Internal politics in both India and Italy have led to questionable decisions that have vastly complicated an inherently difficult diplomatic case of the Italian marines accused of killing two Indian fishermen.

In choppy waters: Italian marines Massimiliano Latorre (R) and Salvatore Girone in file photo. afp

Vivek Katju
Former Secretary, Ministry of External AffairsItalian Prime Minister Paolo Gentiloni’s trip to India on October 3, the first in a decade at that level, is a significant step of the process to put India-Italy bilateral ties on an even keel after the strain of the marines issue drove them to breaking point. The matter has not been resolved, though neither side publicly raised it nor was it mentioned in the media briefings of External Affairs Minister Sushma Swaraj’s meetings with Italian leaders in Rome last year. The Arbitral Council which has been constituted under the Laws of the Seas at Italy’s behest is expected to give its judgment next year on its plea that India does not have jurisdiction to try the case. It is unlikely that domestic politics of either country will not intrude to pressure the government concerned even if it would wish to take it in its stride. The Congress had charged the Modi government with putting up a weak case before the council when it ruled last year that the marine in India be allowed to go to Italy under conditions to be set by the Supreme Court. Allegations were also made that Italy’s cooperation needed in the Augusta Westland case also contributed to the so-called soft way India pleaded the case.Indeed, internal politics in both countries has led to questionable decisions that vastly complicated an inherently difficult diplomatic matter. In Kerala, it raised popular sentiment which fed into government decision-making.

Case timeline

To recall the facts: On February 15, 2012, two marines, Massimiliano Latorre and Salvatore Girone, on an Italian oil tanker, MV Enrica Lexie, shot at St Antony, an Indian fishing boat, 20.5 nautical miles off the Kerala coast, causing the death of two Indian fishermen, Ajeesh Pinku and Jeslestine. After the incident, Enrica Lexie filed an incident claiming a piracy attempt and carried to sail ahead. St Antony proceeded to the Kochi port. The Indian authorities being apprised of the incident caught up with Enrica Lexie and it came to the port. After investigations, the two marines were arrested and charged with murder.The Italians protested the arrests. They claimed that as the incident had occurred in the contiguous zone and not in Indian territorial waters, the Indian courts had no jurisdiction and the case should be tried in Italian courts. They further implied that St Antony’s sailing pattern just prior to the firing led to an apprehension of a pirate attack. The Italian contention was rejected by the Kerala High Court, which held that the Indian courts had jurisdiction under Indian laws. The high court also did not accept that as the marines were Italian defence personnel they enjoyed immunity. It, however, allowed bail to the marines and allowed special quarters. Such consideration was shown to them later by the Supreme Court, too.The Italians appealed against the Kerala High Court’s views to the Supreme Court. Notwithstanding the unacceptable action of Enrica Lexie in sailing away despite its captain knowing that it was innocent and the hollowness of the claim of immunity, the main issue on which the whole matter turned was: did the Indian courts have jurisdiction to try the marines for murder in the contiguous zone? That the firing was unjustified and Lattore and Girone should be tried for murder is beyond doubt; but where? The compensation given by Italy to the families of the fishermen does not reduce the guilt.It would have been appropriate for the government to urge the Supreme Court which became seized of the matter to give a final decision on this basic issue. While doing so, it would have naturally argued that India did have jurisdiction. However, the court was not pressed to definitively determine the jurisdiction issue. Even after a Supreme Court ruling, the Italians could have approached the Law of Seas dispute resolution mechanism, as they finally did in 2015, but this could have hardly opened the government to charges of going soft on Italy. Clearly, the UPA’s primary objective was to prevent any adverse reflection of the Congress first family and not let diplomacy have full play.

SC ruling

The Supreme Court decision ruled that while Kerala state did not have jurisdiction, the Union did, and the case should be tried by a special trial court set up for the specific purpose. Significantly, the court allowed Italy to agitate the jurisdiction question before the trial court. No action was taken to set up the court and the Italians also adopted delaying tactics.The Home Ministry decided to hand over the case to the NIA and invoke the Suppression of Unlawful Activities Act. This implied that the marines would be tried as terrorists. This was simply untenable and naturally led to great bitterness in Italy. Eventually, the Act was dropped, and the Indian Penal Code provisions were relied upon.If domestic Indian politics muddied diplomatic waters, so did the Italian politics. Having put the marines as guards on commercial Italian vessels without the protection of any international instrument governing the actions of such personnel, the Italian authorities could not be seen to be abandoning them. Indeed, the pressure to get them back soonest and maintain their dignity led Italy to decide that they would not return to India, although the Italian Ambassador had personally assured the Supreme Court that they would. The court had allowed them to go to Italy to cast their votes. The unacceptable Italian action precipitated an unprecedented diplomatic crisis in which the court became involved. Ultimately, the Italians backed down but after the incident, the UPA had to reinforce its rigid approach. Nevertheless, Modi criticised the NDA’s handling of the case during the 2014 election campaign.

Jurisdiction a stumbling block

With the Modi government coming to power, the two countries engaged on ‘private’ and ‘public’ tracks to resolve the issue. Nothing came of these attempts for jurisdiction obviously was a stumbling block. Italy approached the Laws of the Seas International Tribunal (ITLOS) in December 2015, seeking that it denies India jurisdiction. It also sought a provisional order that the marine in India be allowed to return to Italy. The Supreme Court had already allowed one to go back for medical reasons. Both countries are currently filing their submissions and that process will be completed in February 2018 after which a date will be set for the hearing.This case will confront the Arbitral Council with difficulties as it will go into new territory. Some Indian legal experts feel that India has a good case in view of recent evolutions of international law and prevailing circumstances. It is difficult to predict how the issue will go at The Hague next year. Thus India-Italy ties will have to navigate a stretch of choppy waters and politics will again, no doubt, compel diplomacy to take a back seat, which way the decision may go.