By Harisankar K S*
The Enrica Lexie incident has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The following discussion tries to bring in certain important developments in the legal arena both domestic and international in the context of criminal jurisdiction on high seas, and the possible outcomes of the case.
The Shooting incident
The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident. The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.
The threshold question to be addressed is whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship?
According to Article 111 of the UNCLOS, the hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Furthermore it provides that, “If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established”. It is not disputed that the Italian ship was within the contiguous Zone when the shooting incident took place. However, since the hot pursuit principle in the contiguous zone is limited to the prevention of infringement of ‘customs, fiscal, immigration or sanitary laws’, the legitimacy of the action of the Indian authorities in the context of an alleged killing is questionable.
The cardinal question on which the whole case is centred is regarding the prescriptive jurisdiction of both India and Italy. It is undisputed that the cause of action arose beyond the territory of India and hence in the international waters. However, India bases 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 and Sec.188 of the Code of Criminal Procedure). As a matter of international law, the legality of the exercise of this extraterritorial jurisdiction may be justified by a number of principles, including: (a) the “objective” Territoriality principle; (b) the “effects doctrine;” (c) the protective principle; (d) the Nationality principle; (e) the passive personality principle and (f) Universality principle. The common element underlying all these theories is the valid interest of the State on the basis of a ‘sufficient connection’ to the persons, property or acts concerned. At least three of the above mentioned theories support the jurisdictional claims of India. The so called objective territoriality principle, the protective principle and the ‘effects’ doctrine as enunciated by PCIJ in the Lotus case favours Indian arguments.
On the other side, Italy relies on various provisions of the UNCLOS, 1982. First, under Article 97, which provides for the ‘Penal jurisdiction in matters of collision or any other incident of navigation’ 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. Nevertheless, it’s a matter of common sense that, this case is no way related to collision or ‘incidents of navigation’. Secondly, according to Article 92, ships shall be subject to the exclusive jurisdiction of flag state while on the high seas. In addition, the well established ‘Nationality Principle’ of International law allows the state to exercise the jurisdiction with respect to the activities of its nationals abroad, including natural persons as well as ships, which are considered to be floating territories of the state. Hence, Article 92 read with the Nationality principle strengthens the Jurisdictional claim of Italy.
Now, which State has the primary right to exercise its concurrent jurisdiction? Here, it may be pertinent to undertake an interest analysis. Of course, both nations have their own legitimate national interests over and above the family interest on both sides. But, considering the dimension of criminal law as serving the societal disapproval of the alleged act and punishment as an act of retribution, a trial conducted in India and punishment meted out in accordance with Indian law would better serve victim satisfaction. 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. Additionally, a trial conducted in a foreign land would deprive the victims of their right to participate which is an essential aspect of fair trial. Moreover, considering the convenience of conducting investigation the case is tilted towards India.
The Scooting incident
In response to the Italian contentions against the competence of the Courts in India, the High Court of Kerala had asserted the jurisdiction of the Indian Courts and later on allowed the marines to go home for Christmas under very stringent bail conditions including a hefty amount as guarantee. On an appeal contesting the jurisdiction, the Supreme Court of India in its decision on January 18 this year reaffirmed the Indian jurisdiction; however declared that the trial should be conducted by a special court in Delhi, not in the ordinary criminal courts in the state of Kerala. Later, on 22 February, the apex court allowed the marines to travel to Italy for casting their votes in the national elections, on the basis of an affidavit undertaking the responsibility of marines’ safe travel to Italy and return to India within a month. After the marines reached their home safely, the Italian foreign ministry through a note verbale informed the Govt. of India that their nationals would not be coming back and called upon India to resolve the issue through diplomatic means, as provided under UNCLOS. This development really complicated the matter. While the internal political pressure was mounting in India, the Supreme Court asked the Italian ambassador, on whose personal assurance the marines were permitted to go home, not to leave the country. The decision of the apex court has triggered a diplomatic standoff and the case was expected to go for an international adjudication. Surprisingly, as India was contemplating contempt proceedings against the Italian ambassador and further tough measures on bilateral ties, the Italian Govt. decided to send back their marines to India.
The Immunity conundrum
The Italian argument for the immunity from legal proceedings is twofold. First, Can the Italian marines claim that they are covered by Sovereign functional immunity, as they are naval guards employed on board the Italian ship and therefore functioning under the instructions of the sovereign Republic of Italy? Supreme Court, without any deliberation on this issue, rejected this plea in the absence of a status of force agreement between India and Italy. But, whether functional sovereign Immunity is available to military personnel involved in a criminal proceeding abroad remains an unsettled question.
Secondly, considering a situation where the marines were not sent back and the SC decides to go ahead with the contempt proceedings against the ambassador, whether the ambassador could claim diplomatic protection under the Vienna Convention? Article 32 of the convention provides for waiver from the diplomatic immunity which should be expressly stated by the sending state. India has been considered a follower of the dualist approach of International law and the parliament has incorporated the said international Convention into municipal law, by enacting The Diplomatic Relations (Vienna Convention) Act, 1972. The general opinion doing the rounds in Indian legal circles was that, since Italy has invoked the writ jurisdiction of the Supreme Court under the Constitution of India, it may be considered as a waiver, though not express. Keeping in perspective the power of the Supreme Court under Article 129 of the Constitution to punish for contempt of itself, the apex court seems to have had the legal weapons in its armour. In any case, this has become an issue of contemplation as the marines are back.
How the ball came back to Indian Court?
As a stunning reversal of its earlier position, Italian govt. decided to send the marines back to India to face trial, on an assurance given by the Govt. of India regarding the protection of their fundamental rights. I am curious about, what all ‘basic human rights’ that India offers to protect the Italian nationals in this situation. The Indian authorities have assured inter alia that the marines would not face death penalty. This offer seems less significant; firstly because there is little chance of this case falling under the category of ‘rarest of rare’, which is an established criterion for awarding a death sentence in India. Secondly, the existence of an agreement between India and Italy (which India ratified soon after the shooting incident) regarding the transfer of sentenced persons, will come for the rescue of the Italian marines. According to this pact, the execution of the sentence shall be governed by the administering state, which will be free under its laws to provide alternative measures and is inspired by the Strasbourg Convention. However, capital punishment is an exception to the same. Therefore, a sentence of death, if at all, given by the Indian court would have to be carried out in India itself. Though there is a possibility of an executive pardon, the undertaking given by the Indian Govt. lifting death penalty, which is the maximum punishment provided under Sec 302 of IPC, even before the trial starts is highly questionable. Another important proposal from the Indian side is on the amenities to be offered to the marines during the trial. The marines will reside at the Italian embassy in New Delhi during the pendency of prosecution, which would be an over-the-top concession available to any under trial in India. All the same, this unexpected development has eased the diplomatic and political tension and now it is for India to set up a special court immediately, as directed by the Supreme Court and conduct the trial in a just and speedy manner. The international legal community looks up to how the Indian legal system addresses the issues of jurisdiction and sovereign functional immunity in this judicial process.
* The Author is Assistant Professor of Law at National Law University Jodhpur and Fellow at Centre for Public Policy Research. The following piece is a reproduction of the article posted in The European Journal of International Law as per Author’s permission