Posted on 22 February 2012.
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.