Tag Archive | "India"

Italian Oil Tanker

Homicide at Sea: Which Vessel is the Pirate in the Italy-India Conflict?


Italian Oil Tanker

The Italian Oil Tanker, Seized by Indian Police
(New York Times)

Some two dozen rounds of a powerful automatic gun are suddenly fired from one vessel on the high seas onto another. The latter is an unarmed Indian fishing boat with nets cast. Two fishermen are killed on deck, some eleven are asleep below deck and are injured. The vessel has some 16 bullets on it. The shooter, an Italian oil tanker, departs the scene and apparently does not report to the closest maritime authority that it has fired at presumed pirates. But of course, it itself may be the pirate by the Law of the Sea convention because the specific gunmen might just have been, while on their long voyage, bored or drunk when they saw some dark thin figures in the distance in the water and thought they would get some target-practice for fun.1  These homicides that took place on the high seas may have been accidental (e.g., the gun jammed) or unintentional or deliberate murder. We do not know because the facts have not been allowed to be tried in court proceedings.

The fishing vessel returned weeping to port, the Indian Navy and Coast Guard—to their credit—engaged in hot pursuit and managed to arrest the Italian vessel on the high seas, and the Italian vessel—to its credit—did not make a run for it but came into port.  Then the local provincial police arrested the alleged gunmen and charged them with murder, etc., under domestic law and also refused to let the ship free until it had paid a bond.

Who has had jurisdiction? Italy or India? From the beginning I, on the basis of my little learning in 1973-74 under the late great Professor DHN Johnson at the London School of Economics, one of the authors of the Law of the Sea Convention being written at the time, said the answer was both—it is a case of concurrent jurisdiction where Italy obviously has jurisdiction, as it was an Italian vessel that caused the homicide at sea, while India too has jurisdiction, as an Indian vessel was assaulted and India made the ship-arrest on the high seas.   The case needed clinical adherence to law and forensics by both countries in cooperative pursuit of the truth such that that elusive thing the interests of justice could prevail.

Italy rightly said the local domestic law of  the land did not apply, and the Supreme Court of India agreed with them. But Italy wrongly said India did not have jurisdiction at all, and the Supreme Court of India was clear that India had to create a Special Court for the purpose of a trial under international law.  Had India not made the ship-arrest and prosecuted the case, the possible criminal act that may be involved in this homicide at sea would have disappeared altogether.

The Ambassador, the Marines, and the Defense Attorney

The Ambassador, the Marines, and the Defense Attorney
(Deccan Chronicle)

Italy then asked for the two alleged gunmen to go home on parole for Christmas, the Supreme Court was assured by the Italian Government they would return to face trial, the Supreme Court granted them parole to do so, and they did return; some weeks later Italy asked for the two to go on parole again, this time to vote in their elections; again, with the same assurances, the Supreme Court of India allowed them to do so.

Now Italy has breached its undertaking to the Supreme Court and refused to return them, saying India is in breach of international law, and Italy has sent the alleged gunmen back to normal work without even any purported trial of facts in the case under Italian law or Italian military law.

The Italian Ambassador would normally be in clear Contempt of Court—except he has diplomatic immunity and cannot be arrested or prosecuted.  India, it seems to me, has no recourse but to take the drastic measure of declaring the Italian Ambassador and perhaps others of his staff persona non grata, and to expect an equivalent retaliatory measure from Italy, and for a chill in trade and business relations and tourism etc to set in for a while before things can get better.  Diplomatic expulsions need to demonstrate swiftness of purpose because they are a metaphor for warfare; waiting until March 22 because it is a court deadline or to give the other side a chance to respond is both tedious and silly. Besides, an expulsion is retaliated with by an expulsion usually; where it is not, it is the diplomatic equivalent of a military surrender.

It is an unfortunate rift in relations between friendly countries due to a random event on the high seas; it required the right application of international law to the facts, which neither Government separately or together managed to do; that was something I have feared and warned against from when it started.  In June, the local Italian Government consul asked to meet me and came to be fully apprised by me of what I thought the legal facts were and what could be done in the interests of justice. But they chose not to accept the advice.

Dr. Subroto Roy blogs at www.independentindian.com.

  1. Viz., “Article 101 Piracy consists of . . . any illegal acts of violence . . . committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed . . . on the high seas, against another ship . . . or against persons or property on board such ship.”

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And the Indian government is recognizing that indeed it does.

Rape and Murder in India a Wake-Up Call for Reform

It’s ironic that in India – which proudly proclaims a rich, ancient heritage and where the very symbol for strength and power in ancient scriptures is female (Shakti) – women today are struggling for a safe and dignified environment.

I was visiting India when a 23-year-old physiotherapy student, a victim of a brutal sexual assault in New Delhi in mid-December, was clinging to life in a hospital. She had been raped and severely beaten aboard a moving bus and eventually thrown out of the bus to die. Two weeks later, she succumbed to her internal injuries.

Police arrested five men accused of this heinous crime. They face rape, kidnapping and murder charges.

And the Indian government is recognizing that indeed it does. (Dawn)

And the Indian government is recognizing that indeed it does.

Typically in India, sexual crimes receive only cursory attention. They therefore go unreported and trials drag on forever. But this time there was extensive media coverage and unprecedented outrage all over the country. It seemed like a wake-up call, which led to peaceful demonstrations, especially by young people demanding an expedited trial, reform of outdated criminal laws, and effective implementation and enforcement of existing laws.

I was taken aback by the government’s initial response: Police used tear gas and water cannons to disperse the crowds, primarily college students. Law enforcement authorities barricaded roads and imposed emergency measures to crush the largely peaceful protests.

I was equally struck by the intensity of anger and resolve among my relatives and friends. My nephew and niece in New Delhi and their families were out on the streets with the protesters, a first-ever for them. New Year’s Eve, usually marked with joyous festivities, was a sober candlelight vigil, where several thousands gathered to remember and honor the victim. A similar scenario was witnessed all over India.

Day after day, the protests continued. Political leaders, who typically lead demonstrations and protests in India, were conspicuous in their absence. People were so angry at the politicians for their lack of sensitivity that when the chief minister of Delhi eventually showed up at a gathering after a few days, she was shouted down and had to leave. Public pressure mounted, forcing the government to act. The Home Ministry appointed a three-member commission, chaired by a former chief justice of the Supreme Court of India. The commission received more than 8o,000 suggestions for reforms to the criminal justice system.

The commission called for strict enforcement of sexual assault laws and tougher jail terms for offenders. It urged the legislature to amend the country’s antiquated criminal code and recommended specific changes, including requiring police officers to register every case of·precluding people charged with criminal offenses from holding political office. To expedite these and future sex-offense trials, the government has established special “fast-track” courts.

Mahalakshmi Mahalingam, a social worker who formerly managed a 24-hour rape crisis hot line for the Rape Assistance and Awareness Program in Denver, lamented that “in India, victim blaming is the norm. The current situation bears testimony to how bitter and enraged women are about sexual abuse, coercion and rape.”

The night before India’s Republic Day, which celebrates the enactment of its constitution, President Pranab Mukherjee described the Delhi attack as a “grave tragedy that has shattered complacency.” He called for the nation “to reset its moral compass.”

Eve Ensler, founder of the One Billion Rising campaign, which addresses violence against women, said at a press conference in Delhi, “With the discussion on sexual violence, the window to women’s equality is open wider here than I’ve ever seen.” I hope she’s right.

Ved P. Nanda is Thompson G. Marsh Professor of Law and director of the International Law Program at the University of Denver Sturm College of Law.

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Women throughout India say that their gender makes them vulnerable to attacks. (New York Times)

Critical Analysis: Gang Rape Brings India’s Sexual Assault and Rape Laws Under Scrutiny


Women throughout India say that their gender makes them vulnerable to attacks. (New York Times)

Women throughout India say that their gender makes them vulnerable to attacks. (New York Times)

On Sunday, December 16, 2012, in New Delhi, six men gang raped and brutally beat a 23-year old female university student resulting in her death. These events re-ignited an ongoing debate concerning India’s sexual assault and rape laws. The Indian government indicated that in 2011 they received more than 220,000 reports of violent crimes against women. However, government officials suspect that the actual number may be much higher. Women hope that this unfortunate incident will bring stiffer penalties to deter future rapes and assaults.

New Delhi authorities charged five of the six suspects with murder and several others offenses. They are investigating whether the sixth suspect is under the age of 18 and, therefore, a juvenile under New Delhi law. Although the crimes committed are punishable by death, India has been slow to execute prisoners. Currently India has hundreds of prisoners on death row. Groups such as Amnesty International, a non-governmental human rights organization, insist that the death penalty is not the solution. They face an uphill battle as citizens are outraged at the treatment of Indian women and demand an immediate overhaul of laws regarding rape and assault.

Numerous international lawmakers consider India’s laws governing rape to be narrowly defined and rooted in tradition. In many cases, it makes the possibility of conviction unlikely. The law lacks clear and concise sentencing guidelines and provides for a judge’s discretionary judgment in sentencing. Lawmakers have expressed frustration with evidentiary matters during court proceedings. The lack of sufficient evidence has a tendency to transform the trial into a battle of the genders where the men often win. Given the issues outlined, it is not surprising that the lawyer of three of the suspects charged urged them to plead not guilty.

In representing the accused, Manohar Lal Sharma stated, “[w]e are only hearing what the police are saying. This is manipulated evidence. It’s all on the basis of hearsay and presumption.” This accusation of manipulating the evidence outraged many of India’s citizens because a companion of the victim witnessed the entire attack and suffered injuries while pleading with the six individuals to stop. Further,a DNA test confirmed that the victim’s blood matched the blood found on the clothing of the accused. In response to the DNA findings, two defendants offered to testify against the others in exchange for a lighter sentence.

The out-pour of support from around the world serves as a glimmer of hope for women in India. Although they know that the process is gradual, they are optimistic that the future will bring change. The government formed a panel of legal experts charged with the task of reviewing suggested amendments to India’s rape and assault laws. The suggestions include sentencing guidelines, harsher prison sentences, and chemical castration. Either way, India needs a definitive definition of rape and sexual assault. Hopefully these preventative changes come in time because even after this horrific incident, another Indian woman was gang raped by seven men.   

Tausha Riley is a 2L at the University of Denver, Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.


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UNSN Rappahannock (The National)

Critical Analysis: U.S. Naval Ship Fires on Indian Pleasure Boat

USNS Rappahannock (The National)

A U.S. Navy supply ship fired at a small boat in the Persian Gulf on Monday, injuring three people and killing one. United Arab Emirates officials reported that the casualties were Indians on a small, white pleasure craft.

Before the incident, which some are calling a reflection of rising tensions in the region, the small boat had appeared to be heading for the Dubai port of Jebel Ali, the UAE’s main container port and a spot where U.S. vessels often stop to refuel. According to preliminary reports, the U.S. ship gave a verbal warning and warnings by radio and light signals to the boat when it was just over 1,000 yards away.  The naval ship then fired one warning shot, before finally firing the disabling shots.

The crew, mostly civilians along with a security team, on the USNS Rappahannock were reportedly acting in accordance with Navy procedures by using a series of nonlethal, preplanned responses to warn the boat. When the warnings failed to deter the smaller approaching boat, the security team on the USNS Rappanhannock fired rounds from a .50-caliber machine gun. By the time the shots were fired, the boat had approached to 100-200 yards away from the U.S. ship. UAE reports state that the boat did not receive any warnings and was moving on its rightful path.

The incident occurred near the Strait of Hormuz, where tensions have been rising as Iranian officials threaten to close the waterway in response to increased U.S. pressure. Navy vessels are weary of other approaching boats, particularly after the October 2000 suicide bombing attack of the USS Cole. The U.S. has also been increasing its military presence in the area. The pending arrival of the U.S.S. John C. Stennis aircraft carrier group will give the Navy two aircraft carriers and associated warships in the region, as well as eight counter-mine ships.

Officials reported that UAE authorities are investigating the event, and that the Emirates’government would follow up after an initial review. United States’ officials have expressed their condolences and stated that they will be conducting an investigation as well.

Aiden Kramer is a 3L at the University of Denver and the Executive Editor of The View From Above.

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Kashmir & Jammu

Solving Kashmir: On an Application of Reason

This article has its origins in a paper “Towards an Economic Solution for Kashmir” which circulated in Washington DC in 1992-1995, including at the Indian and Pakistani embassies and the Carnegie Endowment, and was given as an invited lecture at the Heritage Foundation on June 23 1998. It was first published in The Statesman, in three parts, on Dec. 1-3, 2005.

I. Give Indian `Green Cards’ to the Hurriyat et al
India, being a liberal democracy in its constitutional law, cannot do in Jammu & Kashmir what Czechoslovakia did to the “Sudeten Germans” after World War II. On June 18 1945 the new Czechoslovakia announced those Germans and Magyars within their borders who could not prove they had been actively anti-fascist before or during the War would be expelled — the burden of proof was placed on the individual, not the State. Czechoslovakia “transferring” this population was approved by the Heads of the USA, UK and USSR Governments at Potsdam on August 2 1945. By the end of 1946, upto two million Sudeten Germans were forced to flee their homes; thousands may have died by massacre or otherwise; 165,000 remained who were absorbed as Czechoslovak citizens. Among those expelled were doubtless many who had supported Germany and many others who had not — the latter to this day seek justice or even an apology in vain. Czechoslovakia punished none of its nationals for atrocities, saying it had been revenge for Hitler’s evil (“badla” in Bollywood terms) and the post Cold War Czech Government too has declined to render an apology. Revenge is a wild kind of justice (while justice may be a civilised kind of revenge).

Kashmir & Jammu

India cannot follow this savage precedent in international law. Yet we must recognise there are several hundred and up to several hundred thousand persons on our side of the boundary in the State of Jammu & Kashmir who do not wish to be Indian nationals. These people are presently our nationals ius soli, having been born in territory of the Indian Republic, and/or ius sanguinis, having been born of parents who are Indian nationals; or they may be “stateless” whom we must treat in accordance with the 1954 Convention on Stateless Persons. The fact is they may not wish to carry Indian passports or be Indian nationals.

In this respect their juridical persons resemble the few million “elite” Indians who have in the last few decades freely placed their hands on their hearts and solemnly renounced their Indian nationality, declaring instead their individual fidelity to other nation-states — becoming American, Canadian or Australian citizens, or British subjects or nationals of other countries. Such people include tens of thousands of the adult children of India’s metropolitan “elite”, who are annually visited abroad in the hot summer months by their Indian parents and relatives. They are daughters and sons of New Delhi’s Government and Opposition, of retired generals, air marshals, admirals, ambassadors, cabinet secretaries, public sector bureaucrats, private sector businessmen, university professors, journalists, doctors and many others. India’s most popular film-actress exemplified this “elite” capital-flight when, after a tireless search, she chose a foreign husband and moved to California.

The difference in Jammu & Kashmir would be that those wishing to renounce Indian nationality do not wish to move to any other place but to stay as and where they are, which is in Kashmir Valley or Jammu. Furthermore, they may wish, for whatever reason, to adopt, if they are eligible to do so, the nationality of e.g. the Islamic Republic of Afghanistan or the Islamic Republic of Iran or the Islamic Republic of Pakistan.

They may believe themselves descended from Ahmad Shah Abdali whose Afghans ruled or mis-ruled Kashmir Valley before being defeated by Ranjit Singh’s Sikhs in 1819. Or they may believe themselves of Iranian descent as, for example, are the Kashmiri cousins of the late Ayatollah Khomeini. Or they may simply have wished to be, or are descended from persons who had wished to be on October 26 1947, citizens of the then-new British Dominion of Pakistan — but who came to be prevented from properly expressing such a desire because of the war-like conditions that have prevailed ever since between India and Pakistan. There may be even a few persons in Laddakh who are today Indian nationals but who wish to be considered Tibetans instead; there is, however, no Tibetan Republic and it does not appear there is going to be one.

India, being a free and self-confident country, should allow, in a systematic lawful manner, all such persons to fulfil their desires, and furthermore, should ensure they are not penalised for having expressed such “anti-national” desires or for having acted upon them. Sir Mark Tully, the British journalist, is an example of someone who has been a foreign national who has chosen to reside permanently in the Republic of India — indeed he has been an exemplary permanent resident of our country. There are many others like him. There is no logical reason why all those persons in Jammu & Kashmir who do wish not to be Indians by nationality cannot receive the same legal status from the Indian Republic as has been granted to Sir Mark Tully. There are already thousands of Sri Lankan, Bangladeshi and Nepalese nationals who are lawful permanent residents in the Indian Republic, and who travel back and forth between India and their home countries. There is no logical reason why the same could not be extended to several hundred or numerous thousand people in Jammu & Kashmir who may wish to not accept or to renounce their Indian nationality (for whatever personal reason) and instead become nationals, if they are so eligible, of the Islamic Republics of Afghanistan, Iran or Pakistan, or, for that matter, to remain stateless. On the one hand, their renunciation of Indian nationality is logically equivalent to the renunciation of Indian nationality by the adult children of India’s “elite” settled in North America and Western Europe. On the other hand, their wish to adopt, if they are eligible, a foreign nationality, such as that of Afghanistan, Iran or Pakistan, and yet remain domiciled in Indian territory is logically equivalent to that of many foreign nationals domiciled in India already like Sir Mark Tully.

Now if you are a permanent resident of some country, you may legally have many, perhaps most, but certainly not all the rights and duties of nationals of that country. e.g., though you will have to pay all the same taxes, you may not be allowed to (or be required to) vote in national or provincial elections but you may in local municipal elections. At the same time, permanently residing foreign nationals are supposed to be equal under the law and have equal access to all processes of civil and criminal justice. (As may be expected though from human frailty, even the federal courts of the USA can be notorious in their injustice and racism towards “Green Card” holders relative to “full” American citizens.) Then again, as a permanently resident foreigner, while you will be free to work in any lawful trade or profession, you may not be allowed to work in some or perhaps any Government agencies, certainly not the armed forces or the police. Many Indians in the USA were engineering graduates, and because many engineering jobs or contracts in the USA are related to the US armed forces and require US citizens only, it is commonplace for Indian engineers to renounce their Indian nationality and become Americans because of this. Many Indian-American families have one member who is American, another Indian, a third maybe Canadian, a fourth Fijian or British etc.

The same can happen in the Indian State of Jammu & Kashmir if it evolves peacefully and correctly in the future. It is quite possible to imagine a productive family in a peaceful Kashmir Valley of the future where one brother is an officer in the Indian Armed Forces, another brother a civil servant and a sister a police officer of the J&K State Government, another sister being a Pakistani doctor, while cousins are Afghan or Iranian or “stateless” businessmen. Each family-member would have made his/her choice of nationality as an individual given the circumstances of his/her life, his/her personal comprehension of the facts of history, his/her personal political and/or religious persuasions, and similar deeply private considerations. All would have their children going to Indian schools and being Indian citizens ius soli and/or ius sanguinis. When the children grow up, they would be free to join, if they wished, the existing capital flight of other Indian adult children abroad and there renounce their Indian nationality as many have come to do.

II Revealing Choices Privately with Full Information
For India to implement such a proposal would be to provide an opportunity for all those domiciled in Kashmir Valley, Jammu and Laddakh to express freely and privately as individuals their deepest wishes about their own identities, in a confidential manner, citizen by citizen, case by case. This would thereby solve the fundamental democratic problem that has been faced ever since the Pakistani attack on the original State of Jammu & Kashmir commenced on October 22 1947, which came to be followed by the Rape of Baramulla — causing the formal accession of the State to the then-new Dominion of India on October 26 1947.

A period of, say, 30 months may be announced by the Government of India during which full information would be provided to all citizens affected by this change, i.e. all those presently governed by Article 370 of the Indian Constitution. The condition of full information may include, for example, easy access to Afghan, Iranian and Pakistani newspapers in addition to access to Indian media. Each such person wishing to either remain with Indian nationality (by explicitly requesting an Indian passport if he/she does not have one already — and such passports can be printed in Kashmiri and Urdu too), or to renounce Indian nationality and either remain stateless or adopt, if he/she is so eligible, the nationality of e.g. Afghanistan, Iran, or Pakistan, should be administratively assisted by the Government of India to make that choice.

In particular, he/she should be individually, confidentially, and without fear or favour assured and informed of his/her new rights and responsibilities. For example, a resident of Kashmir Valley who chooses to become a Pakistani citizen, such as Mr Geelani, would now enjoy the same rights and responsibilities in the Indian Republic that Mr Tully enjoys, and at the same time no longer require a visa to visit Pakistan just as Mr Tully needs no visa to enter Britain. In case individual participants in the Hurriyat choose to renounce Indian nationality and adopt some other, they would no longer be able to legally participate in Indian national elections or J&K’s State elections. That is something which they say they do not wish to do in any case. Those members of the Hurriyat who chose e.g. Pakistani nationality while still residing in Jammu & Kashmir, would be free to send postal ballots or cross the border and vote in Pakistan’s elections if and when these occur. There are many Canadians who live permanently in the USA who cross home to Canada in order to cast a ballot.

After the period of 30 months, every person presently under Article 370 of the Indian Constitution would have received a full and fair opportunity to privately and confidentially reveal his/her preference or choice under conditions of full information. “Partition”, “Plebiscite”, and “Military Decision” have been the three alternatives under discussion ever since the National Conference of Sheikh Mohammad Abdullah and his then-loyal Deputy, Bakshi Ghulam Mohammad, helped the Indian Army and Air Force in 1947-1948 fight off the savage attack against Jammu & Kashmir State that had commenced from Pakistan on October 22 1947. When, during the Pakistani attack, the Sheikh and Bakshi agreed to the Muslim Conference’s demand for a plebiscite among the people, the Pakistanis balked — the Sheikh and Bakshi then withdrew their offer and decisively and irrevocably chose to accede to the Indian Union. The people of Jammu & Kashmir, like any other, are now bound by the sovereign political commitments made by their forebears. Even so, given the painful mortal facts of the several decades since, the solution here proposed if properly implemented would be an incomparably more thorough democratic exercise than any conceivable plebiscite could ever have been.

Furthermore, regardless of the outcome, it would not entail any further “Partition” or population “transfer” which inevitably would degenerate into a savage balkanization, and has been ruled out as an unacceptable “deal-breaker” by the Indian Republic. Instead, every individual person would have been required, in a private and confidential decision-making process, to have chosen a nationality or to remain stateless — resulting in a multitude of cosmopolitan families in Jammu & Kashmir. But that is something commonplace in the modern world. Properly understood and properly implemented, we shall have resolved the great mortal problem we have faced for more than half a century, and Jammu & Kashmir can finally settle into a period of peace and prosperity. The boundary between India and Pakistan would have been settled by the third alternative mentioned at the time, namely, “Military Decision”.

III. Of Flags and Consulates in Srinagar and Gilgit
Pakistan has demanded its flag fly in Srinagar. This too can happen though not in the way Pakistan has been wishing to see it happen. A Pakistan flag might fly in the Valley just as might an Afghan and Iranian flag as well. Pakistan has wished its flag to fly as the sovereign over Jammu & Kashmir. That is not possible. The best and most just outcome is for the Pakistani flag to fly over a recognised Pakistani consular or visa office in Srinagar, Jammu and Leh. In diplomatic exchange, the Indian tricolour would have to fly over a recognised Indian consular or visa office in Muzaffarabad, Gilgit and Skardu.

Pakistan also may have to act equivalently with respect to the original inhabitants of the territory of Jammu & Kashmir that it has been controlling — allowing those people to become Indian nationals if they so chose to do in free private decisions under conditions of full information. In other words, the “Military Decision” that defines the present boundary between sovereign states must be recognised by Pakistan sincerely and permanently in a Treaty relationship with India — and all of Pakistan’s official and unofficial protégés like the Hurriyat and the “United Jehad Council” would have to do the same. Without such a sovereign commitment from the Government of Pakistan, as shown by decisive actions of lack of aggressive intent (e.g. as came to be implemented between the USA and USSR), the Government of India has no need to involve the Government of Pakistan in implementing the solution of enhancing free individual choice of nationality with regard to all persons on our side of the boundary.

The “Military Decision” regarding the sovereign boundary in Jammu & Kashmir will be so recognised by all only if it is the universally just outcome in international law. And that in fact is what it is.

The original Jammu & Kashmir State began its existence as an entity in international law long before the present Republics of India and Pakistan ever did. Pakistan commences as an entity on August 14 1947; India commences as an entity of international law with its signing of the Treaty of Versailles on June 20 1918. Jammu & Kashmir began as an entity on March 16 1846 — when the Treaty of Amritsar was signed between Gulab Singh Dogra and the British, one week after the Treaty of Lahore between the British and the defeated Sikh regency of the child Daleep Singh.

Liaquat Ali Khan and Zafrullah Khan both formally challenged on Pakistan’s behalf the legitimacy of Dogra rule in Jammu & Kashmir since the Treaty of Amritsar. The Pakistani Mission to the UN does so even today. The Pakistanis were following Sheikh Abdullah and Jawaharlal Nehru himself, who too had at one point challenged Dogra legitimacy in the past. But though the form of words of the Pakistan Government and the Nehru-Abdullah position were similar in their attacks on the Treaty of Amritsar, their underlying substantive reasons were as different as chalk from cheese. The Pakistanis attacked the Dogra dynasty for being Dogra — i.e. because they were Hindus and not Muslims governing a Muslim majority. Nehru and Abdullah denounced monarchic autocracy in favour of mass democracy, and so attacked the Dogra dynasty for being a dynasty. All were wrong to think the Treaty of Amritsar anything but a lawful treaty in international law.

Furthermore, in this sombre political game of great mortal consequence, there were also two other parties who were, or appeared to be, in favour of the dynasty: one because the dynasty was non-Muslim, the other, despite it being so. Non-Muslim minorities like many Hindus and Sikhs in the business and governmental classes, saw the Dogra dynasty as their protector against a feared communalist tyranny arising from the Sunni Muslim masses of Srinagar Valley, whom Abdullah’s rhetoric at Friday prayer-meetings had been inciting or at least awakening from slumber. At the same time, the communalists of the Muslim Conference who had broken away from Abdullah’s secular National Conference, sought political advantage over Abdullah by declaring themselves in favour of keeping the dynasty — even elevating it to become an international sovereign, thus flattering the already pretentious potentate that he would be called “His Majesty” instead of merely “His Highness”. The ancestry of today’s Hurriyat’s demands for an independent Jammu & Kashmir may be traced precisely to those May 21-22 1947 declarations of the Muslim Conference leader, Hamidullah Khan.

Into this game stumbled the British with all the mix of cunning, indifference, good will, impatience, arrogance and pomposity that marked their rule in India. At the behest of the so-called “Native Princes”, the 1929 Butler Commission had hinted that the relationship of “Indian India” to the British sovereign was conceptually different from that of “British India” to the British sovereign. This view was adopted in the Cabinet Mission’s 12 May 1946 Memorandum which in turn came to be applied by Attlee and Mountbatten in their unseemly rush to “Divide and Quit” India in the summer of 1947.

It created the pure legal illusion that there was such a thing as “Lapse of Paramountcy” at which Jammu & Kashmir or any other “Native State” of “Indian India” could conceivably, even for a moment, become a sovereign enjoying the comity of nations — contradicting Britain’s own position that only two Dominions, India and Pakistan, could ever be members of the British Commonwealth and hence members of the newly created UN. British pusillanimity towards Jammu & Kashmir’s Ruler had even extended to making him a nominal member of Churchill’s War Cabinet because he had sent troops to fight in Burma. But the legal illusion had come about because of a catastrophic misunderstanding on the part of the British of their own constitutional law.

The only legal scholar who saw this was B R Ambedkar in a lonely and brilliant technical analysis released to the press on June 17 1947. No “Lapse of Paramountcy” over the “Native Princes” of Indian India could occur in constitutional law. Paramountcy over Indian India would be automatically inherited by the successor state of British India at the Transfer of Power. That successor state was the new British Dominion of India as well as (when it came to be finalised by Partition from India) the new British Dominion of Pakistan (Postscript: the deleted words represent a mistake made in the original paper, corrected in “Law, Justice & J&K” in view of the fact the UN  in 1947 deemed  India alone the successor state of British India and Pakistan a new state in the world system). A former “Native Prince” could only choose to which Dominion he would go. No other alternative existed even for a single logical moment. Because the British had catastrophically failed to comprehend this aspect of their own constitutional law, they created a legal vacuum whereby between August 15 and October 22-26 1947, Jammu & Kashmir became a local and temporary sovereign recognised only by the Dominion of Pakistan (until October 22) and the Dominion of India (until October 26). But it was not a globally recognised sovereign and was never going to be such in international law. This was further proved by Attlee refusing to answer the J&K Prime Minister’s October 18 1947 telegram.

All ambiguity came to end with the Pakistani attack of October 22 1947, the Rape of Baramulla, the secession of an “Azad Kashmir”declared by Sardar Ibrahim, and the Pakistani coup détat in Gilgit on October 31 1947 followed by the massacre of Sikh soldiers of the J&K Army at Bunji. With those Pakistani actions, Gulab Singh’s Jammu & Kashmir State, founded on March 16 1846 by the Treaty of Amritsar, ceased to logically exist as an entity in international law and fell into a state of ownerless anarchy. The conflict between Ibrahim’s Muslim communalists backed by the new Dominion of Pakistan and Abdullah’s secularists backed by the new Dominion of India had become a civil war within a larger intra-Commonwealth war that itself was almost a civil war between forces of the same military.

Jammu & Kashmir territory had become ownerless. The Roman Law which is at the root of all municipal and international law in the world today would declare that in the ownership of such an ownerless entity, a “Military Decision” was indeed the just outcome. Sovereignty over the land, waters, forests and other actual and potential resources of the erstwhile State of Jammu & Kashmir has become divided by “Military Decision” between the modern Republics of India and Pakistan. By the proposal made herein, the people and their descendants shall have chosen their nationality and their domicile freely across the sovereign boundary that has come to result.

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The High Court of Kerala

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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The Ganges River Delta

News Post: India’s National River Linking Project

On February 27, India’s Supreme Court ordered the implementation of the country’s ambitious National River Linking Project “in a time-bound manner.”  The impetus of the project – originally commissioned in 1982 – was to improve management of water resources.  It aims to link 30 major rivers, and will involve diverting the Ganges and the Brahmaputra rivers.  India claims the project will “enhance its irrigation potential” to meet demand for grain from a population “estimated to reach 1.5 billion by 2050.” The project would accomplish this goal by allowing storage and transfer of water between India’s arid states and those with a water surplus.

The Ganges River Delta

Neighboring states and environmental organizations have opposed the project since it was formally introduced in 2002.  One concern is that the large-scale diversion could cause ecological disaster.  Bangladesh, India’s downstream neighbor, is particularly vulnerable.  The nation’s agricultural and environmental interests depend upon a healthy Ganges and Brahmaputra watercourse.

India assured Bangladesh– once in 2005, again in 2006, and most recently in 2010 – that they would make no unilateral decisions on the project’s implementation.  However, India is in the process of building 700 dams, many of which would facilitate the River Linking Project.  Moreover, many of these dams affect river flow into Bangladesh.   This suggests the table is already set for implementation of the project.  The Supreme Court’s order merely clears a path.

It appears India intends to implement the National River Linking Project regardless of concerns from neighboring states.  However, because the project would affect trans-boundary watercourses, a question remains as to whether its implementation violates customary international law.  For instance, if India is affecting Bangladesh’s equitable and reasonable apportionment of the Brahmaputra or Ganges rivers, the project may be precluded by the equitable and reasonable use doctrine.  Moreover, if India is causing significant harm to Bangladesh’s reasonable and equitable use of the rivers, the project may be in violation of the no significant harm doctrine.  Alternatively, while not yet recognized as customary international law, there is movement toward requiring countries to protect international watercourses and their ecosystems through due diligence.  While currently only soft law, this obligation could be persuasive in determining what steps the international community might have to take if the National River Linking Project moves forward and Bangladesh cries foul.

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The Enrica Lexie

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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Boeing 787 Dreamliner

News Post: Int’l Spat in the Airline Industry

At the end of 2011 the largest airline interest group in the United States, Airlines for America (A4A), formerly known as the Air Transport Association (ATA), sued the U.S. Export-Import Bank (Ex-Im) over an agreement to guarantee $3.4 billion in loans for Air India.  The loan guarantee supports the sale of 30 Boeing Aircraft to Air India, including 27 new Boeing 787 Dreamliners.  While the A4A premised the lawsuit on the grounds that in granting the guarantee Ex-Im violated administrative procedure, some experts believe the move is merely political posturing.  The A4A is trying to take advantage of the current unpopularity of government policies and can be perceived as “corporate welfare” in hopes of tax dollars being kept at home and spent to support the airline industry.

The A4A claims that by acting as guarantor on these loans U.S. government is subsidizing foreign airlines, putting U.S.-based carriers at a competitive disadvantage.  Specifically, the A4A members contend that they are unable to access comparable financing terms, and thus pay more when purchasing the same airplanes.  The A4A further argues that these loan guarantees have caused U.S.-based carriers to lose significant market-share to foreign competitors.  The A4A continues to assert that the involvement of the Ex-Im Bank in aircraft financing shows that the U.S. is more concerned with the success of their largest aircraft manufacturer, Boeing, than they are of the health of the airline industry.

This lawsuit is the newest move by the A4A in their quest to dismantle the use Ex-Im financing for the export of airplanes.  The A4A advanced the same arguments during the negotiation among members of the Organisation for Economic Cooperation and Development (OECD) of the 2010 Aircraft Sector Understanding regarding export credits.  The OECD members implemented a number of changes to appease the A4A, including doubling the interest rates of export credit -backed loans.  Yet, apparently, these changes were not sufficient in the eyes of the A4A.

While it is certainly true that U.S.-based carriers have been suffering in recent years, it is difficult to calculate how much of their woes are traceable to the U.S. government providing ECA support to foreign airlines.  It is important to understand that U.S. is not the only government providing export credit support for its domestic aircraft manufacturers.  Boeing’s competitors – Airbus of the EU, Embraer of Brazil, and Bombardier of Canada – all receive similar support from their governments.  In fact, these foreign governments provide a much greater volume of export credit support for their exports than the U.S. government.  In reality, the complaints of the A4A are more traceable to the fact that U.S.-based carriers are not eligible to receive export credit support due to limitations imposed by the Aircraft Sector Understanding agreement.

Boeing 787 Dreamliner

Winning this lawsuit will not provide any direct benefit to the U.S. airlines – they will not become privy to improved financing terms through export credit support.  At most, a victory will deprive some of the U.S. airline’s competitors from accessing export credit support.  It will also prevent airlines in nations with questionable credit ratings from securing export credit support and hamper the ability of Boeing to compete in the international marketplace. This lawsuit will not stop Airbus, Embraer, and Bombardier from receiving export credit support from their governments.  If Boeing is prevented from making this sale, Air India would likely turn to Airbus to fulfill its needs taking advantage of export credit support from the EU.  Air India would not be flying Boeing airplanes, but the U.S. carriers would be no better off.

Recent developments indicate that the A4A’s attempt to gain political and popular support may be in trouble.  Recently, President Obama met with the President and CEO of Boeing, Mr. James McNerney, and the CEO of Commercial Airplanes, Mr. Jim Albaugh, and pledged his support for the continued use of Ex-Im guarantees to support the export of Boeing aircraft.  Moreover, many major U.S. airlines and A4A members have declined to become party to the lawsuit, including United Air Lines Inc., Continental Airlines Inc., American Airlines Inc., Atlas Air Inc., Federal Express Corp. and United Parcel Service Inc.  While the specific reasons for the absence of these major airlines has not yet been released publicly, it may be that these airlines believe weakening Boeing will have a negative impact on the U.S. aviation industry and the U.S. economy as a whole.


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The Enrica Lexie

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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University of Denver Sturm College of Law