Volume 1, Issue 1

VOLUME 1, ISSUE 1 A Shroud of Clouds: ‘The Enrica Lexie Case’ By Medha Priya “The unchartered legal water, a blind suspicion and dual murders is all what registered a case.” – Republic of Italy vs Union of India Introduction The case presides on the incident of February 15, 2012 when two Indian fishermen were killed off the coast of Kerala, India, on board the St. Antony after they were fired upon by Italian marines on board the Italian ship Enrica Lexie. Enrica Lexie was en route from Singapore to Egypt and St. Anthony returning back to its destination from a fishing expedition. According to a report, out of nowhere the Italian marines started shooting when St. Anthony was 20.5 Nautical Miles off Indian Cost within the contiguous zone area of India’s Exclusive Economic Zone. The Indian Coast Guard seized Enrica Lexie somewhere near the Lakshadweep Islands and it to proceed it to Kochi. The names of two captured Italian Marine officers were– Massimiliano Latorre & Salvatore Girone. After three years, Italy approached the International Tribunal for Law of the Sea (ITLOS) to seek for two Italian marines to stay in their own country during the trial process and also to India from going ahead with its criminal prosecution. At that time, India had set up a specially designated court, as ordered by Indian Supreme Court, to determine the applicability of jurisdiction. India’s National Investigation Agency had already slapped charges against the two Italians under sections of the Indian Penal Code, related to murder, attempt to murder, mischief and common intent. The ITLOS judgement of 2015 called on Italy and India to suspend all domestic prosecutions arising from the Enrica Lexie case. It had also ordered not to initiate any steps that might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may provide. The matter led to a long freeze in diplomatic relations between India and Italy, which were reset only in 2016. Charges of murder (Section 300 of the Indian Penal Code), mischief (Section 425 of the Indian Penal Code) etc. were framed against the captured Italian Mariners. Italy then approached the International Tribunal for the Law of Seas (ITLOS) in 2015 which was finally taken by the Permanent Court of Arbitration in July 2019 the decision of which was announced in favor of Italy in July 2020. The Jurisdiction Hullabaloo To preserve the interest of their citizen, Italy differed from the arrest before the Kerala High Court alleging that India cannot exercise any jurisdiction to try the case as the incident happened not in territorial waters on India but on the International Waters. The ground fact on which the whole Enrica Lexie case is centred relates to the prescriptive and enforcement jurisdiction of both India and Italy over the two marines. Italy claims its extraterritorial jurisdiction based on the EFSJ (European Federation of Science journalism). India, on the other hand, argues that it has jurisdiction by virtue of the passive personality principle, the protective principle and the effects doctrine. This section utilizes the previously analyzed rules of international law regulating state jurisdiction over the seas and applies them to the concrete Enrica Lexie case, thus defining how the interpretation of the relevant provisions is not as simple as it might prima facie seem to be. In fact, even seven years after the initial event, the dispute between India and Italy seems far from being settled. This invited several aspects regarding jurisdiction that lured diplomats and legal scholars. The main issue of the Enrica Lexie concerns the jurisdiction over the trial of the two Italian marines. To frame the case within the relevant provisions of international law, it is foremost to assess where the event actually took place since, as it has been explained, the rules on jurisdiction vary depending on the zone of the seas where the crime was committed. In fact, this is perhaps the only element on which the two States seem to agree, since both parties recognize that the incident happened ‘at a distance of about 20.5 nautical miles from the Indian sea coast off the State of Kerala. Hence, though the incident occurred outside Indian territorial waters, but within Indian contiguous zone and EEZ. Italy has deduced Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS): “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings. As for a flag state, it is the state in which a vessel is registered. On the high seas, flag states hold sole jurisdiction over oceangoing vessels. (Article 217 UNCLOS) Nevertheless, India justifies its jurisdictional claims on domestic legislation which confers the Indian courts with the jurisdiction to try a person (including a foreigner) in respect of an offence committed on board a ship registered in India (Sections 3 and 4 of the Indian Penal Code, 1860 and Section 188 of the Code of Criminal Procedure).In May 2012, Kerala State Police filed charges against the marines under section 302, 307 and 437, read with Section 34 of the Indian Penal Code (IPC) and Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (SUA) proceedings against the marines under Italian law. On the other hand, the Italian Government gives the argument keeping in mind various provisions of UNCLOS, 1982. Article 97 of UNCLOS focuses on ‘Penal jurisdiction in matters of collision or any other incident of navigation’. According to this Article no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag state or of the State of which such person is a national. Secondly, according to Article 92, ships shall be subject to the exclusive jurisdiction of flag state while on the high seas. The general principle of criminal procedure that a trial shall ordinarily be conducted at the place where the offence has been committed, justifies the Indian position. , a trial conducted in a foreign land would deprive the victims of their right to participate which is an essential aspect of fair trial. The PCA found that the Italian vessel had violated the rights and freedom of navigation of the Indian fishing vessel under UNCLOS. The PCA has also found that the action, which caused loss of lives, property and harm, merited compensation. It asked the parties to consult each other on the compensation due to India as a result. The detailed reasoning of the PCA for its decisions is not yet available, as only the advance award has been announced at this time. The key findings are as follows: 1. The tribunal unanimously rejected all of Italy’s claims that India violated the UNCLOS in detaining the Enrica Lexie, and that they hadn’t cooperated in dealing with piracy, in a big win for India. 2. The tribunal held by a 3:2 majority that the marines were entitled to immunity when it came to criminal proceedings in India, because of their status as military officers. However, while this is a disappointment for the Indian case, the PCA also took note of Italy’s commitment, expressed during the proceedings, to resume its own criminal investigation into the incident, which means that India has some leverage to ensure justice is served in the Italian court system, if not ours. 3. While the tribunal held that Italy had not violated India’s rights to sovereignty in respect of the incident, they held the attack on St. Antony was a violation of India’s rights to freedom of navigation under Articles 87 and 90 of the UNCLOS. It is for this reason that India is entitled to compensation – the nature of the harm caused means it cannot be addressed by mere restitution. 4. If India and Italy are unable to agree on the compensation to be paid, then the quantification of the compensation amount can be taken up by the PCA. Judgements in Favor of India: 1. The tribunal held that the actions of the Italian military officers breached India’s freedom of navigation under UNCLOS Article 87(1)(a) and 90. 2. The tribunal also held that India is entitled for payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by captain and crew of ‘St Antony’, the Indian vessel. Judgements in Favor of Italy: 1. India had called on the Permanent Court of Arbitration (PCA) UNCLOS tribunal to adjudge and declare that PCA has no jurisdiction with respect to the case submitted to it by Italy. However, a majority of the court’s five- member bench ruled 4-1 that it had jurisdiction in the matter. 2. Italian position that the marines, being members of the Italian armed forces in the official exercise cannot be tried by Indian courts, was held and immunity was granted to Italian marine officials. Basis of the Judgement: 1. The tribunal observed that India and Italy held a concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines. 2. However, it also maintained that the immunities enjoyed by the marines as State officials operate as an exception to the jurisdiction of the Indian courts and, thereby, preclude them to judge the marines Was the incident providently an international issue at par? The circumstances indicate that there was no attempt at piracy by the fishing vessel. The fishing ship was within India’s Contiguous Zone.

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