The 2012 Italian shooting in the Arabian sea is an incident
under investigation that occurred within the Indian Contiguous Zone on
the 15th of February 2012, off the coast of southern
India, in
which the use of live fire from automatic weapons by members of an
Italian navy Vessel Protection Detachment (VPD) on board oil tanker
MV
Enrica Lexie was linked to the death of two Indian fishermen on
board a fishing boat. Ajesh Binki and Valentine aka Gelastine, natives
of
Tamil Nadu and
Kerala
respectively, were allegedly shot dead by Italian
marines of the
Reggimento San Marco,
Marina Militare.[1]
The incident sparked a major diplomatic row between
Italy and
India, with Indian police immediately opening a murder enquiry and later
arresting two members of the Italian Navy security team over the
shooting. The two Italian marines were released after 105 days in
judicial custody under strict bail conditions and assurances from the
Italian Government that they will remain available to answer charges
before Indian courts.
Shooting
Map of areas under threat by pirates in the Indian Ocean.
The MV
Enrica Lexie was traveling from
Singapore to
Egypt
with a crew of 34 including 19 Indians and accompanied by six
Italian
marines from the
San Marco Regiment, while the fishing trawler named St. Antony
had left
Neendakara in
Kerala
with a crew of 11 to fish for tuna.
According to the
Indian Coast Guard,
Indian government sources and the crew of the fishing boat Saint
Antony, the incident occurred at approximately 16:30
IST (UTC+05:30,
2:30 PM, Rome
time) when the fishing boat was returning from a fishing expedition and
happened within the Indian
Contiguous Zone around 20.5 nautical miles off the coast of
Kerala.
The captain and owner of the St. Antony, Freddie Louis, said
that their boat was returning from their fishing expedition and was
waiting for the tanker to pass when the security men on board the tanker
fired at the boat “without provocation”. According to him, the firing
lasted for two minutes, killing driver Gelastine immediately and
injuring Ajesh Binki; soon after the trawler steered out of the firing
range, Binki succumbed to injuries.[2][3]
[4] Umberto Vitelli, the captain of the Enrica Lexie,
claimed that the Italian naval guards opened fire in self-defence
against armed pirates.[5][5][6]
In the court affidavit filed by the two marines urging the
Kerala High Court to quash the FIR (First
Information Report) against them, the document states:
- "The master of the vessel increased the speed of the ship to 14
knots (about 28 km/per hour) and reduced the speed to 13 knots once
the piracy attack was averted. The master also activated the
Ship Security Alert System (SSAS) which sent out signals to the
Italian Maritime Rescue and Coordination Centre (MRCC). The master
also reported the incident on the mercury chart which links together
and transfers information to the community including several navies
across the world fighting piracy, including to the Indian Navy
headquarters. The 'Military Report' was also done. A report was sent
to MSCHOA at UK. Since the attempted attack was averted, the vessel
continued on its scheduled course of journey."[7]
However, no documentary evidence to support the statement was
submitted along with the affidavit to the Kerala High Court and
therefore resulted in Justice P.S. Gopinathan rejecting the withdrawal
of the FIR by observing:
- "It is pertinent to note that no record was produced to show
that the marines, before shooting down the fishermen, had even
intimated any piracy threat to the Captain of the ship or that the
Captain had recorded the same. Also there is no document in support
of the plea that the Master had activated the Ship Alert Security
System or that any signal was sent to the MRCC, Mercury chart or to
any of the Navies across the world."[4]
Speaking to an Indian television channel in India on 18 May 2012,
Staffan de Mistura, the Italian Deputy Foreign Minister, said :
"They (Italian naval marines) had tried to send some signals. They shot
into the water and fired warning shots, some of which went in the wrong
direction". He described the death of the two fishermen caused by the
shooting as an "accidental killing" and an "unfortunate incident which
everyone regrets. Our marines never wanted this to happen, but
unfortunately it took place".[8][9][10]
Indian Coast Guard intervention
Court documents submitted by the Government of India on behalf of the
Indian Coast Guard and
Indian Police chronologically list the actions that were taken after
the fishing boat reported the incident to the coastal police at
Neendakara in
Kollam
district.[4]
The Indian Coast Guard launched search operations with CGAE Kochi and by
deploying two
Offshore Patrol Vessels ICGS Samar and ICGS Lakshmi Bai in addition
to a Dornier
Do-228 maritime surveillance aircraft to intercept the Enrica
Lexie.[1][11]
After the incident, the Enrica Lexie continued sailing for almost 3
hours and covered a distance of 39 NM from the original position. Only
after interception by the Indian Coast Guard and being forced by the
Coast Guard to proceed and anchor at Kochi did the vessel send an e-mail
reporting the incident to her owner at about 19.17 hours. It was also
stated that the vessel had not immediately reported the incident to the
IMB piracy reporting centre, which is the mandatory procedure. Speaking
for the Coast Guard,
Vice-Admiral K.N. Sushil, Flag Officer Commanding-in-Chief of the
Southern Naval Command and Commander-in-Chief (Coastal Defence) of the
Southern Zone, stated that it appeared the Italian marines erred in
judgement. He noted that while it was accepted procedure to report
piracy events or suspicious activities immediately to Maritime Rescue
Coordination Centre (MRCC), the ship continued sailing for 70 km on its
route to Egypt without reporting the incident and that they gave
information only when contacted by the Coast Guard two and a half hours
after the incident, upon which they were asked to proceed to Kochi.[2]
He added:
- "If they thought they were being chased by a pirate vessel, they
should have carried out evasive manoeuvres to alter the course of
the ship, as enunciated by the guidelines. If the
skiff
was still after them, they would've fired a few
warning shots well above the
bow of the pirate vessel to deter it. Unfortunately, they do not
seem to have done any of this. The Italians are claiming that this
was a successful anti-piracy operation, but it is crystal clear that
the fishermen were unarmed and were not attempting to come alongside
the tanker to board it. As the tanker crew claims to have been fired
upon, I sent
INS Kabra to ascertain if there were bullet marks on it.
It went around the ship to find that there was none. I've also asked
my men to verify the tanker's logbook to account for the number of
rounds fired by the guards. This is to see if they had fired any
warning shot at all. What are you talking about the fishing vessel
giving you a chase when the maximum speed it can attain is just
about eight
knots?"[11]
Victims
The bodies of the two fishermen, Gelastine (45) and Ajesh Binki (25),
were brought to Neendakara harbour late on the night of 15 February and
were taken to the Medical College Hospital,
Thiruvananthapuram, for
post
mortem. Subsequently, Gelastine's body was taken to
Kollam
and buried on the morning of 17 February, while the body of Ajesh Binki,
was taken to Erayammanthurai in Tamil Nadu's
Nagercoil district and buried. The
Kerala
government announced a
solatium of 500,000
Indian rupees (€7.500) to the families of each of the victims, while
the
Tamil Nadu government announced a solatium of 500,000 rupees
(€7.500) to the family of Ajesh Binki.[11]
On 21 February, the cabinet of the state government of
Kerala,
decided to give a government job to Dora, the widow of fisherman
Gelastine.[12]
On the same day, the family of fisherman Gelastine filed a petition in
Kerela High Court seeking 10,000,000 rupees (USD
$200,000) in monetary relief from the Italian shipping company that
owned the ship Erica Lexie, an amount they consider necessary for
Gelastine children's education and future requirements.[13]
On 23 February, two sisters of fisherman Ajesh Binki also filed a
petition in Kerala High court seeking monetary relief of 20,000,000 (USD
$400,000).[14]
On 27 February, Freddy J, the owner of the fishing boat, St
Anthony, filed a petition in Kerala High Court seeking 7,200,000
rupees (USD
$145,000) for damage that the boat suffered as a result of shooting.[15]
Diplomatic fallout
On 16 February, the Italian
ambassador in
Delhi,
Giacomo Sanfelice di Monteforte, was summoned to the
Indian Ministry of External Affairs and an official protest at the
incident was lodged.[1]
On 17 February, Indian External Affairs Minister
S. M. Krishna informed the Italian
Foreign Minister in a telephone conversation that the fishermen were
unarmed and posed no threat to any ship.[16]
The
Italian foreign ministry said in a statement that Italy’s ambassador
to India and a delegation of experts from Italy’s foreign,
defense and
justice ministries arrived in Delhi on 19 February 2012 and
discussed the case with Indian officials. However, the meeting between
the Indian and Italian officials failed to yield agreement.
Maja Kocijancic, the official spokeswoman for
European Union
foreign policy Chief
Catherine Ashton on 13 March 2012 stated (Sic)
- "The EU is in contact with Italian and Indian authorities in the
hope of finding a satisfactory resolution of this case as soon as
possible. The EU has deployed navies to police the coast of Somalia
since 2008 and would like the use of armed guards regulated within
the International Maritime Organization. This is a much broader
issue that needs to be addressed in order to make sure we do not see
incidents and problems that we are faced with in this particular
case, and that's why we are keen to take this forward."[17][18]
The filing of a charge sheet for murder against the two accused
Italian Marines before the Kollam Chief Judicial Magistrate Court on 18
May 2012 by the Special Investigation Team (SIT) prompted the Italian
Government to briefly recall its ambassador to India for consultations.[19]
On 14 December 2012, the Italian foreign ministry summoned the Indian
Ambassador to express the Italian Government's "strong disappointment
and profound bitterness" that the Indian Supreme Court has reserved its
verdict on the question of court jurisdiction which it heard on 4
September 2012.[20][21][22]
According to the official spokesperson in the Indian ministry of
external affairs, the Indian envoy Debabrata Saha "explained to them
that this is a matter which is in the province of our judiciary and we
will have to wait for an outcome of judicial action on that".[23]
Italy has threatened a diplomatic offensive in order to obtain the
release of the Marines.[24]
Italian Foreign Minister Giulio Terzi and Deputy Foreign Minister
Staffan De Mistura have mentioned that legal and political-diplomatic
initiatives will be initiated at the international level. Italian media
reports claim that Italy will escalate pressure by taking India to the
International Court of Justice in The Hague to settle the dispute if
a solution is not found by mid-January 2013.[25]
Major disputes
Time and location of the shooting
According to Indian authorities, the firing occurred in the
contiguous zone that is well within its
jurisdiction.[26]
The Indian
Directorate General of Shipping stated: "It has been reported to
this Directorate that the Italian flagged MV Enrica Lexie, resorted to
firing on an Indian fishing vessel in position 09 20N 075 52E (heading
345 speed 14 kts) at 1700 Hrs on 15th February 2012. The vessel MV
Enrica Lexie is carrying six Italian armed guards. The firing has
reportedly resulted in the death of two Indian fishermen. The vessel was
bound from
Singapore to
Egypt
with a crew of 19 Indians. The Coast Guard intercepted the vessel and
escorted her to Kochi for investigation. The vessel has anchored at
Kochi on 15th February 2012 at 2300hrs (IST). The Principal Officer, MMD
Kochi has been directed to conduct the preliminary inquiry into this
incident resulting in the loss of life of two innocent Indian fishermen"
[27][28]
A statement by India's
ministry of external affairs denied that the fishermen were armed.[29]
In a controversial article
[30] based on details obtained from undisclosed
Italian Defense Ministry sources, journalist Fiorenza Sarzanini of
the
Corriere della Sera alleged that
satellite tracking confirmed that the Italian tanker was
“thirty-three miles off the south-west coast of India”, i.e. outside
India's territorial waters and contiguous zone both, but within India's
Exclusive Economic Zone when the incident occurred. The time of the
shooting, 11:30 AM according to Italian sources, also differs
considerably from the version given by Indian Coast Guard, so that it
could be conceivably that two distinct incidents had actually happened.[30]
Moreover, the article alleges that the Italian Navy ordered the merchant
navy crew and Italian Navy marines on board not to obey orders from
Indian authorities.[31]
The Italian Navy had reportedly objected to the Enrica Lexie
moving into Indian waters and the disembarkation of its military
personnel on board, reported Corriere della Sera website[32]
Italian Foreign Minister
Giulio Terzi tweeted: "In no case should the ship have entered
Indian waters (...) The polemics on responsibility I leave to others."[33]
The Italian ambassador to India stated that he wanted to underline
that the Enrica Lexie had voluntarily proceeded to the port of
Kochi.[11]
This seems to contradict both
- documentary evidence submitted to court authorities by the
Indian Coast Guard showing that the Enrica Lexie changed
course only after being directed by the Indian authorities
and also
- the information published in the Italian media stating that the
Enrica Lexie initially received orders from the Italian Navy
to leave the Indian
EEZ and not change course towards Kochi.
Italian Foreign Minister Giulio Terzi, in an open letter to Italian
newspaper Eco di Bergamo, alleged that "the entering of the
Enrica Lexie into Indian waters has been the result of a subterfuge by
the local police, who required the ship master to head for the port of
Kochi in order to contribute to the identification of some suspected
pirates."[1].
Neither the Indian Coast Guard nor other Indian authorities have issued
an official confirmation to validate this claim. Evidence submitted in
the form of the Indian Coast Guard Board Officer's report to the Kerala
High Court contradicts Giulio Terzi's claim of subterfuge with a
narrative stating instead that the vessel had to be forced to comply :
"after the incident, the vessel traversed almost 3 hours and made good a
distance of 39 NM from the original position, and only after
interception by the Indian Coast Guard the vessel sent an e-mail to her
owner at about 19.17 hours on 15.2.2012 reporting the incident; and
therefore it was evident that the master had no intention of promptly
reporting the incident to either the coastal state or the flag state,
nor had he made any attempt to report the incident to the coastal
authorities. The vessel sent out message regarding the incident, only
after being forced by the Coast Guard to proceed and anchor at Kochi".
Legal jurisdiction
Lee Adamson, head of the public information services for the
International Maritime Organisation (IMO), stated that the IMO could
not intervene in the diplomatic row between India and Italy. “Any loss
of life at sea is regrettable. However, we are unable to offer you any
comment on the circumstances surrounding this incident. It seems, from
the facts that have emerged thus far, that this is not something covered
by any IMO measure”. IMO guidance to shipowners, operators and masters
refer to the use of privately contracted armed security personnel
(PCASP) in high-risk areas. The guidance states that a ship’s master or
captain will be in command and will retain the overriding authority on
board. PCASP should be fully aware that their primary function is the
prevention of boarding (by pirates), using the minimal force necessary
to do so. Mr Adamson clarified that “The PCASP guidance (to
shipowners/operators) adopted by IMO deals with privately-contracted
armed security personnel (PCASP), not with the presence of government
military personnel on board merchant ships,” Adamson added, “IMO does
not address the concept of ‘rules
of engagement’ as this is a military concept, outside the
organization’s remit.”
[34]
The
Oil Companies International Marine Forum held at IMO Headquarters in
London from 11 May to 20 May 2011 took note that the deployment of
government military personnel on board privately owned merchant ships
and also referred to as Vessel Protection Detachments (VPD) raises
important issues pertaining to jurisdictions of
littoral States in the event of an incident.[2]
In the aftermath of the incident both Italy and India cited
provisions and limitations of the
United Nations Convention on the Law of the Sea (UNCLOS)[35]
in order to establish jurisdiction over investigation and prosecution of
the alleged crime without coming to any agreement.[36]
The
Italian government has claimed that the marines are elements of the
State and that they enjoy absolute
sovereign immunity. Italy also cited
extra-territorial provisions of its laws to claim that the presence
of military personnel deployed as VPD aboard the oil-tanker merchant
vessel is governed by an Italian law conforming to U.N. anti-piracy
resolutions, and hence such personnel are part of the Italian state and
thus immune to the jurisdiction of foreign states.[37][38]
In response, India cited extra-territorial provisions of its own law[39]
stating that irrespective of the location of the ship (whether in
international or territorial waters), a crime had been committed against
Indian citizens on an Indian ship and hence India had the jurisdiction
to prosecute and try the case. Furthermore, India has pointed to the
absence of any international treaty regarding
immunity from prosecution for Vessel Protection Detachments (VPD) on
board privately-owned commercial ships. India has also highlighted that
there exists limitations to
functional sovereign immunity such as when commercial activity is
involved and drew attention to the fact that the Italian Navy marines
were working on a contract basis for the protection of the private
interests of the ship owner and therefore could in no way be treated as
a discharge of sovereign functions.[40]
India has signed but not ratified the yet unimplemented United Nations
Convention on Jurisdictional Immunities of States and Their Property,
2004.[41][42][43]
According to some experts,[44]
the SUA Convention allows for India to claim jurisdiction under Arts.
6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1)
and 6(1)(3). Hence, both Italy and India have concurrent jurisdiction
over the Italian armed guards, but as a purely practical matter,
jurisdiction falls to the country that reaches the alleged perpetrators
first, subject to the principle of aut dedere aut judicare
(“extradite or prosecute”). The facts of the Enrica Lexie mirror
those from the famous 1927
Lotus opinion by the
Permanent Court of International Justice (PCIJ), where a French ship
collided with a Turkish ship killing eight Turkish sailors on the high
seas. The French captain was prosecuted in Turkish courts and the
Turkish and French governments submitted the question of jurisdiction to
the PCIJ. The latter held that, absent a relevant provision to the
contrary, Turkish courts could exercise criminal jurisdiction over the
French captain because the incident took place on the high seas and had
a substantial effect on Turkey.[44]
However other experts claim that "reliance on the Lotus case is
erroneous", international law had changed since then "and UNCLOS, 1982
specifically derogated from the principles laid down in the Lotus case
and gives exclusive jurisdiction to the flag state (Italy)".[45]
Moreover, in the Lotus case Lieutenant Demons was a Lieutenant in
France’s merchant marines, while in this case " the two marines were
members of Italy’s military, specifically assigned to this commercial
vessel in accordance with Italian law (which apparently was itself
consistent with UNSC anti-piracy resolutions)", so that "Italian State
sovereignty is much more directly at issue in the prosecution of Italian
marines who were performing state-mandated functions".[46]
Article 97 of the United Nations Conference on the Law of the Sea
(UNCLOS) states that “No arrest or detention of the ship, even as a
measure of investigation, shall be ordered by any authorities other than
those of the flag state”. According to some experts, Article 97 has been
quoted by the Italian authorities out of context, as it deals with
‘Penal Jurisdiction in Matters of Collision or any other incident of
Navigation' and in the case of Enrica Lexie there was neither any
collision nor any navigational incident. Additionally, as per these
experts, Annexure III of UNCLOS stipulates certain freedoms that are
recognized by the general principles of international law, wherein
freedom of fishing is a part; hence, Enrica Lexie should have steered
clear of the fishing vessel.[47][48]
The IMO’s SUA Convention (SUA Act) was passed with the goal of
suppressing international terrorism. The Convention seeks to achieve its
aim by proscribing acts, not classes of people. Article 3 of the SUA
Convention lists the crimes punishable under the Convention, stating
that “any person” who “performs an act of violence against a person on
board a ship, if that act is likely to endanger the safe navigation of
that ship,” that person has “commit[ted] an offense” under the
Convention. Similarly, the SUA Act states that “whoever unlawfully and
intentionally” commits an act of violence against a person on board a
ship has violated the Act and is subject to punishment for that act.[44]
India and Italy do not have any
Status of Forces Agreement (SOFA) agreement that would allow Italian
defense personnel to claim absolute or
qualified immunity from the Indian legal system.[49]
On the matter of jurisdiction, whilst Italy will need to show
exclusive jurisdiction, India only needs to show that it also has
jurisdiction.[44]
Arrest and incarceration of Italian marines
The Kerala Police charged two Italian marines aboard the Enrica
Lexie, who were identified as Massimiliano Latorre and Salvatore
Girone, with homicide under Section 302 of the
Indian Penal Code and on 19 February took them into custody for
interrogation.[11][50][51]
The arrested Italian marines were first remanded to police custody in
a CISF guest-house and thereafter to judicial custody at the Kochi
Police Club. The marines met with Italian consular and diplomats on an
almost daily basis. Commenting on the conditions in which the two
Italian marines were being held, Italian Deputy Foreign Minister Staffan
De Mistura has said that his country was satisfied with the manner in
which the two marines were treated by the police. “That's the way we too
would have treated any serving military personnel from India had they
been arrested in Italy for some reason”.[52]
Investigations
Indian
investigations
Whilst the
Kerala State Police is the principal agency tasked by the courts
with the investigative process, other specialized agencies such as the
Central Forensic Science Laboratory,
Indian Coast Guard,
Indian Navy,
Indian Customs & Central Excise department,
Central Industrial Security Force, Indian
Mercantile Marine Department (MMD) and
Trivandrum Medical College Hospital have assisted the police
investigators with technical and logistical support.
Based on postmortem carried out on 16 February, Kerala police
registered a case of murder against the armed guards of the Enrica
Lexie.[53]
The pathologist's autopsy revealed that bullets of
5.56mm NATO bore were used for the killing of the two fishermen.[54]
A trail of 15 bullets was found on the fishing boat, while one bullet
each was found in the two dead bodies.[55]
Given the diplomatic issues and international media coverage, the
Kerala Police formed a high level Special Investigative Team on Feb 21
to probe into the incident.[56]
On 24 February, the Indian Coast Guard released its report into the
incident. As per the report, the ship Enrica Lexie did not have a
Graduated Response Plan against piracy and violated Alert Embankment
Guidelines issued by the International Maritime Organisation.[57]
On 2 March, Indian Mercantile Marine Department (MMD) investigators
examining the ship documents and instrumentation data from the Enrica
Lexie announced that the civilian merchant marine crew had violated
maritime laws by failing to archive data from the ship's
voyage data recorder (VDR).[58][59][60]
According to the International Maritime Organization's
SOLAS requirements, every vessel has to maintain VDR data. The VDR,
which is equivalent to the
black box in an aircraft, is supposed to record conversations in the
captain's cabin, the vessel's position and happenings on board every 12
hours, after which it overwrites the data with fresh details unless
archived manually. If there is an important event on board or in the
vicinity, the VDR data is required to be archived by the captain of the
ship. International maritime rules insists that VDR data should be
locked by the captain at the time of the incident and surrendered before
the investigation officials immediately after berthing the vessel at the
nearest port, in this case in Kochi on 17 February.[61][62]
Marine investigators use VDR data to identify
command responsibility aboard seagoing vessels.
Italian
investigations
Italian Prosecutor Elisabetta Ceniccola has opened an investigation
in Rome against Massimiliano Latorre and Salvatore Girone of the San
Marco Regiment attached to the Military Protection Department in
accordance with Article 575 (homicide) of the Italian penal code in
Rome."[63][64][65][66]
Italian Deputy Foreign Minister Staffan De Mistura described the killing
of the fishermen as accidental but insisted that Indian courts
did not have jurisdiction over the incident.[67][68][69]
He added : "Whatever be the judicial verdict in India, the marines would
be tried for murder in Italy".[70]
On 10 May 2012 Prosecutors Cennicola and her colleague Francesco
Scavo interviewed the other four marines after they had arrived back
from India. They reportedly replied they didn't witness the shooting.
The actual interrogations had been classified.[71]
On 3 January 2013, when Girone and Latorre were in Italy for a
Christmas leave conceded by Indian court, and just before they had to go
back to Kerala, Prosecutor Cennicola and her colleague Giancarlo Capaldo
interviewed them for 5 hours.[72][73]
Mr. Capaldo also stated to press that the
international rogatory letter they had sent to their Indian
counterparts has not yielded any results yet: no documentary material
about investigation carried out in India has arrived to Rome so far.[73]
Court proceedings
Following their arrest on Feb 19, 2012 (a public holiday in Kerala)
on board the Enrica Lexie and after completing formalities in
Kochi,
the two Italian Marines were produced at the residence of the
District Court Judicial Magistrate at Karunagapally for
Kollam
district. The Judicial Magistrate remanded the two marines to three day
police custody over charges of murder under section 302 of Indian Penal
Code.[74]
the marines were taken to nearby
Kollam
town by the local investigating team and produced in a
Sessions Court. The Sessions Court directed the two marines to be
held in a
CISF guest-house instead of a regular detention center.
On Feb 21, 2012, the Italian Marines filed a plea in
Kerala High Court to quash the charges against them.[75]
On the same day,
Judicial magistrate Dony Thomas issued the order on a petition filed
by SP Daniel Christie to enable the investigators to enter the ship,
anchored off the port of Kochi, and seize the murder weapons.[76]
Separately, the judge who originally remanded the two Italian Marines to
police custody, extended their police custody to eleven days.[77]
The shipping company also filed a plea to get the ship released[56]
On Feb 22 2012, the Kerala High Court ruled that the ship Enrica
Lexie cannot leave without a clearance from investigative agencies
and only after paying 2,500,000 rupees (USD $ 50,000) as a guarantee
against civil lawsuits pending against the shipping company.[78]
On Feb 23 2012, the Kerala High Court admitted the petition filed by
the Italian Consul General in Mumbai and the two accused Marines to stay
all further proceedings in the case against the two marines. The
petition submitted that Kerala Police has no authority to conduct
investigation in the case and that courts in India have no jurisdiction
as the incident occurred beyond Indian territorial waters. In response,
the court granted one week's time to Kerala state and Central government
in Delhi to file counter affidavits.[79]
On the same day, the Sessions Court in Kollam, extended by another week
the police custody of the two Italian Marines charged with shooting
death of two fishermen.[80]
The Kerala High Court also advised the Italian government and its two
navy marines to cooperate with the ongoing investigation in response to
the petition filed on Feb 21, 2012 seeking a stay on proceeding and
quashing of the FIR.[81]
On Feb 27 2012, in the
civil case against the owners of the Enrica Lexie, the Kerala
High Court asked whether the owners and the families of two fishermen
would be willing to go for an out-of-court settlement in determining the
amount of compensation in the Civil case.[82]
In the
criminal case, counsel for the petitioners Advocate Suhail Dutt, a
Supreme Court lawyer, submitted that an investigation has already been
launched against the two accused in Rome. The Kerala High Court asked
Italy to file a statement on the inquiry initiated against two of its
navy personnel for the killing of two fishermen and to produce the terms
and conditions for deploying Italian military personnel on board Italian
merchant marine ships.[83]
The Coast Guard submitted before Kerala High Court that the two marines
fired 20 rounds at the fishing boat.[83]
The state government submitted that the arrested Italians refused to
wear civil dress instead of their Italian naval uniform while presenting
themselves before the courts.[83]
On Feb 28, 2012, the Italian government filed a petition in the
Sessions Court at Kollam seeking representation during forensic
examinations of weapons recovered from the ship Enrica Lexie.[84]
The Coast Guard filed a statement in the Kerala High Court pointing out
that when the February 15 incident took place, the ship was at 20.5
nautical miles from the Kerala coast, which is known as the “Contiguous
zone”. It also said that the St Antony boat was 100 meters
away from the Italian ship, to which it was never a threat.[85]
In the civil case against Enrica Lexie, the Kerala High Court directed
the owners of the Italian-registered oil tanker the Enrica Lexie
to furnish a bank guarantee of 30,000,000 rupees.[86]
The Kollam Sessions Court rejected a plea by Italian Government
representatives to allow their forensic experts to be present during the
examination of the weapons seized from the Italian cargo ship Enrica
Lexie. However, the judge allowed Italian forensic experts to be
present during unsealing of the weapon boxes and the test firing of the
guns by Indian ballistic experts.[87]
On Feb 29 2012, the Kerala High Court on Wednesday dismissed an
appeal filed by Freddy, the owner of the fishing boat involved in the
firing incident, seeking an enhancement of the bank guarantee to be
furnished towards the compensation claims.[88]
In the criminal case, the High Court expressed displeasure regarding
"serious defects"
[89] in the petition that was filed by Italian Consul-General
on Feb 23 and said it will look at the petition only after these errors
have been corrected.[90][91]
The Sessions Court in Kollam extended police custody of the two Marines
until March 5.[92]
On March 1, 2012, the Sessions Court at Kollam ruled that two Italian
officials could be present only as "silent spectators" during the
forensic examination of weapons and should not interfere in it, verify
the results or reveal it.[93]
On March 2, 2012, taking up the revised petition filed by the Italian
Consul-General, the court asked the Italian authorities whether there
was any understanding between India and Italy regarding the binding
nature of its judgment and whether the Italian side would abide by the
court order on the petition. The lawyer for the Italian side responded
that the government of Italy was ready to give in writing that they
would abide by the court order.[94][95]
On March 4, 2012, the two Italian guards were remanded to judicial
custody for fourteen days by the Sessions Court in Kollam and sent to
the Central Prison at Thiruvananthapuram. The court turned down their
plea that they should be given all privileges in prison enjoyed by
military officials by saying that there was no such provision in Indian
law. The court, however, directed the prison authorities not to lodge
them along with other prisoners and to provide them medical facilities,
Italian food, and visitation rights for one hour each day.[96]
On 18 May 2012, after examining 60 witnesses Kerala police filed a
196-page charge-sheet, including forty-six material objects and 126
document annexes,[97]
before the Chief Judicial Magistrate in Kollam (Kerala) accusing the two
detained Italian Marines (Massimiliano Latorre and Salvatore Girone) of
murder under IPC and also invoking International Maritime Law. Charges
have been filed under IPC sections 307 (attempt to murder), 427 (causing
damage or loss) and 34 (acting in common intention). Article 3 of the
Suppression of Unlawful Act of International Maritime Navigation has
also been invoked in connection with the incident. The charge sheet
included exhibits seized from the Enrica Lexie, notably the
Voyage Data Recorder (DR), six Beretta guns, two mini-light machine
guns, 1690 bullets and the deck-log of the ship and GPS.[98]
On 2 June 2012, the two Italian marines were released after 105 days
in judicial custody under strict bail conditions and assurances from the
Italian Government that they will remain in India. The bail conditions
set by the Kerala High Court including a bond of Rs. 1
crore
each with two Indian solvent sureties for a like amount. The marines
have to stay within a 10 km radius of the Kochi Police Commissioner's
office and appear before the Commissioner on all days between 10 a.m.
and 11 a.m. and as and when required.[99]
In a statement released by Italy's Prime Minister Mario Monti, he
expressed “great satisfaction” over the release on bail of the two
marines.[100]
On 4 September 2012, the Indian Supreme court heard a petition filed
on behalf of the Italian Marines seeking to quash court proceedings in
Kerala on the basis that the two soldiers were armed forces personnel of
a foreign country in active duty and therefore enjoy sovereign
functional immunity. The Supreme Court reserved it's verdict.[101]
Speaking to the media at Kochi on 15 December 2012,
Italian defense minister
Giampaolo di Paola acknowledged that Italy respects the judicial
process underway with the Supreme Court of India. "We respect and I do
respect Supreme Court of India. We are confident that the case will be
solved according to national laws, international justice".[102]
He also urged the Kerala High Court to allow the Italian Marines
celebrate Christmas in Italy albeit in the face of opposition from the
local fishing community and the Government of the State of Kerala.[103][104][105][106][107][108]
On 20 December 2012, the Kerala High Court accepted to temporarily
relax bail conditions for both Italian Marines by allowing them to
travel to Italy for 2 weeks during the Christmas vacation period. Italy
was required to pay a further bond of Rs. 6 crore[109]
(more than 800 thousand Euro)[110]
and keep the Marines under surveillance at all times. The Italian
Government submitted guarantees to the High Court prior to taking
custody of the Marines and was responsible for their return and
surrender of passports to the Kerala High Court before 3PM
IST on January 10, 2013.[111][112]
On Friday 4 January 2013 the marines flew back to Kochi airport,[113][114]
"keeping their words of Italians and trusting in justice".[115][116]
On arrival, they surrendered their passports and appeared in front of
the court, which on turn gave directions to release the Rs. 6 crore
bail, and for the marines to appear before it on January 15.[117][118]
Other issues
Olympic Flair, the Greek tanker
In the aftermath of the incident, the Indian Coast Guard identified
four possible ships (Enrica Lexie, Kamome Victoria, the
Giovanni and the Ocean Breeze) that could have been involved
in the incident.[119]
All four ships were contacted by radio and asked if they were involved
in a pirate attack. Only the Enrica Lexie responded positively
and hence was asked by the Coast Guard to turn around and dock at Kochi.[120]
ICC Commercial Crimes Service register indicates that a ship reported
an attempted pirate attack while docked 2.5 miles away from Kerala
coast.[121]
However, the ICC report of this incident makes no mention of the name of
the vessel involved.
Italian media quoting undisclosed Italian sources claim that the
vessel involved was the Greek tanker Olympic Flair and that it
was never contacted by the Indian Coast guard.[122]
As per these reports, on 15 February, around 20 robbers in two boats
approached the Olympic Flair and attempted to board her. When the
lookout crew raised alarm, the robbers aborted the attack and moved
away.[123][124]
It has also been alleged that the Olympic Flair was also involved
in a gun fire-fight.[123][125]
On 21 February, the
Hellenic Merchant Marine categorically stated said that no Greek
ship was involved in a piracy attack off the coast of southern India in
recent days.[123][124]
Intervention by Catholic Cardinal of Kerala
According to
Vatican-based
Catholic news agency
Agenzia Fides, the newly consecrated
Cardinal of the Catholic Church, Mar
George Alencherry from Kerala, has called for a "peaceful solution"
to the issue. He has appealed to the
Kerala government not to resort to "precipitate action" and warned
the opposition against trying to exploit the situation. He said, "I am
and will remain in close contact with the Catholic Ministers of Kerala
and I hope that they will help to pacify the situation."[126]
However, a spokesman of the Kerala-based
Syro-Malabar Church said that the statement of Alancherry was
"distorted" by media and he had not said anything that went against
India's position on the issue.[127]
The news report from the Vatican Insider quotes Alencherry as
follows, "I learnt about the Catholic fishermen who were killed: it is
very sad. I contacted Catholic ministers straight away, asking the
government in Kerala not to act hastily. Errors of course were made
during the incident, as fishermen were mistaken for pirates. The point,
however, is that it seems the opposition party wants to take advantage
of the situation and manipulate the case for electoral reasons, making
reference to western powers and to America’s attempt to gain supremacy."[128]
The Cardinal later issued a press statement which said, "The report of
the Italian press agency is wrong. The agency removed the report and
expressed their apology for the mistake. I have not tried to intervene
in this matter, nor have I contacted any ministers regarding this. Two
precious lives have been lost. Strong legal action should be taken
against the guilty."[129]
Monetary
compensations
On 24 April, the Italian government concluded an out-of-court
settlement whereby which they paid 10,000,000 rupees (€150,000) to each
of the victims' families. A “without-prejudice offer” was made to the
legal heirs in the form of a one-time full and final ex-gratia payment
of Rs. 1 crore so as to enable the first party (legal heirs) to rebuild
their lives. The agreement said the legal heirs agreed that such a
“without-prejudice offer” did not fasten on the Italian government, its
citizens, and instrumentalities, the two naval marines or other
defendants in the admiralty suits, and its officers, employees, agents,
subsidiaries, affiliates … any liability whatsoever on account of the
unfortunate and untimely demise of the fishermen.[130][131][132]
In exchange, the relatives of the fishermen withdrew their criminal
liability claims.
On 30 April 2012, The
Supreme Court of India raised objections to the manner in which the
Italian government struck the deal with the relatives. Justices RM Lodha
and HL Gokhale questioned the
Kerala government as to why it did not oppose the compromise reached
between the families of the deceased fishermen and the Italian
Government and vessel’s owners by stating that “This is a challenge to
the Indian judicial system, this is impermissible. It is most
unfortunate.” Kerala government counsel Gopal Subramanium said the State
was not party to the settlement which was against public policy as
reflected in the mandate of Section 23 of the Evidence Act.[133]
On 2 May 2012, Italy clarified to the Supreme Court of India that the
settlement was not a monetary compensation : "the settlements have been
made by the Republic of Italy to the claimants-plaintiffs not by way of
compensation in the proceedings initiated by them but by way of goodwill
and gesture" adding that "the settlements arrived at between the
Republic of Italy and claimants-plaintiffs could be set aside by this
Court in exercise of its powers under Article 142 of the Constitution of
India"[134]
Italian Navy flags display on Formula One cars
Italian car manufacturer
Ferrari
decided to adorn it's
Formula One race-cars at the 2012
Indian Grand Prix with Italian Navy flags.[135][136][137]
Criticizing the move, Indian Ministry of External Affairs
spokesperson Syed Akbaruddin has been reported to have said: “Using
sporting events to promote a cause which is not of a sporting nature and
one which is sub judice is not in keeping with the spirit of sport.”[138]
On Wednesday 24 October 2012 Ferrari posted a statement on their
website that reads: "Ferrari will carry the flag of the Italian Navy on
the cars driven by
Fernando Alonso and
Felipe Massa in this weekend's Indian Grand Prix. In doing so,
Ferrari pays tribute to one of the outstanding entities of our country,
also in the hope that the Indian and Italian authorities will soon find
a solution to the situation currently involving two sailors from the
Italian Navy."[139]
Shortly afterwards,
Luca di Montezemolo, president of Ferrari, told
Italian TV: “It is the contribution that Ferrari can make to this
story.” Italian Foreign Minister Terzi added: “It shows the support of
the whole country for our sailors.”[140]
India's motor racing federation decided not to raise any objection to
Ferrari racing with the Navy sticker after receiving assurances that the
gesture was not political[141]
Impact
on anti-piracy measures
The episode sparked speculation about the pro and cons of anti-piracy
measures such as the employment of Private Security Contractors and
Armed Military Guards on-board commercial shipping vessels,[142][143][144][145]
and whether either the formers or the latters are preferable. In the
words of Roger L. Philips[146]
" If these two marines are granted State immunity and let go, it
could be an encouraging sign to other seagoing nations to support VPDs
on their own flagged vessels. If State immunity is denied, and VPDs risk
the same liabilities that exist with PMSCs, it could discourage states
from continuing to provide VPDs. In the latter case, shipping companies
would be left to decide whether to hire PMSCs and take on the
liabilities that come with hiring companies in a loosely regulated
industry. The stakes are very high as one report valued the PMSC
industry for piracy alone at around $1 billion in 2011."
European Union High Representative for Foreign Affairs Catherine
Ashton, during talks with Italian Premier Mario Monti, assured him of
the European Union's support to finding a diplomatic solution with
India. According to Ashton's spokesperson Michael Mann, she stated that
'cooperation with the EU and India in the fight against piracy was "a
mutual interest" but stressed that the legal basis for arming cargo
vessels needed to be looked into.'[147][148]
On 26 September 2012, in a speech to
United Nations General Assembly, Italian Prime Minister Mario Monti
stated (Sic)
- International efforts to protect sea lanes and fight piracy can
be effective only if all nations cooperate in good faith, according
to the established rules of the international customary law and UN
conventions, including those protecting the jurisdiction of the flag
of the State in international waters. This august Organization can
expect no less from each member State, and especially from those
members that aim to have a decisive influence on the rules of global
governance. Any erosion of the sending State's exclusive
jurisdiction over servicemen on official duty would jeopardize the
status of our agents on international missions. Consequently, it
would also undermine the sustainability of UN peacekeeping missions.[149]
This rationale was reasserted during the UN
Security Council debate after the 6865th SC Meeting by
both the Italian[150]
and the European Union[150][151][152]
representatives. In response, the Indian representative asserted that
case was sub judice and was being dealt in accordance with
international law.[150]