The shooting of two Indian fishermen by guards of an Italian merchant vessel off the Kerala coast leads to a legal tussle between India and Italy.
Hazards on the high seas
By R. Krishnakumar
It was a coincidence that a leading international insurance company should announce the launch of a risk cover package aimed specifically at the emergent global maritime security industry on February 15, the very day two Indian fishermen, part of a 11-member crew on a small boat on a routine fishing expedition off the Kerala coast, were shot dead by marine guards on MV Enrica Lexie, an Italian oil tanker.
A press statement issued by the company in London said the new product was meant to provide risk coverage across five areas for firms working in maritime security: public liability, professional indemnity, maritime employers’ liability, personal accident, and “depending on the risk appetite of individual organisations” for “kidnap and ransom”, among some other heads.
Though unrelated, the two events, in their own different ways, revealed the perils involved in the use of armed security teams on board ships to combat rising instances of piracy in the seas.
According to a report by Reuters on April 23 quoting the International Maritime Bureau (IMB), vigorous action by navies of various nations (including India), deployment of private armed security guards in vessels and greater use of “pirate deterrents”, “heightened monitoring when entering danger areas by crews on board vessels”, and so on, have helped cut global pirate attacks by almost a third in the first quarter of 2012.
However, the report said that lured by tens of millions of dollars in ransom payments, pirates continued to threaten vital shipping lanes (especially in the Gulf of Aden, the Indian Ocean and, of late, the lane off the coast of Nigeria, and near Indonesia) and that “despite successful efforts to quell attacks, international naval forces have limited resources and vast distances to patrol”.
There were rare instances earlier when enhanced naval presence in the Gulf of Aden had led to piracy incidents spreading to India’s Exclusive Economic Zone (EEZ) on its western coast. But Indian Navy and Coast Guard officers have repeatedly said that firm vigil and action by them have curbed such isolated incidents effectively.
In any case, the Indian coast, including the coast off Kerala where the Enrica Lexie incident took place, had no history of piracy incidents that justified the shooting of the unsuspecting, unarmed men on board St. Antony, the ill-fated fishing vessel.
By the crew members’ accounts, they were merely seeking fresh fishing grounds on that fateful day when they were shot at by the marine guards in the oil tanker, allegedly under the mistaken impression that they were pirates.
There are several versions of the series of events that led to the guards opening fire at the fishermen, including the initial version of the Italians that they had followed proper procedure, such as firing warning shots, giving optical signals, and so on to ward off what they suspected was a pirate vessel with “armed men on board” approaching their ship.
J. Freddy, the owner and captain of St. Antony, told presspersons ( The Hindu, February 17) soon after he returned to the coast that the 11 men on his boat, including Valentine Jalastine (aged 45) and Ajesh Binki (aged 25), who were killed, had embarked on a 10-day fishing expedition on February 7. He said that since the catch had been meagre despite fishing until midday on February 15 about 14 nautical miles off the Alappuzha coast, they decided to try their luck farther into the sea. Since that journey would take time, most of them, including Freddy, had decided to take rest and were sleeping when the shooting began. The only people awake on the boat then were killed – Valentine, at the steering wheel inside the cabin, and Binki, on watch at the bow.
ITALIAN marines Latore Massimiliano and Salvatore Girone being produced at the magistrate’s court in Kollam on March 16.
Freddy said that he woke up on hearing a noise and was shocked to see Valentine falling down from his seat with nose and ears bleeding. The rest of the crew were sleeping on the boat’s deck. He said he saw a red and black ship and someone from it showering bullets on their boat. Alarmed, he asked the others (who had woken up on hearing the commotion) to lie down. But by then another bullet had hit Binki in the chest. Freddy said he then took the wheel and steered his boat as far away from the ship as possible. Significantly, they were within range of their mobile telephone network and used their phones to inform a nearby fishing vessel of the tragedy, which then alerted the Coast Guard. Freddy also said that the ship from which they were fired upon had not been travelling on the regular shipping channel but “beyond the east of the channel”.
The facts of the case are likely to be revealed only when the details of the Kerala police’s inquiry into the incident are presented during the trial in the lower court in Kollam. Meanwhile, Enrica Lexie, seized by the State police, has not been allowed to leave Indian shores and lies anchored off the Cochin Port, pending permission to leave. Two Italian marines, Latore Massimiliano and Salvatore Girone, who were members on guard duty on board the vessel at the time of the incident, were arrested on February 19 on the charge of murder under Section 302 of the Indian Penal Code. At the time of writing, they were in judicial custody (until April 30) at the Central Jail in Thiruvananthapuram. Police authorities said the investigation was in its “final stages” with the identification of the weapons used for the assault on the fishermen, after a month-long ballistic examination of the weapons brought in from the ship. (The search and seizure of the weapons from the ship and the ballistic examination of the weapons used for the assault were undertaken in the presence of personnel from the Italian armed forces.)
The Italian authorities, who had been insisting that the marines could only be tried by an Italian court, had first moved the Kerala High Court seeking to quash the criminal case registered against the marines. They also filed a statement before the Kerala High Court that Italy had already initiated criminal proceedings against the marines under its law and that, upon conviction, they could get a prison term of not less than 21 years. The statement filed by the Italian authorities said, “A case was registered against Latorre Massimiliano and Salvatore Girone of the San Marco Regiment attached to the Military Protection Department in accordance with Article 575 of the Italian Penal Code in Rome.”
The Italian authorities maintain that the marines should be tried in Italy. But India has been insisting that they must face trial as per Indian law, in India itself.
Meanwhile, Dolphin Tanker Srl, the owners of Enrica Lexie, had approached the Supreme Court of India with a special leave petition (SLP) challenging an order of the Kerala High Court. The High Court order had set aside the permission granted earlier by a lower court for the ship to leave the Cochin Port (on furnishing a bond for Rs.3 crore and an undertaking that the vessel and its master and crew would be produced before the authorities as and when required).
The High Court had passed the order while allowing an appeal filed by a legal heir of one of the fishermen who had died, stating, among other things, that the relief sought could only be sanctioned by the magistrate’s court in Kollam, which was trying the case.
The SLP had sought the quashing of the order and an interim stay on its operation. Subsequently, the initial hearing on it became controversial when a law officer, Additional Solicitor General Harin Raval, reportedly raised arguments that seemed to support the Italian view that India did not have jurisdiction in the case.
With State Chief Minister Oommen Chandy – who had all along maintained that “the two soldiers of Italy had committed a crime within the purview of Indian laws and they will have to face trial in India” – questioning the statement of Raval, the latter was removed and the Union government announced that the Attorney General would instead represent it in the case.
However, on April 23, the legal heirs of the two fishermen killed in the incident, who had impleaded themselves in the case before the Kerala High Court, announced that they were withdrawing unconditionally all legal proceedings against the marines, following an agreement with the Italian government. Under the terms of the agreement reached with the knowledge of the High Court and the Lok Adalat, the Italian government was to pay a compensation of Rs.1 crore each to the two families.
The criminal case filed by the State police would, however, not be affected by this settlement, law officers said.
ITALIAN DEFENCE MINISTER Giampaolo Di Paola meeting Kerala Chief Minister Oommen Chandy to discuss the case, in Thiruvananthapuram on March 29.
Meanwhile, even as the Italian plea for the withdrawal of the police case was pending before the Kerala High Court, on April 20, the Italian government filed a writ petition under Section 302 of the Constitution before a three-member Constitution Bench of the Supreme Court seeking the same relief. This writ, seeking the quashing of the case filed by the Kerala Police against the two marines, has been posted for hearing on May 8 by the apex court. Its outcome is eagerly awaited, with both India and Italy raising what appears to be equally strong claims on who indeed has the jurisdiction to try the case.
The facts of the case complicate the matter: (1) The event reportedly occurred near or beyond India’s territorial sea (up to 12 nautical miles from the shore) where it enjoys sovereignty, or within the contiguous zone (area adjacent to the territorial sea between 12 nautical miles and 24 nautical miles) where the country, arguably, has control only over specified offences. (2) The shots were fired from an Italian vessel, but the victims were unarmed Indian fishermen on an Indian vessel near the Indian coast and on a routine fishing expedition within India’s EEZ. (3) The oil tanker is in Indian custody, and so are the two marines.
In short, among other things, the Italian argument was that the United Nations Convention on the Law of the Sea (which both countries have ratified) provides for the exclusive jurisdiction of the flag state over the ships that operate on the high seas, and this is a fundamental corollary of the principle of freedom of navigation and transit on the high seas.
Italy also argues that the two Italian Navy guards were acting in the performance of their duties to fight piracy and hence were eligible for sovereign immunity. It also argues that the event occurred on the high seas, beyond India’s territorial waters and jurisdiction.
The Indian argument generally revolves around the killing of two unarmed Indians on an Indian vessel. Contrary to the Italian position, the Indian government says the case is well within its jurisdiction because Indian citizens were killed in an Indian vessel. It contends that merely technical claims of the act being committed just beyond the country’s territorial waters will not submerge the legally valid claims (under the provisions of the Indian Penal Code) favouring justice for the Indian victims through Indian laws and courts.
Compounding the situation further, both India and Italy have extraterritorial jurisdiction concerning crimes upon or crimes by their citizens. Therefore, it is argued by both sides that in terms of their domestic laws, they have legitimate reasons to believe that they should be the investigating and, if necessary, the prosecuting authority.
The way in which India and Italy have been interpreting what can be described only as “overlapping jurisdiction” has created a very complex diplomatic situation, which has also compounded the element of nationalism that has been seen on both sides over the incident.
The progress of the case has generated much interest in the international maritime community – for this is the first case in which the widespread concerns that had been raised regarding the presence of armed guards in merchant vessels have been justified in a chilling manner.
THE WIFE AND son of Valentine Jalastine, one of the dead fishermen, with their lawyer at the Kerala High Court in Kochi on April 24 after receiving the compensation amount of Rs.1 crore from the Italian government.
Even though the Indian government also allowed, from last year, the deployment of armed guards on merchant vessels and issued guidelines for it, as in other countries, there were doubts expressed over several related issues that could arise as a result. These include: the presence of armed men on ships resulting in escalation of violence at sea; the possibility of infiltration of terrorists or other unlawful elements in such units; the possibility of injury to or death of innocent fishermen and seafarers and issues of liability for it; implications of military personnel (instead of private security guards) being dispatched for such work and the separate command structure they would work under on the high seas; and the implications of such ships passing through the territorial waters of coastal states and issues of armed guards from merchant vessels getting into and out of ports of call.
As the case of Enrica Lexie amply proves, putting gunmen on merchant ships (nearly 30,000 of them ply the world’s oceans) would bring with it its own concerns, especially if it cannot be ensured that they will act responsibly, follow internationally accepted rules of procedure, judge perceived threats correctly and resort to lethal action only after a scaled escalation of deterrent action.
Having armed military personnel on board (instead of private security guards) often also brings in an additional problem – of their chain of command not including the master of the ship who invariably knows the sea and its ways better than anyone else in it and would be the better judge when it comes to, for example, determining whether an advancing boat is full of armed pirates or clueless fishermen.
Jalastine and Binki have become the first known victims of irresponsible action by security units in merchant vessels, even though, in view of increasing instances of piracy on the high seas, such on-board defence units may also have become a necessary evil.
Long after the legal tangle over jurisdiction between the two countries is resolved, the Enrica Lexie incident is likely to be read as a cautionary tale – about the dangers involved in employing armed security personnel on board merchant vessels and the need for proper rules of engagement before the use of force on the high seas.
Source: Front Line