gopinathan said, “[t]he firing on Indian fishermen by two Italian marines- Massimiliano Latorre and Salvatore Girone-off the Kerala coast was an act of terrorism…As far as victims are concerned, their relatives are concerned, as far as Indians are concerned [the alleged shooting was] a terrorist act.”

The High Court of Kerala

To be fair, Justice Gopinathan did not declare the Italian marines terrorists as a matter of law. He merely stated that that is how the general public viewed them. It is nonetheless disturbing for an officer of an Indian High Court to give voice to his private opinion about the facts of a case before him, especially when that opinion deviates so far from reality.

Where Mr. Matthew’s claims are concerned, it is far from certain that the marines must be classified as terrorists for the SUA Act to apply. Although the SUA Convention was passed with the goal of suppressing international terrorism in mind,[2] the Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that if “any person” “performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” that person has “commit[ted] an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act under Indian law.[3]

The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.

But Justice Gopinathan’s response to Mr. Matthew’s good faith legal claim was far more dubious than the claim itself. Rather than satisfying himself by pointing out that an individual need not be legally classified as a terrorist for the SUA Act to apply, Justice Gopinathan declared by fiat, and counter to all reason, that the Italian marines had indeed committed “an act of terrorism.”

Though some argue that there is simply no internationally recognized definition of terrorism,[4] Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism “has gradually emerged” in customary international law.[5] According to the STL, terrorism is defined under customary international law as consisting of the following three elements:

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.

Of the three enumerated elements, only the third, that the act must involve a transnational element, is clearly present. As for the second, there is no way to argue that the Italian marines fired upon the Indian vessel to spread fear among the Indian population or coerce the Indian government. They were acting as agents of the Italian government charged with the protection of a merchant vessel from the real and credible threat of maritime piracy. The unfortunate deaths of two fishermen do not change the character of the marines’ actions. Finally, it is presently impossible to know whether the Italians’ acts could be considered “murder” under the first prong. That determination can only be made once a competent tribunal establishes that the Italians were in fact the ones who shot the Indians and entertains any affirmative claim of self-defense made by the marines.

Furthermore, the alleged acts of the marines fails to satisfy even the minimal, “core definition” of terrorism propsed by Professor Marcello Di Filippo in the European Journal of International Law.[6] After surveying relevant international and domestic laws and sloughing aside any contested definitional aspect of terrorism, Professor Di Filippo concludes that an act of terrorism requires, at the very least: (i) an act of violence; (ii) when that act is targeted at civilians.[7] According to Di Filippo, this core definition is the absolute minimum standard under which an act could be properly considered terrorism.

Implicit in Di Filippo’s core definition is the requirement that the actor must at least believe that the targets are civilians, and one could even argue that the actor must intend to target the victims because they are civilians. Thus unless the Indian authorities can prove, at minimum, that the Italians knew that the Indians were unarmed before firing upon them, the acts of the marines do not rise to the level of terrorism. Justice Gopinathan’s statement that the marines committed a “terrorist act” accuses the Italians of a crime that does not exist – negligent or reckless terrorism.

An oral pronouncement by a Justice with no legal ramifications is hardly a groundbreaking development in what will surely be an interesting case. It does, however, illustrate the depth of mistrust between the Italians and Indians in this particular instance, with the Italians accusing the Indians of a vast conspiracy involving fabricated evidence and the Indians accusing the Italians of murder and now, apparently, terrorism. We are thus back where we started: waiting for the results of the ballistics report and hoping, perhaps against the available evidence, that cooler heads will prevail and due process will be afforded to all.



[1] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

[2] The Preamble of the SUA Convention notes that the state parties are “DEEPLY CONCERNED about the world-wide escalation of acts of terrorism in all its forms.”

[3] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No. 69 of 2002, art. 3(1)(a) (Dec. 20, 2002).

[4] Jean-Marc Sorel, Some Questions About Terrorism and the Fight Against its Financing, 14 Eur. J Int’l L. 365, 368 (2003) (describing the “confused mix” of definitions).

[5] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, at para. 83 (Feb. 16, 2011), available at http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11-01_R176bis_F0010_AC_Interlocutory_Decision_Filed_EN.pdf

[6] Marcello Di Filippo, Terrorist Crimes and International Co-Operation: Critical Remarks on the Definition of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008).

[7] Id. at 558-61.

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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.

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Armed Maritime Security and the Enrica Lexie

A dramatic story of death at sea has recently ignited both the Indian and Italian press. The story has yet to reach the United States, but it has all the makings of a headline-maker. Two Italian military personnel, operating as armed guards aboard the merchant vessel Enrica Lexie, are being investigated for the murder of two Indian fishermen at sea. Like any good news story, this one starts with a conflicting version of the events.

The Enrica Lexie

According to the Italians, the incident occurred 33 nautical miles off of the Indian coast at around 2:30pm Indian time. Italian Naval personnel aboard the Enrica Lexie spotted a vessel heading its way and identified five armed men above deck. After attempting to radio the vessel and shooting flares, the Italian guards fired three sets of warning shots at 500m, 300m, and 100m. The final set of shots was fired “into the sea across the bows of the fishing boat, which was not hit and in fact changed direction and turned back.” The Italian report disclaimed the possibility of any casualties. This version of the events is incomplete at best, as it fails to account for the two Indian fishermen who perished at sea.

The Indians, on the other hand, claim that the shooting occurred only 14 nautical miles off the coast at 5:00pm Indian time. The fishing vessel was crewed by eleven men, nine of whom were below deck sleeping at the time of the incident. The only two men above deck were shot by the Italian guards in what is being described by the Indian press as “murder by a better-equipped party on high seas.” The implication is that the Italian guards used force hastily, perhaps even ethnically profiling the fishermen as pirates.

Despite these conflicting stories, two things remain certain: a pair of Indian fishermen, Ajesh Binki, age 25, and Jalastein, age 45, were killed at sea, and a pair of Italian marines, Latorre Massimiliano and Salvatore Girone, are being held in police custody in India. If charged with murder under section 302 of the Indian penal code, the crime for which they have been charged, the Italians could face the death penalty. This is not likely to happen.

Though capital punishment is not a likely outcome, as India has only executed one person in the last 17 years, a murder trial in India would be a miscarriage of justice and a clear violation of international law. According to UNCLOS art. 2, a state’s territorial waters extend 12 nautical miles from its coast. Art. 33 provides for an additional contiguous zone extending up to 24 nautical miles from the baselines used to measure the breadth of the territorial sea.

Thus even if India’s version of the events is to be believed in its entirety, the incident occurred 2 nautical miles outside of India’s territorial waters, in its contiguous zone. There, art. 33 only allows India to “prevent infringement of its customs, fiscal, immigration or sanitary laws.” This is not to say that India has no claim against Italy whatsoever, but Indian penal law simply cannot apply to a set of events taking place outside its jurisdiction.

Jurisdiction therefore falls to Italy as the flag state under art. 94 of UNCLOS, who should conduct a full, impartial investigation involving Indian authorities. Indeed under two of the three possible scenarios, the Italian marines may indeed be guilty of the unlawful killing, or even murder, of these two Indian fishermen.

There are therefore three potential scenarios to be considered.  Under the first scenario, the Italian Navy reported the events truthfully and to the best of their knowledge shortly/immediately after the incident’s occurrence. The Italian guards either believed they saw guns aboard the Indian vessel or actually saw guns, which were subsequently thrown overboard. Under this scenario, the Indian fishermen simply lied about the number of men that were above deck. Either way, the Indians ignored a radio call, flares, and two sets of warning shots, the third of which hit the wheelhouse and killed Binki and Jalastein. The Italians filed the report honestly, believing that nobody had been hurt. This would be an example of guards employing a proper, graduated use of force regime that resulted in the accidental death of careless fishermen. Frankly, the Italian’s report is difficult to square with the facts on the ground. Two men are dead from gunshot wounds, and more bullets were reportedly found on the deck of the Indian fishing vessel. This flatly contradicts the Italians’ report that, after firing over the bow, the fishing vessel turned and left the vicinity. A ballistics report must be done to confirm whether or not the bullets that killed the Indian fishermen and others found on their vessel were fired from the Enrica Lexie.

The second scenario is one where the Indian press has the facts largely correct, and the Italian guards improperly fired upon an innocent vessel. The Italian’s report would therefore be erroneous as it relates to the fishermen’s deaths. At best, the Italians fired a fourth set of shots at the wheelhouse, which it did not report. At worst, they assumed the fishermen were pirates and fired upon them without due warning. This version of the events is similarly problematic, as the Italian Navy is confirmed to have reported the event. It is difficult to imagine that the Italian military personnel, having knowingly killed two individuals at sea be they fishermen or pirates, would report the incident while simultaneously concealing the fact that two men had been killed by omitting it from their report. The truth is likely somewhere between these competing versions.

One compelling, though highly speculative, version occupying this middle ground is a simple case of mistaken identity. Here, both the Indians and the Italians are telling the truth, though the latter party is only telling half the truth. Under this scenario, we can assume there were two separate incidents. Armed would-be pirates carried out the first at 2:30pm, approximately 33 nautical miles at sea, and were repelled by the Italian guards’ show of force. Then, two-and-a-half hours later, 14 nautical miles off the Indian coast, a vessel full of nine fishermen had gotten quite close to the Enrica Lexie, as part of an apparently common practice where fishermen follow large crafts closely in hopes of catching fish stirred up in the larger ship’s wake. The Italian marines, still on alert from the previous attack, mistook the second vessel for the first and opened fire, killing two innocent men. If this scenario in fact took place, it is not only unacceptable, but it is also the specific reason that international law and practice has so strongly disfavored the presence of guns aboard merchant vessels.

Regardless of which scenario turns out to be most accurate, India has an obligation to release the Italian marines it is currently holding because they were not within the 12 nm territorial waters, and Italy has an equally powerful obligation to conduct a full and impartial investigation to learn the truth. The Italian guards should be held criminally responsible in Italy if they are found to have used unlawful force Hopefully this story will accelerate the international movement to regulate the use of private armed guards and mandate incident reporting. The international community cannot stand by as the Indian Ocean turns into a lawless frontier, potentially claiming innocent bystanders as victims.

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