A long-fought legal and diplomatic melee between India and Italy over the jurisdiction of the Enrica Lexie incident came to a close recently.

On June 15, 2021, after almost a decade of national and international dispute process, the Supreme Court of India has decided to quash the pending criminal proceedings against two Italian marines, namely, Massimiliano Latorre and Salvatore Girone, who were charged with the murder of two Indian fishers in a shooting incident that occurred off the cost of Kerala in 2012.

The Supreme Court’s order came in the wake of the assurance made by Italy to conduct the criminal trial of their nationals before its domestic courts. More importantly, the decision grounded on Italy’s payment of compensation to the tune of Rs 100 million to be shared among the family of two victims and the owner of St Anthony, the fishing boat on which the alleged murder took place.

Although this order of the Supreme Court is of no surprise at this juncture, a comprehensive analysis of the whole case has reasons for a perfect nonplus. This piece aims to examine the atypical elements of the case to see how they are at odds with the Indian legal system and international adjudication.

When equity overrides law for the sake of justice

To terminate the criminal case against the marines, the court resorted to Article 142 of the constitution, which essentially supplies the Supreme Court with an extraordinary jurisdiction “to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” The jurisprudence relating to this provision shows the court’s predisposition to ‘settlement’ rather than ‘resolution’ of disputes.

From Union Carbide to Ayodhya, the rich case law exemplifies a strong linkage between judicial settlement and Article 142. While this constitutional provision is primarily used in the context of human rights and environment protection, the court had been settling cases even in commercial matters, including in the area of insolvency and bankruptcy, lately. In all such cases, a final determination of the rights of the disputing parties remains extremely difficult.

Similarly, India’s bone of contention in Enrica Lexie – retaining the jurisdiction over the marines – was legally impossible and politically intractable from the beginning. However, for reasons attributable to the apex court as well, an unnecessary delay in disposing of the matter led to a climax in which Article 142 turned out to be the safety valve. However, in pulling that safety valve, the court has apparently flouted a fundamental rule of the Indian criminal justice system against monetary compensation to bypass punishment.

Quashing an ordinary criminal case, even a murder case, may fall within the court’s equity jurisdiction. However, the thrusting of compensation in this case runs counter to the ethos of India’s criminal justice administration. Because it has an apparent resemblance with the practice of the payment of blood money or ‘Diya’, as it is called in Islamic legal systems, in which the heirs of the victim waive their right to demand the execution of the murderer in lieu of monetary compensation.

The Permanent Court of Arbitration (PCA) tribunal awarded this “compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of the St. Antony, which by its nature cannot be made good through restitution”.

Such a remedy is plausible for an arbitral tribunal formed under the United National Convention on the Law of the Sea (UNCLOS) to make. Further, the international obligation to comply with this arbitral decision may give credence to the invocation of Article 142. However, compensation for a murder case, howsoever benevolent it appears, undermines the concept of rendering’ complete justice’ as provided in the constitution.

Bargaining in the shadow of law

Like the relevance of equity over law in delivering justice, the Enrica Lexie case has more to do with diplomatic means of dispute settlement than judicial means. It is a long-established practice in international law where governments, through the exercise of diplomatic protection, espouse international legal claims on behalf of their nationals against a foreign government.

Right from the beginning, Italy argued to take the dispute process to any of the three forums prescribed under the UNCLOS – the International Court of Justice, the International Tribunal for Law of the Sea, and the UNCLOS Annex VII Arbitral Tribunal – as they rightly believed that the dispute pertains to the non-compliance of international law obligations as opposed to violations of domestic law.

However, the impressionistic view of the Supreme Court of India, perhaps based on the nationalistic fervour of the time, resulted in dragging the dispute on unnecessarily, at the cost of estranging the political relationship between both countries. Nevertheless, diplomacy had the last laugh. The denial on the part of the Indian government and the Supreme Court also meant a constant infraction of its constitutional scheme of ‘encouraging settlement of international disputes by arbitration’ as provided in Article 51.

Nonetheless, the Italian republic sought provisional measures from the Hamburg-based ITLOS. As remarked by the former ICJ President Judge Stephen Schwebel much earlier, it was indeed a primary step for Italy to utilise “the legal conclusions arrived by an international court in framing further negotiations and in achieving settlement of the dispute.” The moment ITLOS directed to suspend the criminal proceedings in India and refer the matter to the Hague-based PCA tribunal, this outcome was almost obvious.

Though the PCA tribunal accepted most of India’s counterclaims, the resultant award was a clear sign of Italy’s diplomatic success. However, the settlement could be possible only with a negotiated bargain for hefty compensation. As stated in the arbitral award, “parties are invited to consult with each other with a view to reaching agreement on the amount of compensation.”

Though the tribunal had the option of determining the quantum of compensation, if the parties wished so, both governments seemed to have chosen the diplomatic way. In the pursuit of settlement, it is easy to reckon that Italians had to make an offer that the Indian government could not refuse. No doubt, the politicisation of the dispute and the concomitant popular opinion have made such a bargain inevitable in the instant case.

Interestingly, Italy asked the Supreme Court to release marines at the beginning of the dispute and India replicated the same to end the dispute.

Nevertheless, Enrica Lexie can be portrayed as a win-win for both sides. By rendering complete justice, the Indian Supreme Court seems to have reinstated India’s respect towards the international rule of law, specifically, its commitment under Article 51 of the constitution. Whereas the Italian government could bring the ball back to its courts by employing a new variant of ‘gunboat diplomacy’ in which they succeeded, not through the show of naval power, but by recompensing for the acts done on a ‘gunboat’. We now have to wait and see whether the Italian judiciary would be as diligent as their diplomatic mission when considering the case on its merits.

This articles was first published in The Wire.in

Dr Harisankar K Sathyapalan
Dr Harisankar K Sathyapalan
Dr Harisankar K Sathyapalan is Research Fellow (International Law and Dispute Settlement) with the CPPR Centre for Comparative Studies. He is currently Assistant Professor at the School of Legal Studies, Cochin University of Science and Technology (CUSAT), India. He holds a PhD (Faculty of Law, National University of Singapore) and an LLM (Indian Law Institute, New Delhi). Hari’s research interests include transnational commercial law, conflict of laws and international dispute resolution.

Leave a Reply

Your email address will not be published. Required fields are marked *