On April 29, 2016, the arbitral tribunal constituted under Annex VII of the UN Convention on the Law of the Sea (UNCLOS) to consider the dispute between Italy and India over the “Enrica Lexie” incident issued an order on the Italian application for provisional measures of relief for its two marines facing murder charges in India.
The marines, Salvatore Girone and Massimiliano Latorre, stand accused of the 2012 killing of two innocent Malayali fishermen who they thought were pirates about to attack the tanker Enrica Lexie, on which they were embarked as guards. Truth will be the third victim in the mindless squabble that has now erupted between our government and the Congress party over what the order means, but there are aspects of this case which should concern all of us as citizens.
First, India is still so insular in the second decade of a century it claims as its own that expertise in international law is almost entirely confined to the legal and treaties division of the Ministry of External Affairs, where the quality is very uneven. It is telling that Neeru Chadha, who retired as the head of the division, had to be brought back as India’s agent for both the case filed by Italy in the International Tribunal for the Law of the Sea (ITLOS) and at the arbitral tribunal in The Hague. It is even more telling that she simply spelt out the Government of India’s response to queries from the two courts. The legal arguments for India were presented by an American and a Frenchman. Two British QCs were the counsel for Italy, but that is primarily because most Italians stumble over English and French, the working languages of the tribunals. Indian lawyers are famously fluent in English, so that was not the problem. Clearly, none knew enough international law, unlike the battery of Italian lawyers who were the brains-trust for the QCs.
Italian marine to return home
It is surprising that India did not even draw on the expertise it does have. Though one of the QCs was Michael Wood, the British member of the International Law Commission (ILC), his Indian counterpart, Narinder Singh, Chadha’s predecessor as head of the L&T division, was not even an adviser to the Indian team, which could also have tried to enlist the formidable reputation and knowledge of P.S. Rao, who had marathon tenures as head of the division and on the ILC. Was this indifference or complacency?
Both seem to have been at play in India’s acceptance of the bench of the arbitral tribunal – Vladimir Golitsyn, Jin-Hyun Paik, Francesco Francioni, Patrick Robinson and P. Chandrasekhara Rao. Under the rules of UNCLOS, Annex VII, each party to a dispute nominates one member of the arbitral tribunal, and then three others are jointly selected from a list of names held by the UN Secretary General. P.C. Rao is the Indian judge on the ITLOS, and dissented when it ruled on Italy’s application in August 2015 through a majority verdict of 15-6. Francioni was the Italian judge ad hoc at the ITLOS, where Golitsyn and Paik were part of the majority ruling, which seriously undermined India’s position. Patrick Robinson, the Jamaican judge on the International Court of Justice, is the fifth member. If Golitsyn and Paik continue with the presumptions on the merits of the Italian case that guided the decision of the majority in the ITLOS, there is an automatic majority of 3-2 for Italy when the tribunal next takes up the question of India’s jurisdiction, as it now will.
The provisional measures issued on April 29 were by consensus, which means both the Italian and Indian judges accepted them, but the order represents a clever and shabby compromise which concedes the two premises on which the Italian case is based, with very little in law to recommend it. It continues to accept, firstly, that the dispute is over an interpretation of the UN Convention on the Law of the Sea (UNCLOS), and therefore ITLOS and the arbitral panel which it set up had jurisdiction to hear the case. Secondly, it believes “considerations of humanity” are involved in the Italian marines having to stay in Delhi, not as a guest of the government in Tihar but of the Italian ambassador in Chanakyapuri; conditions in the residence must be appalling.
To take the second point first, India’s Supreme Court has laid down that bail should be the norm, depending on the gravity of the charge. Here the charge is murder. In Italy, Amanda Knox, a US citizen accused in 2007 of murdering her friend in Perugia, spent four years in an Italian jail while her case wound its way through the courts, until her first acquittal in 2011. Italy did not believe then that considerations of humanity should prevail, though from what Cox wrote and said after her repatriation, she was held in conditions before which those at the Italian ambassador’s residence in New Delhi must pale.
Italy argues that the marines should be treated differently because they were in the service of their state when they committed the crime with which they are accused. However, the comparison then should be with the government officials who have been tried at the two international tribunals for the former Yugoslavia and for Rwanda, and at the International Criminal Court. Jurisprudence on bail in these courts is a work in progress, but detention is still the norm, though in the comfortable environs of the UN Detention Unit, known informally as the Hague Hilton. And that is because, as in the Enrica Lexie case, the charges against the accused are grave. In India one of the accused has been allowed to go home because he has had a stroke, and the other simply suffers the attentions of his ambassador. It is hard to agree that “considerations of humanity” come into play here.
Though government spokesmen point out that the arbitral tribunal seems to leave a decision on the marines to the Supreme Court, in fact there is very little choice. The Supreme Court will know that if it refuses to let the marines return, there is every chance that the tribunal will retaliate by ruling against India on the merits of the case, and hold that it has no jurisdiction to try them. Not just because the tribunal’s order stipulates that “Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone”, but to stave off this debacle, the Government of India will have to urge the Supreme Court to let him go off to Italy.
Why did the Indian member not dissent?
But this may not automatically give India the verdict it wants on the merits, because, to return to the first point, in exercising jurisdiction, both ITLOS and the arbitral tribunal have accepted Italy’s argument that this is a case that hinges on an interpretation of UNCLOS. However, as was argued most clearly in the dissenting opinion of the ITLOS vice-president, Judge B. Bouguetaia, there is not “the slightest connection between the case and the Law of the Sea Convention.”
Article 97 of UNCLOS, on which Italy relies to claim exclusive jurisdiction, stipulates that a member of the crew of a ship involved in an “incident of navigation” can only be tried either in a court of the flag-state or a court of his home country. However, there was no incident of navigation involved here. Italian Marines on an Italian-flagged ship fired on an Indian fishing vessel 20.5 nautical miles from the Kerala coast, and therefore in India’s contiguous zone, killing two Indian nationals. There are no provisions in UNCLOS that cover a crime like this. Courts are rarely modest, but it would have been intellectually honest of the ITLOS to have held that this was not a case in which it could exercise jurisdiction.
Instead, after issuing a provisional order which stayed judicial proceedings in India, it set up the arbitral tribunal, which has now issued its own provisional order. Neither could exercise jurisdiction unless it accepted the Italian claim that there was dispute over “the interpretation or application of” of UNCLOS. It follows that when it comes to a ruling on merits, the arbitral tribunal would look very foolish if it held that this was not after all a crime covered by the law of the sea convention. To save its own face, it would have to craft a creative interpretation of Article 97 to hold that snipers killing fishermen constituted an incident of navigation. If it does so, and it is hard to see how it can plausibly do anything else, it would then have to hold that India had no jurisdiction. This is a farce in slow motion, though it is also a protracted murder of international law.
Since the Indian member of the tribunal is there to protect Indian interests, it is baffling that he neither dissented nor put in an explanatory declaration to oppose a decision that so gravely weakens India’s case on merits. This must have been on instructions. Perhaps the government owes the nation an explanation for this.
The red herring of piracy
Italy has had the gall to argue that the prosecution of its marines calls into question India’s commitment to the fight against piracy in the Indian Ocean. It claims that its marines acted under the imprimatur of the UN Security Council’s resolutions on piracy, but starting with resolution 1816 (2008), and continuing up to its latest, UNSCR 2446 (2015), the council has made it clear that anti-piracy measures in the western Indian Ocean are restricted to “the territorial waters of Somalia and the high seas off the coast of Somalia”. The Indian Navy, which operates under this mandate, is one of those commended in UNSCR 2446 for its work.
The UNSC noted the “efforts of flag states for taking measures to permit vessels sailing under their flag transiting the High Risk Area (HRA) to embark vessel protection detachments”, as the Italians did. At its greatest extension after 2011, the HRA stopped 35 nautical miles from the Indian coast. Like many other commercial vessels then, the Enrica Lexie in 2012 was sailing so close to the Indian coast – just 20.5 nautical miles off it when it fired on our fishermen – precisely to avoid using the HRA, which entailed paying a war risk premium on its insurance cover. The ship was where it was because it knew there was not the slightest risk of attack from pirates there.
Italy simply cannot argue that its marines fired on the legitimate suspicion that the ship they were on was sailing alongside pirates. These were two trigger-happy men, who probably did not realise then that black lives matter. It is moot if the arbitral tribunal will.