The highly dramatic Enrica Lexie case has finally seen the end of local proceedings in India. The eight-year-old international maritime case has been the cause of political tensions between India and Italy as both countries fought over the legal jurisdiction of the case and functional immunity of the two accused marines. The case has also raised concerns regarding the practice of employing armed guards for commercial shipping.
On 15th February, 2012 two out of eleven Indian fishermen, Ajesh Binki and Valentine Jalastine, aboard the Indian fishing vessel St. Antony, were killed off 20.5 nautical miles off the Indian coast after they were allegedly fired upon by Italian marines aboard the commercial oil tanker MV Enrica Lexie. Enrica Lexie was travelling from Singapore to Egypt, whereas St. Antony was returning to its destination from its fishing expedition in the Laccadive Sea when without any provocation, men aboard Enrica Lexie began firing for approximately two minutes. The Indian Coast Guard intercepted the Enrica Lexie near the Lakshadweep Islands and compelled it to proceed to the Kochi port. Two Italian marines, Massimiliano Latorre and Salvatore Girone, were taken under judicial custody for interrogation on charges of homicide under Section 302 of the Indian Penal Code (IPC).
Italy challenged the arrest before the Kerala High Court alleging that India does not have the jurisdiction to try the case as the incident happened not in the territorial waters on India but on the International Waters. Italy cited Article 97 of the United Nations Convention on the Law of the Sea (UNCLOS) which says that “In the event of a collision or any other incident of navigation concerning a ship on the high seas”, only the flag state of that ship can launch penal proceedings. Under Art. 214 of UNCLOS, flag states hold sole jurisdiction over oceangoing vessels on the high seas. However, India based its jurisdictional claims on its domestic legislation which empowers the courts to try any person in respect of an offence committed on board a ship registered in India as under Sections 3 and 4 of the IPC, 1860 and Sec.188 of the Code of Criminal Procedure.
On 4 September 2012, the Indian Supreme court heard a petition filed by Italy, on behalf of the Italian Marines, seeking for the quashing of court proceedings in Kerala. They claimed that the two soldiers were entitled to functional immunity and further contended that India had no jurisdiction to try this case. India in its response denied any such immunity due to the lack of any international treaty regarding immunity for Vessel Protection Detachments on board privately owned merchant vessels. On 18 January 2013, the Supreme Court dismissed the Italian Government’s argument stating that not only does the Parliament expressly asserts the sovereignty of this country over the territorial waters under the Maritime Zones Act, but also asserts its authority to determine or alter the limit of the territorial waters. The court also held that only the Indian government, and not the Kerala government, can exercise this jurisdiction.
The Italian Government then sought the help of the International forum—the International Tribunal for the Law of Sea (ITLOS). Italy again argued over jurisdiction for the trial of the case. India rejected Italy’s claim and raised a counter-argument that the International Tribunal doesn’t have the power to hear the case involving two individual nations, an argument which was later rejected by ITLOS.
In August 2015, ITLOS ordered both the countries to refrain themselves on filing any new suite and thus try to solve the existing problem amicably. Consequently, the Supreme Court had ordered a stay on all proceedings in Indian courts during the pendency of the case before the international tribunal. To compensate the victims, the Government of Kerala and the Government of Tamil Nadu had granted aid of 5 Lakh Rupees to the families of the victims. The Government of Kerala had employed the wife of one of the victims. The Italian Government had given a monetary compensation of 1 Crore Rupees to the families of the victims.
On 11 December 2015, Italy filed a “Request for the Prescription of Provisional Measures pursuant to Article 290, paragraph 1 of the United Nations Convention on the Law of the Sea”. On 26 February 2016, India submitted its reply. Following a public hearing held in the Peace Palace, on 29 April 2016, the Arbitral Tribunal adopted an Order in respect of Italy’s Request.
From 8 July to 20 July 2019, the hearing was held at the seat of the Permanent Court of Arbitration at the Peace Palace, The Hague, the Netherlands. The hearing addressed the jurisdiction of the Arbitral Tribunal as well as the merits of Italy’s claims and India’s counter-claims.
On 2nd July 2020, having issued its Award to the Parties, the Permanent of Court of Arbitration rejected India’s claim for exclusive jurisdiction to try the two Italian marines. The international maritime tribunal also held that the marines were entitled to immunity. The tribunal, however, ruled that Italy should pay compensation to India for the loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew onboard of the Indian vessel during the incident. Italy’s claim to compensation for the detention of the marines was also rejected. On 10 August 2020, the Award, with certain redactions made at the request of the Parties, was published on the PCA Case Repository.
The Indian Supreme Court had insisted that it will close its criminal trial in India only after the victims’ families are heard and paid a “hefty” and “adequate” compensation. Reportedly, the Indian Ministry of External Affairs had informed the Supreme Court in an affidavit that an agreement has been reached on Italy paying 8-10 crores of compensation as part of a compromise.
Finally, complying with the ITLOS order on the lack of jurisdiction of India to criminally prosecute the marines, the Government of India urged the Supreme Court to quash the criminal cases against them, as an agreement had been reached. Consequently, on 15th June 2021, the Supreme Court quashed the criminal cases while accepting compensation of 10 crores by Italy to the victims. This was done in the exercise of the Supreme Court’s extraordinary powers under Art. 142 of the Indian Constitution.
This post was written by Khushi, IInd year
