Choppy waters: On the Italian marines decision

Exercise of foreign criminal jurisdiction over state officials — as India attempted to do so — is successful in very few cases, and depends on the consent of the other state for it to proceed. Without such consent, attempts to exercise jurisdiction can worsen relations.

Enrica Lexie, Italian navy, maritime law, memorandum of understanding, functional immunity, International Law Commission, sovereign immunity, warships, Italian Ministry of Defence, St. Antony, fiscal laws, immigration laws, sanitary laws, contiguous zone, incident of navigation, Italian marines, International Court of Justice, concurrent jurisdiction, political questions, legal questions, foreign criminal jurisdiction, political fallout, diplomatic fallout, Italy, New Delhi, India, diplomatic strategy

The Enrica Lexie in Fal bay. Image © John D. Durrant/Flickr

The Enrica Lexie case — involving the fatal shooting of two Indian fishermen by two Italian marines — appears to have come to a close. This incident not only raised tough questions for maritime law, but also resulted in political and diplomatic confrontation between India and Italy. Upon Rome’s request in 2015, the dispute was brought before an international tribunal constituted under the 1982 UN Convention for the Law of the Sea (UNCLOS), which released its final award (or decision) on 2 July 2020.

The tribunal said that though both countries have concurrent jurisdiction over the case, India must immediately cease the exercise of its criminal jurisdiction since the marines are entitled to immunity. The award also holds that Italy interfered with India’s freedom of navigation and must pay compensation for “physical harm, material damage to property and moral harm” caused to the captain and crew members of the fishing vessel. New Delhi, in a recent statement, has said that it will abide by the award.

The Italian side argues that the marines sensed that St. Antony constituted a pirate attack, thus compelling them to respond with firearms. The Indian side refutes this and says that the crew aboard St. Antony was simply exercising its sovereign fishing rights in the Arabian Sea.

The dispute is a complex one, and raises legal questions that have seldom been raised before. The incident took place on 15 February 2012, 20.5 nautical miles (nm) off the coast of Kerala. Two marines — Sergeant Latorre and Sergeant Girone — aboard a commercial Italian oil tanker, MV Enrica Lexie, shot and killed two Indian nationals, Valentine Jelastine and Ajeesh Pink, on an Indian fishing vessel (St. Antony). The Italian side argues that the marines sensed that St. Antony constituted a pirate attack, thus compelling them to respond with firearms. The Indian side refutes this and says that the crew aboard St. Antony was simply exercising its sovereign fishing rights in the Arabian Sea (extending up to 200 nm from the shore). Criminal proceedings against the marines first began in India in 2012, until the international arbitral tribunal was seized of the matter in 2015.

Two contentious legal questions were raised in this case: the first is whether the marines were entitled to immunity for their acts, and the second, whether India could exercise its criminal jurisdiction, when the incident took place beyond its territorial waters.

Immunity for state officials

International law confers immunity to state officials for acts performed in official capacity (known as ‘functional immunity’). Italy argued that the marines were entitled to functional immunity; they were members of the Italian navy and part of a Vessel Protection Detachment (VPD) deployed according to government directives (Law No. 130/2011) and international commitments to protect the vessel from piracy. The mechanism for VPDs was operationalised through a memorandum of understanding (MoU) between the Italian Ministry of Defence and the Italian ship-owners association. The MoU specifically defines VPD as “a military unit composed of military personnel, preferentially from the Navy, embarked on trading vessels.” The military personnel on VPD duty must comply with rules of engagement and guidelines issued by the Italian Ministry of Defence.

At this stage, the connection of Vessel Protection Detachment to the Italian state is fairly straightforward: they are members of the Italian Navy, were deployed according to government laws, and functioned under a framework of rules established by the Italian Ministry of Defence.

International Law Commission reports (here and here) on functional immunity identifies criteria for who are “officials”: that the official should have connection with the state (constitutional, statutory or contractual); the official acts internationally as a representative of the State; and that the official exercises elements of governmental authority, acting on behalf of the State. At this stage, the connection of VPD to the Italian state is fairly straightforward: they are members of the Italian Navy, were deployed according to government laws, and functioned under a framework of rules established by the Italian Ministry of Defence.

Elsewhere, it has been argued (here and here) that UNCLOS has its own provisions for sovereign immunity, which only extends it to warships, naval auxiliary and other vessels owned and operated by the state. Since there is no provision for immunity for state officials here, the same cannot and should not be given to the marines. However, nothing in the convention suggests the exclusion of customary rules of international law — such as sovereign immunity for officials — in matters of law of the sea. What this does indicate is that there is a need for greater clarity on the application of multiple legal frameworks to complex cases.

Another counter-argument is that Italian ship owners who placed VPDs on their vessels had to cover costs for such an attachment. This creates a clear financial link between the VPDs and ship owners, raising questions if they indeed performed ‘government’ functions or ‘commercial’ ones. However, it is unclear if this is sufficient to erase the sovereign nature of their duties and sever their ties from the state. Further, Italy’s laws also draw a distinction between VPDs and private armed security guards, where the latter — who are not military personnel and operate entirely on private payroll — would not be entitled to immunity.

Nothing in the convention suggests the exclusion of customary rules of international law — such as sovereign immunity for officials — in matters of law of the sea.

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