Enrica Lexie: Did India Lose Case Against Italy Because of Lapses By its Own Supreme Court?

Had the apex court not left the question of jurisdiction open, India's arguments before the Arbitral Tribunal rejecting Italy's claim of state immunity for the two marines would have carried more weight.

New Delhi: The decks are clear for bringing the curtains down on judicial proceedings before the Supreme court in the Enrica Lexie matter. On Friday, the government formally approached the court seeking disposal of pending proceedings in Chief Master Sargeant Massimiliano Latorre and Others v Union of India and others.

This follows the Arbitral Tribunal (AT)’s May 21 award, released on July 2, requiring India to cease to exercise criminal jurisdiction over the two Italian marines, accused of killing two Indian fishermen on the high seas near Kerala on February 15, 2012. Despite Kerala’s concerns over the AT’s award depriving the Indian Supreme Court of criminal jurisdiction, the Centre has told the court that it has decided to accept and abide by the award, which is not appealable under the international law.

The Wire breaks down the salient features of the five-member tribunal’s award in terms of the majority decision and the two dissents.

Marines’ immunity deconstructed

The Arbitral Tribunal has held that the two Italian marines, who shot dead two Indian fishermen on the high seas in 2012, are entitled to immunity because immunity of state officials is a well-established rule of customary international law.

“The marines are state officials who were acting in their official capacity during the incident; and to the extent that the “territorial tort exception” is a customary rule of international law, it would in any event not apply in this case because the Marines were not on Indian territory when they committed the acts at issue”, the AT held in paragraph 873, explaining why India is precluded from exercising its jurisdiction over the marines.

India had argued that even if the immunity of the marines is conceded, the “territorial tort” exception to immunity applies in this case because the alleged crime was “committed against Indian nationals, on an Indian flagged boat, which is assimilated to India’s territory for the application of criminal law, and the marines have been found on India’s territory”.

The AT agreed with India’s position that “territorial tort” exception could be a valid one, but disagreed that the marines were on Indian territory when they committed the acts at issue.

According to India, the “legal fiction (of) assimilating ship and territory for the specific purpose of criminal law is well accepted and logical, especially since criminal jurisdiction can only be either territorial or personal, and for crimes committed on board a ship, India contended, territorial jurisdiction is the only possibility. (Paragraph 836).

Also Read: In Setback for India, Tribunal Says Country’s Courts Can’t Try Italian Marines

Responding to Italy’s contention, India maintained that the fact that the marines were not on board the “St. Antony” fishing vessel when they committed the alleged crime does not invalidate India’s argument.   Relying on a scholarly work which analyses various national legislation on immunity, India argued that general state practice shows that the overriding consideration is whether the injury has been suffered on the territory of the forum state.” (Paragraph 837)

The AT, in its analysis, referred to the principle of objective territoriality, well established in international law, under which a state may assert its jurisdiction in respect of offences committed outside its territory but consummated within its territory or, as stated in 1926 by the Permanent International Court of Justice in its S.S. Lotus judgment, “if one of the constituent elements of the offence, and more especially its effects, have taken place (in its territory).  (Paragraph 840)

The AT pointed out in paragraph 843 that under customary international law, immunity ratione materiae from foreign criminal jurisdiction is accorded to state officials in respect of their “official acts” or “acts performed in an official capacity”.  In paragraph 848, the AT held that immunity ratione materiae is enjoyed by state officials in general, irrespective of their position in the hierarchy of the state, and includes members of a state’s armed forces on official duties.

In paragraph 862, the AT concluded that regardless of whether the marines’ acts were ultra vires or unlawful, the evidence demonstrates that during the incident the marines were under an apprehension of a piracy threat and engaged in conduct that was in the exercise of their official functions as members of the Italian Navy and of a VPD (Vessel Protection Detachment). A VPD comprises uniformed military personnel embarked on a vessel with explicit approval of the flag state. Unlike private security actors at sea, VPD operators are trained to follow strict and defined rules of engagement through traditional military chain of command.

In paragraph 868, the AT pointed out that there is a general understanding that the “territorial tort” exception would apply in cases where (i) the acts at issue were committed in the territory of the forum state (i.e. in India) ; (ii) by a foreign official who had been present in the territory of that state at the time of the acts at issue without the state’s express consent for the discharge of his or her official functions.

In paragraph 869, the AT notes that prior to the 19th century, in reference to the jurisdictional relationship between a ship and its flag state, the ship was occasionally viewed as an “ambulatory province” or “floating island” of the state under whose flag it sailed. However, the legal fiction that ships may be assimilated for jurisdictional purposes with land territory of the flag state has since been universally rejected, the AT has pointed out.

In paragraph 870, it states that there is no support for the proposition that the second condition – the presence of a foreign official in the territory of the forum state without the state’s consent – is dispensable. To the contrary, it says, commentary on the subject underscores the importance of the presence of the foreign official in the territory of that state at the time of the acts at issue, and whether such presence was with or without the state’s express consent for the discharge of his or her official functions, for the exception to apply.

In paragraph 871, the AT says that it is undisputed that the marines were on board the Enrica Lexie and not on Indian territory when they committed the acts at issue. As such, there was no situation in which the Indian government’s consent for the discharge of the marines’ official functions could have been required or sought, and no intentional breach of India’s sovereignty can be imputed to the marines or the Italian state, the tribunal concluded. Therefore, in Paragraph 872, the AT expressed its view that even if a “territorial tort” exception were recognised under customary international law, the exception would not apply in this case.

The AT’s conclusion is inconsistent because it fails to recognise the possibility that even while on board the Enrica Lexie, the marines could commit an act whose consequences could be felt in India’s territory without its consent. Also, if the AT’s claim in paragraph 869 – that ships cannot be assimilated with national territory of the flag state – is correct, then the Enrica Lexie cannot be assimilated with Italian territory either, so as to grant the marines’ immunity.

The dissents’ significance

The AT’s conclusions are vulnerable, if one reads the two dissents carefully. In the AT’s own analysis, the Indian government’s consent would not be required if the marines were discharging official functions, and therefore, no intentional breach of India’s sovereignty could be imputed to the marines or the Italian State.

Dr P.S. Rao, one of the AT’s members, said in his dissent:  “I entirely disagree with its (AT’s) finding that the marines are entitled to immunity from Indian jurisdiction, even when they were on a commercial (cargo) vessel, under private ownership, whereas immunity under general international law is reserved in respect of a ship used only on government non-commercial service”.

Also read: Italy Wants a UN Tribunal to Stop India from Trying its Marines. Here’s Why It’s Wrong.

In paragraph 80 of his dissent, Rao said: “The conclusion reached by the AT on the merits of the Italian claim concerning the immunity of the marines does not fit well, like a square peg in a round hole, with the well-established principle under international law that government officials enjoy immunity from foreign jurisdiction for official acts performed. This is because the service rendered by the marines was part of an agreement amounting to a commercial contract”.

Another member of the AT, Judge Patrick Robinson, in his dissent, is of the view that the AT ignored the correspondence between the immunity of a state official and the immunity of the state itself for an act carried out by its official.  The immunity of a state official, in general, proceeds on the basis that the state itself enjoys immunity in respect of the acts of its officials. If the state does not enjoy immunity in respect of that conduct, it is difficult to see how the official could, since the state is the fountainhead of the immunity of its official, he opined.

Judge Robinson’s dissent also drew attention to the nature rather than the purpose of the act, performed by an official. In distinguishing between the two acts (state and commercial), the law, as is evident from the practice of majority of states, calls for an identification of the nature of the act or transaction, and not its purpose, he explains. The preponderance of authorities supports the use of the criterion of the nature of the act rather than its purpose or motive to distinguish between an act jure imperii  (i.e. the imperial public acts of the government of a state) and an act jure gestionis (the commercial activities of a state): the former act, being sovereign, attracts immunity while the latter, being commercial, does not.

Italy had submitted that even if the interests at issue were commercial, the distinction between acts jure imperii and acts jure gestionis is irrelevant to the functional immunity of state officials from foreign criminal jurisdiction as long as the acts at issue were performed in an official capacity.  To this, Judge Robinson’s reply is that the fact that the marines acted in an official capacity is immaterial; acting in an official capacity cannot by itself endow a state official with immunity if its state is not entitled to immunity in respect of his actions. The acts of the Italian state on the basis of which the marines performed their function amount to a commercial transaction, leaving Italy bereft of immunity for that conduct; therefore, the marines chosen by that country to implement the commercial transaction cannot be protected by an immunity that the Italian state itself does not have, he explains.

Judge Robinson further enunciates that state officials do not generate their own immunity by their acts; the source of their immunity is the state itself; if the state lacks immunity, as Italy does in this case, then it has no immunity to transmit to its officials or, in the language of the International Court of Justice, it has no immunity from which the officials would benefit. Therefore, the circumstances of the instant case are whole different from the situation dealt with in the cases set out by the AT majority to illustrate Italy’s argument, he says. (Paragraph 69 of his dissent).

“The presence of the marines on the vessel is so intertwined with the essentially commercial transaction between the Italian government and the shipowners that it is not possible to separate the one from the other.  When they fired the shots, they did so against the background and on the basis of a commercial transaction in which the government of Italy received from the shipowners the sum of 467 euros per person per day, amounting to 14,010 euros for 30 days of service and the shipowners were obliged to accept onerous obligations  in order to protect the government of Italy from claims arising from the conduct  of the marines. The shooting that led to the death of the two Indian fishermen was by its nature a commercial act carried out in defence of the interests of the shipowners. The services provided by the marines to the shipowners cannot attract immunity in the circumstances of this case,” Judge Robinson categorically held in his dissent.

In order for the marines to enjoy immunity, Italy has the burden of establishing that in their service on the ship they remained in the employment of the Italian government and did not become employees of the shipowners, he concluded. Absent an agreement between Italy and India for their immunities as officials of a foreign state, the marines do not enjoy immunity from Indian criminal jurisdiction in respect of the shooting from the Enrica Lexie that resulted in the death of the fishermen, he concluded.

Indian Supreme Court’s lapse

The Indian Supreme Court did not have the opportunity to examine Italy’s defence of immunity, because it asked the special court, constituted by it, to deal with the issue.  This, perhaps, was a lapse on the part of the Supreme Court. Had the Supreme Court dealt with it in the judgment it delivered through a two-judge bench on January 18, 2013, it could have had a persuasive impact on the AT’s award.  The special court constituted by the Supreme Court died a natural death due to circumstances beyond its control, without even having to start its proceedings.

The Kerala high court, however,  had dealt with the issue, saying that the act of shooting the fishermen was neither an action in defence of the Italian state nor one in defence of the vessel, but a private, illegal and criminal act. Therefore, the single judge bench held that the two marines had no immunity.  Unfortunately, the Supreme Court set aside the Kerala high court’s judgment on the question of jurisdiction, which helped Italy to claim before the AT as follows:

“Despite Chief Master Sergeant Latorre’s written notification to the Indian boarding team less than 24 hours after the incident that the marines were “exclusively answerable to Italian Judicial Authorities”, Italy’s February 18, 2012 note verbale to India’s Ministry of External Affairs asserting the marines’ immunity, and Italy’s repeated invocation of the marines’ immunity to challenge the jurisdiction of Indian courts, the Indian authorities and judicial bodies have failed to decide the question of immunity to date.” (Paragraph 829)

The absence of an  authoritative pronouncement on the marines’ immunity by the Supreme Court thus led the AT to consider it a grey area, and an incidental issue to be decided by itself, even though its competence to do so, in the absence of clear provisions in the United Nations Convention on the Law of the Sea, came in for criticism from the dissenting judges.