Tag Archive | "Italy"

Photo Credit: Judith Hartmann

Legalization of soft-drugs: views from the U.S. and Italy

Photo Credit: Judith Hartmann

Photo Credit: Judith Hartmann

On June 14, 2017, legal experts from the US and Italy gathered at the Law School of the University of Naples “Federico II” to discuss the challenges and perspectives of soft-drugs legalization, in the context of the inaugural colloquium of the international convention set up between the nearly 800-year old Italian law school and Denver University Sturm College of Law.

The European Drug Report 2017, published just a few days before the colloquium by the European Monitoring Centre for Drugs and Drug Addiction, an agency of the European Union tasked with monitoring the supply, marketing, and usage of drugs in Europe, revealed that cannabis is the most widely consumed type of drug in the Old Continent, with as many as one out of five young adults (15-34 years) making use of it over the last twelve months in certain European countries such as Czech Republic, Italy, Spain, and France.

Although the Report confirmed that the health problems associated with cannabis use are significantly lower than those associated with other drugs, cannabis remains the most commonly seized drug in Europe, accounting for over 70 % of seizures and for 57 % of both supply and possession criminal convictions. Following recent changes in the regulatory framework for cannabis in certain parts of the Americas, a lively debate on the legalization of soft-drugs has sparked off in several EU Member States, whose cannabis policies currently range from restrictive models to the tolerance of some forms of personal use.

In this connection,010-150 dumps Professor Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, provided a detailed examination of the legal status of soft-drugs in the US, where an increasing number of states have legalized marijuana for medical and recreational use, whereas federal law still criminalizes the production, sale, and possession of that substance, in keeping with the international commitments undertaken in the UN framework.

Professor Kamin, who served on Governor John Hickenlooper’s Task Force to Implement Amendment 64 and the ACLU of California’s blue ribbon panel to study marijuana legalization, described the legal status of marijuana in the US as “untenable” and emphasized the uncertainty it gives rise to for firms and users in relation to aspects of federal law ranging from banking regulations to federal benefits. Professor Kamin also expressed the wish that the US would draw inspiration from other countries, such as Uruguay and Canada, which embraced soft-drugs legalization in a more consistent and principled manner.

In this connection,NS0-505 dumps Judge Massimo Perrotti, sitting on the Sixth Criminal Chamber of the Naples Court of Appeal, described the legal status of marijuana under Italian law, swinging from a soft-prohibition model (the Iervolino-Vassalli Law of 1990) to a stricter one (the Fini-Giovanardi Law of 2006, which placed soft and hard drugs on equal footing) and then back to lenient criminalization, as in 2014 the Constitutional Court struck down the Fini-Giovanardi law causing the previous law on controlled substances to come back into force.

Judge Perrotti, who previously served as advisor on legislative affairs to the Italian Ministry of Justice, then examined the challenges that patients face in securing access to marijuana for medical use and the various soft-drugs legalization proposals currently being examined by the Italian lawmakers, notably the Giachetti Bill, which seeks to decriminalize home cultivation up to 5 plants per person and personal possession up to 5 grams (about 0,17 ounces) and to set up a State monopoly for the production and sale of certified-quality cannabis products for recreational use.

In this respect, it is noteworthy that, unlike US federal law, EU Law strongly defers to its Member States‘ marijuana policies. Framework Decision 2004/757/JHA, in particular, only requires EU Member States to criminalize cultivation of cannabis “when committed without right”; also, that item of EU legislation expressly excludes from its scope cultivation for “personal consumption as defined by [Member States’] law”, yet it points out that such a carve-out “does not constitute a Council guideline on how Member States should deal with” the issue. Moreover, in Josemans, the European Court of Justice took the view that combating drug tourism constitutes a legitimate interest enabling Member States to impose restrictions on free movement within the EU internal market, thus upholding the legality of Netherlands municipal rules banning non-residents from coffee-shops where the sale of soft-drugs is tolerated.

In addition to law school students from the University of Naples “Federico II” and the University of Denver’s Study Abroad Program directed by Professor Celia Taylor, several attorneys, academics, and advocacy groups attended the colloquium, which received the patronage of the US-Italy Fulbright Commission, a binational entity funded by the US Department of State and the Italian Ministry of Foreign Affairs.

Amedeo Arena is an Associate Professor of European Union Law at the University of Naples “Federico II” School of Law, where he serves as Coordinator of the academic cooperation agreement with Denver University Sturm College of Law

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Critical Analysis: Retrial begins in Italian murder case; defendants do not appear in court

The retrial of American Amanda Knox and her Italian ex-boyfriend Raffaele Sollecito began in Florence, Italy on Monday, Sept. 30, 2013, and continued on Friday, Oct. 4, 2013. Knox and Sollecito were convicted in 2009 for the murder of Knox’s roommate Meredith Kercher; their conviction was overturned in 2011. The Italian Supreme Court overturned this acquittal in March and ordered a retrial.

Prosecutors allege that Kercher was killed in a twisted sex game gone wrong. Neither defendant appeared in court in the first week of the retrial. If Knox is re-convicted, she will be ordered to return to Italy. If she refuses to return, it is unclear if the U.S. government would comply with a request for extradition.

Amanda Knox will not return to Italy for the retrial of Kercher's murder.  Source: MediaPunch/Rex Features

Amanda Knox will not return to Italy for the retrial of Kercher’s murder.
Source: MediaPunch/Rex Features

The Italian court ordered the retrial under the belief that the jury that acquitted the pair in 2011 did not consider all the evidence. On Monday, the judge ordered a critical piece of evidence, the knife that prosecutors allege was used to kill Kercher, be retested for DNA. However, the court rejected requests for other DNA tests the defense asked for, including a stain on a pillow that Kercher’s body was found lying on top of, Kercher’s cellphones, and Sollecito’s computer.

The judge did allow Lucia Aviello, (formerly called Luciano but is undergoing a sex change) who spent time in jail with Sollecito, to testify that it was her brother, and not Sollecito or Knox, who killed Kercher. Aviello testified her brother is now dead, but that he took part in a burglary for artwork at the house shared by Kercher and Knox, and that the brother stabbed Kercher when she started screaming. Aviello originally testified to this account but recanted in 2011 after claims surfaced that Aviello was offered cash by one of Sollecito’s lawyer to tell the story. Sollecito’s father denies that he or his son’s lawyer paid off Aviello for the testimony. Aviello is a convicted member of the Neapolitan mafia. In the past, Aviello claimed her brother gave her the murder weapon to hide. Because police believe that Aviello lacks credibility, they have not made a search where Aviello claims the knife is buried.

The Supreme Court also wants to consider the motive of Knox’s false confession that her boss, Patrick Lamumba, was in Kercher’s bedroom the night of her murder. While the confession was thrown out, it has remained as evidence in the case because of the Italian court system, which combines civil and criminal cases. If the trial was limited to criminal issues, prosecutors would not be able to use the confession since police had violated Knox’s rights during the confession. Lamumba has filed several civil cases for libel against Knox, and the judge ruled Monday that Lamumba could be a witness as a civil party in the retrial.

A verdict on this appeal is expected before the end of the year. The Court now takes more than a month break, with the next hearing scheduled on November 6, 2013.

Caroline Marfitano 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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Women in Italy

Critical Analysis: Italy Responding to Domestic Abuse

Earlier this month Italian Prime Minister Enrico Letta announced new harsh measures to respond to the persistent problem of domestic violence.  He calls this problem “femicide” which is the “killing of women because they are women, often at the hands of current or former husbands or boyfriends.”  The new measures, which are effective immediately, set stricter penalties for perpetrators of these types of crimes and expands the protection for women.  Prime Minister Letta said that the 12-point decree was “a sign of radical change on the issue” and he felt it was necessary to send a strong signal of change through the country.

Women in Italy

A rise in acid attacks prompted demonstrations in Italy (Antonio Calanni/AP)

Recently, Italy has been making headlines regarding violence against women, primarily women who are murdered or attacked by current or past significant others.  The United Nations has flagged this as a problem in Italy where gender stereotypes are deeply rooted and a third of all women face sexual or physical abuse in their lifetimes.  Last year, the United Nations special rapporteur on violence against women, Rashida Manjoo, said that Italy’s laws were fragmented, provided inadequate sanctions, lacked aid for victims, and that trials took too long and then failed due to Italy’s statute of limitations.  Manjoo wrote that,  “These factors contribute to the silencing and invisibility surrounding violence against women, its causes and consequences.

Various reports by European agencies and the United Nations underscore the failure of Italy to protect women from their current and past partners.  There are few shelters for battered women to go.  The Council of Europe advises that a country should have one shelter spot for women and children for every 10,000 residents.  By this standard Italy should have 5,700 shelter spots, but it has just 500.  Furthermore, Italian domestic abuse workers say that there is also a shortage in legal, medical, psychological, and financial assistance for battered women attempting to leave abusive relationships.

Earlier this month in Genoa, a man threw acid into the face of a woman.  Investigators suspect it was a crime of passion.  This is the fifth such attack in Italy this year.  In July, a 38 year-old waitress was shot in the chest by her husband when he was in a jealous rage.  In May, a 16-year old girl was stabbed 20 times in the chest by her boyfriend, he then fatally set her on fire.  In Italy between 2000 and 2012, more than 2,200 women have been murdered in similar circumstances.  Statistically, for over a decade a woman has been murdered by her lover every two days.

Prime Minister Letta’s new 12-point decree is a step in the right direction, though it will not help the 81 women killed since the beginning of 2013, 75 percent of which were committed by significant others.  While the new laws will not help these women, hopefully it will protect women going forward and work to uproot the deep seeded gender stereotypes in Italy.

Sarah Emery is a 3L and the Executive Editor for the Denver Journal of International Law and Policy.



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Amanda Knox was initially convicted of murder in 2009 in Perugia, Italy, following a highly publicized and sensationalized trial. (nydailynews.com)

Critical Analysis: Judge Overturns Acquittal in Amanda Knox Murder Trial

Amanda Knox was initially convicted of murder in 2009 in Perugia, Italy, following a highly publicized and sensationalized trial. (nydailynews.com)

Amanda Knox was initially convicted of murder in 2009 in Perugia, Italy, following a highly publicized and sensationalized trial. (nydailynews.com)

The Amanda Knox saga is far from over, as Italy’s highest court overturned a judgment of acquittal and has ordered a new trial. The initial conviction, which came in 2009 in Perugia, Italy, followed a highly publicized and sensationalized trial. After deliberating for 12 hours, a jury convicted  Knox and her boyfriend, Raffaele Sollecito, for murder of their English roomate, Meredith Kercher. In 2011, this conviction was overturned by an Italian appellate court in a decision that brought relief and prompted cheers from the American families present in the courtroom.

Seemingly exonerated of all charges and freed from her 26-year prison sentence, the then 24 year-old former University of Washington student returned to America. However, prosecutors appealed to the Italian Supreme Court and prevailed in March of this year when it overturned the acquittal. The initial trial headlined around the world, as an unlikely 22 year-old visiting American college student was accused of the 2007 brutal murder of her roommate. As the prosecution rested most of their case on circumstantial evidence, including very small amounts of DNA on the murder weapon and on a bra clasp, their case was further complicated with reports of the police’s mishandling of the material.

As Amanda Knox faces the reality of revisiting a nightmare that included 4 years of imprisonment in Italy, questions about her trial and guilt are raised, including why she acted so strangely at the police station following her roommate’s murder, and the unusual friendship between Knox and Kercher. Among the controversy is the release of her memoir, Waiting to Be Heard. She uses the memoir as an opportunity to defend herself and explain her reaction and behavior following the murder of Kercher, explaining that it was a very “confusing and terrifying situation” that resulted in unusual emotional responses. She also describes her promiscuous life as a student in Italy as well as the life she led with co-defendant and former boyfriend Sollecito. Knox also reveals that she wrote a letter to Kercher’s parents saying she did not kill their daughter, but did not send the letter upon advice from counsel. While capitalizing on her experience, as HarperCollins reportedly paid around $4 million for the book deal, Knox must still face the reality of a new trial.

Knox is admittedly afraid to return to Italy and believes there is an absolute lack of evidence and insufficient grounds supporting a conviction. She is still fighting critical comments regarding her apparent cold and insensitive reaction following Kercher’s murder. Still a student at the University of Washington, Knox will have to prepare for any potential outcome in a new trial.

Lydia Rice is 2L and a Candidacy Editor on the Denver Journal of International Law & Policy.

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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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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 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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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.

Posted in DJILP Online, Featured Articles, Jon BellishComments (9)

Photo courtesy of Quapan

News Post: European Debt Crisis Continues

Photo courtesy of Quapan

Photo courtesy of Quapan

The turmoil in Europe continued this week, with a new Greek government preparing to implement the European bailout plan, whilst a significant crisis unfolded in Italy.

The leaders of Greece’s two main political parties agreed Sunday to form a new government under novel leadership.  The agreement includes an explicit, time-limited mandate to implement the EU-IMF bailout plan before holding new elections and dissolving the former government. The next €8 billion, provided through the bailout package, will be distributed once the new government formally approves the implementation of the plan in writing.

On Monday, negotiations focused on the leading candidates for the renovated Greek government. Candidates included the former European Central Bank Vice President, Lucas Papademos (who is currently the front-runner), as well as the director of the International Monetary Fund and former finance minister, Panagiotis Roumeliotis.

Discussions about the nature and qualifications of the individuals who should serve in the interim government have caused delay in the execution of the negotiation; specifically, the debate is over the appointment of technocrats vs. politicians.  Papademos is demanding that politicians lead the government, while the opposition leader, Antonis Samaras, insists on technocrats serving in the temporary command of the country in an attempt, he claims, to avoid the risk of political calculations by the interim government ministers.

The distinction between politicians and technocrats is vitally important in the discussion of long-term, sustainable changes for Greece. According to a Reuters analysis, technocrats are seen by experts to have a relatively good record at pushing through reforms seen as tough but necessary” when there is a national consensus about what needs to be done. A technocratic led government will likely insulate the popular backlash by the tougher austerity measures required to implement the European bailouts. The problem in Greece, and throughout Europe, is the utter lack of consensus on the issue, as well as the nature of politicians to navigate and advance a dysfunctional political system during a campaign season.

Meanwhile, across the Adriatic in Italy, Europe’s third-largest economy, borrowing rates have reached a “euro-era high” as Prime Minister faced a no-confidence vote in the midst of a budget battle. The potential of an Italian economic collapse has lead smaller eurozone nations to express concern that Italy may be “too big to fail.”

The crisis occurring in both Italy and Greece highlight the fundamental issue that the structure of the eurozone requires weaker economies and political systems, like Italy and Greece, to compete on the same level with Europe’s economic powerhouses like Germany. So far, the eurozone nations have yet to address this larger, overarching issue; but, needless to say, it inexorably requires a superior strategy than the quick-fix solutions currently being discussed.

Posted in DJILP Online, DJILP StaffComments (0)

University of Denver Sturm College of Law