2012 Italian Navy Marines shooting incident in the Laccadive Sea
||The neutrality of this article is disputed. (March 2015)|
|Enrica Lexie Incident|
|Location||nm in International Waters|
|Date||15 February 2012
approximately 16:30 IST (UTC+05:30)
|Deaths||Indian fishermen: Ajesh Binki and Gelastine (Valentine)|
|Perpetrators||Italian Marines: Massimiliano Latorre and Salvatore Girone|
On 15 February 2012, Italian marines operating as part of a Vessel Protection Detachment (VPD) on-board Italian-flagged commercial oil-tanker MT Enrica Lexie, opened fire in the direction of St. Antony, an Indian fishing trawler, and caused the deaths of two crew members.
On 19 February 2012, Indian authorities detained Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, two of the six-member VPD team from the San Marco Regiment of the Italian Navy, after ballistic tests linked weapons impounded onboard MT Enrica Lexie to bullet fragments found in the bodies of the two dead crew members of St. Antony.
The has sparked a conflict of opinions over legal jurisdiction and functional immunity between the governments of India and Italy. United Nations Secretary General Ban Ki-moon has repeatedly stated that the case is a bilateral dispute between India and Italy.
Italy mounted a series of legal challenges to question the legal basis for investigations by Indian authorities and thereby prevent Indian authorities from bringing charges against the Italian marines. Staffan de Mistura, the Italian Deputy Foreign Minister, commented that the Italian naval marines "fired warning shots, some of which went in the wrong direction" saying that the "accidental killing" was an "unfortunate incident which everyone regrets. Our marines never wanted this to happen, but unfortunately it took place". The two marines were later released into the custody of the Italian embassy in New Delhi. Italy has contemplated commencing legal proceedings against India over the incident.
Massimiliano Latorre suffered a mild brain stroke in August 2014 and returned to Italy for medical treatment.
- 1 Background
- 2 Location
- 3 Events chronology
- 4 Indian Coast Guard interception
- 5 Arrest and detention of Italian marines
- 6 Victims
- 7 Investigations
- 8 Court proceedings
- 9 Diplomatic fallout
- 9.1 Criminal jurisdiction, Applicable laws & International agreements
- 10 March 2013 diplomatic crisis
- 11 Other related developments
- 12 Impact on EU-India relations
- 13 Bibliography
- 14 See also
- 15 References
In 2011, in an affort to tackle pirates operating off the coast of Somalia & Yemen, the IBF International Transport Workers' Federation (ITF) designated the area adjacent the coast of Kerala and the Laccadive Sea as part of a zone at high risk of piracy attack that extends from the coast of Somalia to the east, to the western and southern coast of India and to the 76th meridian, and to the south to the 16th parallel.
The Indian Coast Guard stated that while it was accepted procedure to report piracy events or suspicious activities immediately to Maritime Rescue Coordination Centre (MRCC), the MT Enrica Lexie continued sailing for 70 km on its route to Egypt without reporting the incident. The ship reported the shooting only when contacted by the Coast Guard about two and a half hours after the incident, upon which they were asked to proceed to Kochi.
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, opined that the crew and armed guards of Enrica Lexie had failed to fully implement IMO circular MSC.1/Circ.1334 (23 June 2009) and procedures issued through IMO BMP4 while transiting high risk areas:
- "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?"
The MV Enrica Lexie was travelling from Singapore to Egypt with a crew of 34 including 19 Indians and accompanied by six Italian navy marines, while, according to Indian sources, the fishing trawler named St. Antony had left Neendakara in Kerala with a crew of 11 to fish, according to Indian sources, for tuna in traditional Indian fishing grounds within the Laccadive Sea.
The reconstruction of events on board the Enrica Lexie by investigators was hampered by data missing from the voyage data recorder (VDR) of the Enrica Lexie. Whilst the Directorate-General of Shipping was not able to immediately recover Long-Range Identification and Tracking (LRIT) data, the Coast Guard was able to compile satellite based AIS data plots for all ships.
According to the Indian Coast Guard, Indian government sources and the crew of the fishing boat St. Antony, the incident occurred at approximately 16:30 IST (11:00 UTC) on 15 February 2012, 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 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 15 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 before it crossed the Lakshadweep archipelago and escorted her to Kochi for investigation. The vessel has anchored at Kochi on 15 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".
India's Ministry of Shipping guidelines SR-13020/6/2009-MG(pt.) dated 29 August 2011, in accordance with Section 2(28) of the Indian Customs Act, Notification No. SO 67/E (1981) of the Government of India and Article 33 of UNCLOS, requires commercial merchant vessels with PCASPs and VPDs to obtain a Pre-Arrival Notification for Security (PANS) clearance prior to entrance and transit through either the Indian Economic Exclusive Zone (EEZ) or the Indian Search and Rescue Region (ISRR). Indian customs waters are defined as the waters extending into the sea up to the limit of contiguous zone of India under section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976).
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.
Umberto Vitelli, the captain of the Enrica Lexie, in his deposition to Indian investigators expressed surprise at the marines' decision to open fire : "When they (the marines) were standing at starboard with weapons, I never thought that they would start (to) fire". He went on to add that it was only after he heard gunshots that he increased to full speed, sounded the foghorn and the general alarm. In his statement to Kerala police, James Mandley Samson, chief officer of the Enrica Lexie said : "I took binoculars ... I couldn't see any person with weapons in the boat,"
Italian news agencies quoted Vice-Captain Charles Noviello as saying : "I'm sure the boat that came close was not the St. Antony. They do not match some details of the vessel I have seen and what I have been shown in the picture of the officials of the Indian Merchant Navy." In a telephone interview with Agenzia Nazionale Stampa Associata (ANSA), he added "I remember the cabin, where there was the helm, was of a different color from what I saw later in the picture." Noviello, who was present at the time when Massimiliano Latorre and Salvatore Girone opened fire, added : "none of the people on the boat fell to the ground(...) the boat was 40–50 meters from the tanker (...) I saw that there were 5 or 6 people on board, but I'm not sure if it was more." The findings of the Piroli investigation report - by Italian military investigators who examined photos taken during the incident - confirmed that the St-Anthony fishing boat matches those on the photos and that they were unable to see any evidence of weapons on-board the fishing vessel.
- "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."
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 that no records were 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. The judge also remarked 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 was submitted.
Ajesh Binki and Valentine aka Gelastine, natives of Tamil Nadu and Kerala respectively, were allegedly shot dead by Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, belonging to the San Marco Regiment of the Italian Navy.
Depositions given by the two marines to Indian investigators regarding the use of live-fire in the direction of an approaching fishing boat stated that Massimiliano Latorre fired 12 rounds of ammunition and Salvatore Girone fired eight in two bursts as warning shots.
Speaking to an Indian television channel 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".
A statement by India's ministry of external affairs denied that the fishermen were armed. Indian Coast Guard (Western Region) Regional Commander S P S Basra said : "Firing on unarmed fishermen was not right. Our waters are not piracy waters, they are fishing waters. We have not witnessed any piracy incident in Indian waters for a long period",.
In June 2013, Italian media reported that the 4 other marines were not in the citadel of the Enrica Lexie after the general alarm was sounded and speculated that the two marines held in India might have taken responsibility for the shootings while the real shooters might also include other members of the VPD team who disappeared from public view as soon as they returned to Italy. La Republicca newspaper published portions of the Alessandro Piroli military investigation report which clearly states that the bullets in bodies of the two Indian fishermen were manufactured in Italy and shot from the barrels of guns assigned to two soldiers on-board Enrica Lexie : First Corporal Andronico Massino and Sergeant Vogilano Renato.
Indian Coast Guard interception
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. The Indian Coast Guard launched search operations with a Dornier Do 228 (ex-747 Sqn CG) maritime surveillance aircraft from Coast Guard Air Enclave (CGAE) Kochi and by deploying two Offshore Patrol Vessels ICGS Samar and ICGS Lakshmi Bai to intercept the Enrica Lexie. Indian Coast Guard operations were directed from District Headquarters DHQ-4 (Kerala) at Kochi with assistance from DHQ-12 (Lakshadweep & Minicoy) at Kavaratti.
After the incident, the Enrica Lexie continued sailing for almost three hours and covered a distance of 39 NM from the original position. It was also stated that the vessel had not immediately reported the incident to the IMB piracy reporting centre, which is the mandatory procedure. Only after interception in the area east of Kalpeni & Minicoy islands in the Lakshadweep archipelago and being forced to proceed to Kochi port by the Indian Coast Guard did the vessel send an e-mail reporting the incident to her owner at approximately 19:17 IST.
The Italian ambassador to India stated that he wanted to underline that the Enrica Lexie had voluntarily proceeded to the port of Kochi.
The Government of India defines "Indian customs waters" as the "waters extending into the sea up to the limit of contiguous zone of India under section 5 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (80 of 1976) and includes any bay, gulf, harbour, creek or tidal river;". The exercise of prescriptive jurisdiction within the Indian contiguous zone under Section 2(28) of the Indian Customs Act allows Indian customs authorities to arrest people (104), stop and inspect any ship (106), and open fire if a ship fails to stop (115(1)(c).
The Rules of Engagement followed by Indian Coast Guard and Indian Navy when investigating suspect ships within the Indian EEZ starts with the examination of paperwork of the vessel, cargo and crew/passengers. In the event where a vessel flees or does not cooperate, she may be pursued and brought to by force, if necessary. A graduated increase in force is to be used till the vessel surrenders. The Italian captain and owners of the Enrica Lexie were instructed to head for Kochi port. Although the Enrica Lexie was in contact with the Italian Navy Maestrale-class frigate "Grecale" (F571), the location of the incident : within the Laccadive Sea between India's Lakshadweep archipelago and the Malabar Coast of Kerala on the Indian peninsula; made intervention by Italian Navy an impractical if not impossible option. Indian military footprint maintained in the immediate vicinity of the incident zone includes capability to restrict or interdict passage through the Nine Degree Channel.
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." Terzi also tweeted: "In no case should the ship have entered Indian waters (...) The polemics on responsibility I leave to others."
On 30 March 2013, Indian foreign minister Salman Khurshid categorically rejected the claims of subterfuge made by former Italian Foreign Minister Giulio Terzi and Deputy Foreign Minister Staffan de Mistura, that the Italian ship Enrica Lexie had been lured into Indian territorial waters by deception. He indicated that the Italian government has never substantiated the claims of subterfuge with evidence. Kurshid appealed to Italian media to refrain from abetting controversies.
Arrest and detention of Italian marines
Kerala Police delayed boarding the Enrica Lexie immediately after the ship arrived at Kochi in order to complete diplomatic and legal formalities. Kerala Police, accompanied by Italian diplomats and investigators, boarded the Enrica Lexie after it was brought to quay at Kochi port on 19 February 2012, more than 79 hours after the shooting incident.
Two Italian soldiers, Massimiliano Latorre and Salvatore Girone, were remanded to judicial custody for interrogation on charges of homicide under Section 302 of the Indian Penal Code. 
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".
The bodies of the two fishermen, Gelastine (45) and Ajesh Binki (25), were brought to Neendakara harbour late on the night of 15 February 2012 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 Kanyakumari district for burial.
On 27 February, Freddy J, the owner of the fishing boat, St. Antony, filed a petition in Kerala High Court seeking 7,200,000 rupees (US$ $145,000) for damage that the boat suffered and losses incurred as a result of shooting. Indian authorities have retained the St. Antony fishing boat as judicial evidence.
Indian government compensations
The Kerala government announced a solatium of 500,000 Indian rupees (€7.500) to the families of each of the victims, while the Tamil Nadu government announced a solatium of 500,000 rupees (€7.500) to the family of Ajesh Binki.
On 21 February, the cabinet of the state government of Kerala, decided to give a government job to Dora, the widow of fisherman Gelastine. On the same day, the family of fisherman Gelastine filed a petition in Kerala High Court seeking 10,000,000 rupees (US$ $200,000) in monetary relief from the Italian shipping company that owned the ship Enrica Lexie, an amount they consider necessary for Gelastine children's education and future requirements. On 23 February, two sisters of fisherman Ajesh Binki also filed a petition in Kerala High court seeking monetary relief of 20,000,000 (US$ $400,000).
Italian government settlements
On 24 April, the Italian government concluded an out-of-court settlement in exchange of the relatives of the fishermen waiving their criminal liability claims. Italy 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. 10 million so as to enable the legal heirs of the victims to rebuild their lives. The "without-prejudice offer" did not fasten on the Italian government (...) any liability whatsoever on account of the unfortunate and untimely demise of the fishermen.
On 30 April, 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.
On 2 May, Italy clarified to the Supreme Court of India that the "without-prejudice offer" 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"
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), ISRO, NTRO and Trivandrum Medical College Hospital have assisted the police investigators with technical and logistical support.
Based on postmortem carried out on 16 February 2012, Kerala police registered a case of murder against the armed guards of the Enrica Lexie. The pathologist's autopsy revealed that bullets of 5.56mm NATO bore were used for the killing of the two fishermen. A trail of 15 bullets was found on the fishing boat, while one bullet each was found in the two dead bodies.
Given the diplomatic issues and international media coverage, the Kerala Police formed a high level Special Investigative Team on 21 February to probe into the incident.
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.
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). 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 insist 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. Marine investigators use VDR data to identify command responsibility aboard seagoing vessels.
On 1 April 2013, the Indian government issued a notification giving the National Investigation Agency (NIA) charge of conducting investigation into the Italian marines case. The NIA, India's federal anti-terrorism agency, can access classified information such as satellite imagery, maritime radar tracings, sonar recordings and radio intercepts to reconstruct the chronology of events leading to the death of the two Indian fishermen. The NIA can also conduct hearings of officials from civilian and defense establishments in India. The NIA obtained court permission to obtain depositions from witnesses who were on board the Enrica Lexie when the shooting incident occurred: Master of the ship Vitelli Umberto, Master SN of the ship Noviello Carlo, Chief Officer of the ship James Mandley Samson, Second Officer Sahil Gupta, able-bodied seaman Fulbari and ordinary seaman Tirumal Rao; in addition to the other four marines: Seaman Voglino Renato, Seaman Andronico Massimo, Third Corporal Fontano Antonio, Corporal Conte Alessandro.
On 4 April 2013, the National Investigation Agency (NIA) filed a FIR against the two Italian marines for allegedly killing two fishermen off the coast of Kerala. The NIA has charged the marines under IPC sections 302 (murder), 307 (attempt to murder), 427 (mischief) along with section 34 (common intent) in addition to booking them under the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002.
In June 2013, Italy decided that it was unwilling to abide by an earlier commitment made in Kerala High Court, recorded within JUDGMENT WP(C) No.6083 OF 2012(I), to produce the four marines for questioning in India by the NIA. Indian authorities repeatedly appealed to Italy to cooperate with the Indian judicial process so as to rapidly bring the case to trial.
In October 2013, India's law ministry opined that the Code of Criminal Procedure (CrPC) has no provisions for its application outside India. The Italian government's refusal to allow the NIA to interview and cross-examine four marines in India has effectively halted any further progress in the case.
In November 2013, the Indian Supreme Court directed the NIA to interview and accept witness depositions from 4 Italian guards via video-conferencing facilities set-up within the Indian Embassy at Rome.
In January 2014, the Indian Law Ministry and Home Ministry accepted the National Investigation Agency (NIA) recommendation to prosecute the Italian marines under the Suppression of Unlawful Acts against safety of Maritime Navigation And Fixed Platforms on Continental Shelf Act (SUA).
On 7 February 2014, the NIA was directed by the Indian Home Ministry to dilute the charges against the Italian Marines from 'murder' to 'violence' in order to circumvent the mandatory death penalty if the marines are found guilty of homicide. The Marines will be charged under a new provision of the SUA section [3.1.(a)] which states that "whoever unlawfully and intentionally commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine." Italy criticized the Indian decision to equate the incident to an act of terrorism as 'unacceptable' because it was tantamount to branding Italy as a terrorist State," Indian prosecutors attributed delays in bringing the case to trial to the refusal of 4 other Italian Navy marines to appear at before investigators in India as promised earlier.
On 7 March 2014, the Indian Home Ministry withdrew permission for NIA to investigate case under anti-piracy charges after the Indian Government decided not to prosecute the case under anti-piracy provisions of SUA laws.
On 26 February 2012, a five-member team of Italian naval officials examined the fishing boat St. Antony berthed at Neendakara fishing harbour. The Italian team consisted of Major General Paolo Romano, Admiral Alessandro Piroli, Major Luca Flebus, Major Paolo Fratini and Commander Geam Paul.
"Italian Prosecutor Elisabetta Ceniccola opened an investigation for criminal negligence 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." 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. He added: "Whatever be the judicial verdict in India, the marines would be tried for murder in Italy".
On 10 May, prosecutors Cennicola and her colleague Francesco Scavo interviewed the other four marines after they had arrived back from India. Seaman Voglino Renato, Seaman Andronico Massimo, Third Corporal Fontano Antonio and Corporal Conte Alessandro reportedly replied they didn't witness the shooting. The actual interrogations, the computer of the military team and digital photographs remain classified.
On 3 January 2013, when Massimilano Latorre and Salvatore Girone 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. 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 had arrived to Rome so far.
On 20 March 2013, the two marines were summoned by a military tribunal in Rome when they returned for a second time to Italy to vote in the Italian general elections. Military Prosecutor Marco De Paolis has been tasked with deciding whether the marines should be charged in Italy or whether the case against them should be discarded.
Alessandro Piroli 2012 military investigation report
On 6 April 2013, a military investigation report of the Enrica Lexie shooting was leaked to the media in Italy. The report compiled by Rear Admiral Alessandro Piroli contains facts-based opinions of the five-member team of Italian military investigation officials who arrived in India immediately after the Enrica Lexie shooting incident. The Italian team composed of Major General Paolo Romano, Admiral Alessandro Piroli, Major Luca Flebus, Major Paolo Fratini and Commander Geam Paul, reported their findings to the military tribunal in Rome. The Alessandro Piroli investigative dossier was formally remitted to the Italian government on 11 May 2012.
Italian media questioned the intentions of the Mario Monti Government in keeping the report secret and expressed surprise that salient facts uncovered by the military investigators have been shielded from public scrutiny. The Italian Government was severely criticized for allowing controversies to pollute the general public's understanding of the happenings on board the Enrica Lexie oil tanker despite the findings of the Rear Admiral Alessandro Piroli's report about the time & location of the incident as well as the chronology of events and the Italian military opinion on the ballistic & forensic examination of the weapons and ammunition which were involved in the incident. The leaked portions of the Alessandro Piroli report have already set to rest numerous speculative controversies that have surrounded the shooting incident involving the VPD team of the Enrica Lexie.
The investigation summary of the report, written in Italian, includes several details of the incident.
- "Comparing photos of the suspect vessel taken from on-board Enrica Lexie and those of the fishing boat St. Antony, you can observe a substantial coherence between the descriptions of the vessel involved in the event with Enrica Lexie and St. Antony, in terms of boat type, size and color."
- "A comparison of the photographs recorded during the event on 15 February, with those taken during the survey of St. Antony on 26 February highlights a substantial compatibility between the photos analyzed."
- "The fishing boat came from the starboard side of Enrica Lexie, and therefore had the (navigational) right of way."
- "Despite having the (navigational) right of way, a small boat easy to steer remains on a collision course with an oil tanker up to less than 100 meters, exposing themselves to huge risks for navigation."
- "The commander of Enrica Lexie has put in place only a part of passive defense measures recommended (in IMO Best Management Practices) to avoid the attack of pirates. It is limited to increase speed (one knot) without any manoeuvres to change course heading and approach. He pressed whistles and sirens only in the terminal phase of action."
- "Procedures require instead that the tanker ship immediately change course quickly and continue with evasive manoeuvres to counter a possible course of attack or the risk of a collision."
- "One could anticipate the use of sirens on board and make use of high-pressure water jets. Also it would be appropriate to pursue a radio contact with the fishing vessel on VHF emergency channel (channel 16) at least to resolve doubts about the bearings or on the routes followed by the two units."
- "stringent coordination between the ship captain and the Nuclei Militari di Protezione (NPM) VPD team should have resulted in joint management of the event and the identification of best solutions to be implemented."
- "Ultimately the ship with its own resources could apply improved forms of coordination and support action to combat piracy."
- There are no details about the type of weapons that the group identified nor about what "posture aimed at making the collision."
- "analyzed four bullets, two found on the fishing boat and two bodies of the victims (...) showed that the ammunition is of caliber 5.56 mm NATO made in Italy. The tracer extracted from the body of Valentine Jelestine were fired from the rifle with serial number assigned to Seaman Andronico Massimo. The bullet extracted from the body of Ajiesh Pink were fired from the rifle with serial number assigned to Seaman Voglino Renato."
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The Laccadive Sea region comes under the jurisdiction of the Kerala High Court and Indian Supreme Court depending upon the nature and location of the crime-scene.
Following their arrest on 19 February 2012 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. 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 21 February, the Italian Marines filed a plea in Kerala High Court to quash the charges against them. 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 marines weapons. Separately, the judge who originally remanded the two Italian Marines to police custody, extended their police custody to eleven days. The shipping company also filed a plea to get the ship released
On 22 February, the Kerala High Court ruled that the ship Enrica Lexie could not 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.
On 23 February, 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 had no authority to conduct investigation in the case and that courts in India had no jurisdiction as the incident had 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. 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. 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 21 February seeking a stay on proceeding and quashing of the FIR.
On 27 February, 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. In the criminal case, counsel for the petitioners Advocate Suhail Dutt, a Supreme Court lawyer, submitted that an investigation had 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. The Coast Guard submitted before Kerala High Court that the two marines fired 20 rounds at the fishing boat. The state government also submitted that the arrested Italians had refused to wear the civil dress instead of their Italian naval uniform while presenting themselves before the courts.
On 28 February, 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. The Coast Guard filed a statement in the Kerala High Court pointing out that when 15 February 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. 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. 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.
On 29 February, the Kerala High Court 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. In the criminal case, the High Court expressed displeasure regarding serious defects in the petition that was filed by Italian Consul-General on 23 February and said it will look at the petition only after these errors have been corrected. The Sessions Court in Kollam extended police custody of the two Marines until 5 March.
On 1 March, 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.
On 2 March, 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.
On 4 March, 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.
On 18 May, after examining 60 witnesses Kerala police filed a 196-page charge-sheet, including forty-six material objects and 126 document annexes, 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 were 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 was also invoked in connection with the incident. The charge sheet included exhibits seized from the Enrica Lexie, notably the Voyage Data Recorder (VDR), six Beretta guns, two mini-light machine guns, 1690 bullets and the deck-log of the ship and GPS.
On 2 June, the two Italian marines were released after 105 days in judicial custody under strict bail conditions and assurances from the Italian Government that they would remain in India. The bail conditions set by the Kerala High Court included a bond of Rs. 10 million each with two Indian solvent sureties for a like amount. The marines had to stay within a 10 km radius of the Kochi Police Commissioner's office and appear before the Commissioner on all days between 10:00 and 11:00 and as and when required. In a statement released by Italy's Prime Minister Mario Monti, he expressed "great satisfaction" over the release on bail of the two marines.
On 4 September, 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 its verdict.
Speaking to the media at Kochi on 15 December, 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". 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.
On 20 December, the Kerala High Court agreed 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. 60 million (more than 800 thousand Euro) 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 15:00 IST on 10 January 2013.
On 4 January 2013, the marines flew back to Kochi airport, "keeping their words of Italians and trusting in justice". On arrival, they surrendered their passports and appeared in front of the court, which in turn gave directions to release the Rs. 60 million bail, and for the marines to appear before it on 15 January 2013, then postponed to 18 February.
On 18 January, the Supreme Court of India dismissed the Italian government's plea that India had no jurisdiction over the case. However, it ruled that the state of Kerala did not have authority to adjudicate in the case, since the jurisdiction of the state extended to only 12 nautical miles whereas the incident occurred at 20.5 nautical miles. The Supreme Court in its judgement, also ordered that a special federal court be set up after consultations with the Chief Justice of India, to try the two marines in accordance with Indian maritime laws and UNCLOS 1982. It ruled that the marines be accommodated at a place within the control of the Italian embassy in New Delhi. The marines had to report to the Chanakyapuri police station once a week. The court directed that the passports held by the Kollam trial court be handed over to the Union Home ministry. In addition, the SC observed that sovereignty is not "given" but it is asserted while holding that the Italian marines allegedly involved in the killing of two Indian fishermen off the coast of Kerala can be prosecuted under municipal laws. Justice J Chelameshwaran wrote: "I am of the opinion that sovereignty is not 'given' but it is only asserted. No doubt, under the Maritime Zones Act, Parliament expressly asserted sovereignty of this country over the territorial waters but simultaneously, asserted its authority to determine/alter the limit of the territorial waters" According to ruling, the Italians' legal team would be allowed to once again raise the conflict of jurisdiction in front of the new special court; should this latter rule in favour of Indian jurisdiction, it will then pass to deal with the incident actual matter.
On 16 April 2013, the Italian government objected to the case investigation being transferred from the Kerala based SIT to the NIA in New Delhi.
On 27 May 2013, all the documents and material objects pertaining to the Enrica Lexie incident were transferred from the custody of the Kollam District and Sessions Court to the Supreme Court of India through the Kerala High Court under police escort.
On 14 June 2013, Italian media cited Staffan De Mistura saying that the Indian Supreme Court wanted the remaining members of the VPD team of the Enrica Lexie to testify before the trial court in New Delhi and file depositions before the NIA. Seaman Voglino Renato, Seaman Andronico Massimo, Third Corporal Fontano Antonio and Corporal Conte Alessandro were allowed to return to Italy only after Italy gave a sovereign undertaking to produce them before an Indian court whenever necessary.
In November 2013, the Indian Supreme Court accepted a petition from Italy to allow witness depositions from 4 Italian guards via video-conferencing facilities set-up within the Indian Embassy at Rome.
On 18 February 2014 the Supreme Court demanded the Indian Government to file an affidavit by 24 February specifying the law (i.e. either Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act or standard Penal Code of India) under which the Italian Marines are to be prosecuted. Objecting to the lengthy course of legal proceedings as well as to suggestions that the marines may be tried under SUA laws, Italy recalled its ambassador to Italy for consultations and also summoned the Indian ambassador in Rome to register a protest.
On 24 February 2014, the UPA coalition Government informed the Supreme Court that it had decided not to prosecute the marines case under SUA anti-piracy laws. Lawyers for the Italian Government had filed a petition questioning India's jurisdiction to try the case in India.
On 7 February 2014, The Italian Government petitioned the Supreme Court of India for a stay in proceedings arguing that the NIA did not have jurisdiction to investigate the case. The Supreme Court ordered a halt to all proceedings by the Special Court and directed the Attorney General of India to respond to the legal challenge on jurisdiction introduced by Italy before 1 July 2014. The Special Court has deferred all proceedings to 31 July 2014.
On 16 February 2012, 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. The next day, the then-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. 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.
- "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."
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.
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 had reserved its verdict on the question of the court's jurisdiction, which it had heard on 4 September 2012. 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".
Italy threatened a diplomatic offensive in order to obtain the release of the Marines. Italian Foreign Minister Giulio Terzi and Deputy Foreign Minister Staffan De Mistura mentioned that legal and political-diplomatic initiatives would be initiated at the international level. Italian media reports claimed that Italy would escalate pressure by taking India to the International Court of Justice in The Hague to settle the dispute if a solution was not found by mid-January 2013.
Provocative press statements released to the Italian media and incessant tweeting on Twitter by the Italian Foreign Minister Giulio Terzi stoked controversies and became a major impediment to finding a quick solution.
On 29 April 2013, the Indian Foreign Minister Salman Kurshid expressed his willingness to work with the new Italian Foreign Minister Emma Bonino. Salman Kurshid also said that court proceedings in India are dependent on the presence of witnesses which Italy is obligated to produce : "The only delay may result from Italian witnesses who are not in India and have to (...) testify, (...) Much will depend on the timing of lawyers (the Italian part) in presenting the witnesses."
Emma Bonino adopted a non-controversial behind-the-scenes approach to dealing with the case and repeatedly stated hope that the case of two Italian marines awaiting trial in India for allegedly killing two Indian fishermen would reach a "fair, positive and acceptable solution".
On 30 May 2013, EU High Representative Baroness Ashton filed a status report on the Italian marines case : "The European Union has systematically been associated with efforts to resolve the unfortunate case of the two marines detained in India. It has refrained from commenting on the legal merits of the case as these are the subject of judicial proceedings.(...) A mutually acceptable solution should be found through dialogue and in respect of international law."
On 3 July 2013, the Indian External Affairs Ministry spokesperson commented about Italy's refusal to send the witnesses who were summoned to India by the Special Court handling the Enrica Lexie case by stating : "it is always our desire to try and quickly resolve this case which is unique in nature. It is sui generis. We do not want this to impinge on other aspects of our relationship (with Italy). We stand ready to work with Italy to try and facilitate in a manner which is possible under our judicial system so that an outcome which is judicially determined is arrived at the earliest," and went on to add "As to whether there are some shortcomings or inability of any witnesses to come, I suggest you need to contact those who are in a position to make those witnesses come, and that in this case is the Italian government. After all those witnesses etc., may also be employees of that government and it is easier for them to facilitate that. We can only make those requests."
Following Italy's refusal to abide by an undertaken given to Indian courts to return 4 Italian Navy soldiers to testify as witnesses, Indian officials warned that such a stance by the Italian government was "delaying the trial and jeopardising the future of two of their accused colleagues now lodged here".
Italian Deputy Foreign Minister Steffan de Mistura, cited "political tensions" in Italy as the reason for the inability to send the 4 marines to India. "It is an emotional matter in Italy. It will be difficult to explain that not only two marines are here [in India] but the other four will be also sent", Mistura said on 19 September 2013 after meeting Indian Foreign Minister Salman Khurshid. Indian officials turned to the Law Ministry and the Attorney General for guidance. The case has embittered diplomatic relations between the two countries.
On 23 September 2013, Indian courts ordered the release of two German crew members – Master and Chief Mate – of MV Grietje, an Antigua Barbuda-flagged heavy lift cargo ship owned by SAL Heavy Lift, Germany. The vessel had allegedly caused the death of an Indian fisherman after an accidental collision. The charge against MV Grietje could not be proved, investigations of the vessel did not produce any traces of a collision either, and both seafarers were acquitted. Indian diplomats pointed out that for the Italian marines on Enrica Lexie the charges were much more serious : "The shooting down of two of our nationals and causing death to an Indian fisherman as a result of a collision are by no stretch of imagination similar",.
In January 2014, European Commission President Jose Manuel Barroso said that the issue of Italian marines in India may have an impact on the European Union-India relations. Germany's ambassador to India Michael Steiner, said a smooth handling of the case is in the interest of Italy, India and the European Union
On 20 February 2014, the Italian authorities were informed that a live bullet was found in the mailbox of the Indian Embassy at Rome. Indian authorities demanded that the Italian Government provide improved security and guarantee the safety of Indian Government employees as per Italy's obligations under the Vienna Convention on Diplomatic Relations (VCDR). Indian authorities also disclosed that they had received a large amount of hate mail in connection with the ongoing Italian marines case in India.
On 4 March 2014, the United Nations High Commissioner for Human Rights expressed concern "about the respect of human rights" of the two Italian Marines.
On 24 April 2014, Federica Mogherini, the newly appointed Italian Foreign Minister following the collapse of the government of Prime Minister Enrico Letta, announced a new phase in the case of the Italian marines. Staffan de Mistura was withdrawn as special envoy and replaced by Daniele Mancini. Mogherini briefed the Italian Senate saying that unless India cooperates by negotiating an end to the case, Italy would seek international arbitration.
On 4 June 2014, Sushma Swaraj, India's newly appointed Minister for External Affairs following the 2014 Indian general elections, responded to Italy's demand on a negotiated political solution to the Italian marines case by saying that she will not interfere in the legal process which was sub judice.
On 6 January 2015, a few days before his visit to India, United Nations Secretary General Ban Ki-Moon stated he was still "concerned that the (marines) issue remains unresolved thus sharpening tensions between two important member States." He reaffirmed his invitation to both governments to reach "a reasonable and mutually acceptable solution".
On 14 January 2015, the European Parliament adopted a resolution calling for either the repatriation of both marines or the row settling through international arbitration. India disapproved and stated, through the Ministry of External Affairs spokesperson Syed Akbaruddin and through the Indian embassy in Brussels, that "Under these circumstances, the European Parliament would have been well advised not to adopt the Resolution".
Criminal jurisdiction, Applicable laws & International agreements
The Italian Government opined that the VPD team is protected by functional immunity for their actions and that they can only be tried in the flag-State country (Italy) since the shooting incident occurred in International Waters albeit within India's Contiguous Zone. India refused to accept Italy's claim that the VPD team were discharging sovereign functions for the Republic of Italy at the time of the incident because the armed guards were privately contracted for the protection of commercial interests of Naples-based Dolphin Tankers whose parent company is Fratelli D'Amato.
By invoking Objective Territorial Principle and Passive Nationality Principle, India used extraterritorial provisions of its domestic laws to create a judicial precedent by holding the privately contracted armed maritime guards deployed on a merchant vessel accountable for actions wherein the consequences were felt in the littoral State. The Indian Supreme Court explained that India had extraterritorial jurisdiction to try the case and cited the Maritime Drug Law Enforcement Act, 46 U.S.C. 70501-70507 of United States of America and Art.13 of the Law on the Territorial Sea and the Contiguous Zone of 25 February 1992 of People's Republic of China (PRC) to show settled State practice to claim jurisdiction over the contiguous zone. In France Art.113-6 to 113–12 of the Penal Code asserts general jurisdiction over crimes by, or against, the country's citizens, no matter where they may have occurred.
One of the most prominent law journals in the United States Cornell International Law Journal (ILJ) carried a detailed legal analysis of the Enrica Lexie incident centred on matters of sovereignty, immunity and jurisdiction in a report titled "Criminal Jurisdiction over Maritime Security in the Indian Ocean". According to the report the judicial proceedings reflect an "assertion of Indian sovereignty over its coastal waters, and one that seeks to cover a previously untouched area of maritime security" and goes on to conclude that "India wants to press its maritime sovereignty to the limit through an intersection of UNCLOS grants and readings of its own statutes". 
If the case goes to arbitration on the question of jurisdiction, while Italy will need to prove that it has exclusive jurisdiction, it will suffice for India to demonstrate that it also has jurisdiction.
International Maritime Organisation (IMO)
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". 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".
The IMO's Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) was passed in 1988 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 Convention states that "whoever unlawfully and intentionally" commits an act of violence against a person on board a ship has violated the Convention and is subject to punishment for that act. According to some experts, the SUA (Suppression of Unlawful Acts) Convention allows for India to claim jurisdiction under Articles 6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1) and 6(1)(3).
United Nations Convention on the Law of the Sea (UNCLOS)
In the aftermath of the incident, both Italy and India cited provisions and limitations of the UNCLOS in order to establish jurisdiction over investigation and prosecution of the alleged crime without coming to any agreement.
The Italian government has claimed that the marines are elements of the State and that they enjoy absolute sovereign immunity. In response, India has pointed to the absence of any international treaty regarding immunity from prosecution for Vessel Protection Detachments (VPD) on board privately owned merchant vessels.
Bilateral agreement between Italy and India on the transfer of sentenced persons
Italian and Indian officials have hinted that the two Italian marines, if convicted, could serve the rest of their jail term in Italy under provisions of the Indo-Italian prisoner exchange treaty which was hurriedly ratified in November 2012. Under the terms of the bilateral "Transfer of Sentenced Persons" agreement, the Italian soldiers may qualify to serve their sentence in their country of origin only if the Government of Italy accepts the verdict passed by the Indian Courts as final in both countries. On 6 June 2013, Staffan De Mistura indicated that the marines will not face any punishment in Italy. Speaking to the media the Italian Special Envoy said : "All the indications we have received give us reason to hope there will be a rapid and fair trial for our two riflemen and that the affair will soon be over, (...) This should allow the men to return to Italy and resume their posts,".
March 2013 diplomatic crisis
See also 2013 Italy India diplomatic tensions
On 11 March 2013, a diplomatic dispute erupted after the Italian Foreign Ministry reneged on its promise given to the Supreme Court of India and stated that the two soldiers would not return to India to face murder charges due to what the Ministry called Indian violations of international rights.
On 21 March, the Italian government reversed its decision and returned the Marines to India. According to Italian Prime-Minister Mario Monti: "The government decided, also in the interests of the marines, to maintain the commitment taken when they were granted leave to take part in the elections to return to India by 22 March"
Italian football t-shirts for marines
In June 2014, before the start of the 2014 FIFA World Cup, the Italian Football Federation released two official blue t-shirts printed with the names of the captured marines, to express the Federation's support to them. The t-shirts were then shown to the marines in India by the Italian defence minister Roberta Pinotti, via video conferencing.
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".
On 24 October, 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."
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".
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.
Link to Finmeccanica VIP helicopter bribery scandal
Following the arrests made at Finmeccanica in February 2013 over kickbacks paid to enable the sale of VIP helicopters to India and Italy's refusal to allow the marines to return to India in March 2013, political commentators and mainstream media have suggested a link between the two events.
Questions about the ongoing investigations in Italy into the Finmeccanica Choppergate scandal, relating to the sale of 12 AgustaWestland AW101 VVIP helicopters, and the diplomatic spat between Italy and India over the killing of Indian fishermen by Italian marine guards, were raised in the Indian Parliament by several leading politicians.
India's main opposition parties rejected the status quo resulting from the unilateral action taken by the Italian government as diplomatic blackmail and warned the UPA government not to use the lowering of diplomatic relations between India and Italy as an excuse to delay the Indian investigations into the recipients of kick-backs from the helicopter deal.
The UPA coalition government has been accused in India of purposely escalating the diplomatic spat involving the Italian marines into a full-blown crisis so as to affect government-to-government ties. The downgrading of diplomatic relations would make it harder for Indian investigators to seek judicial cooperation from Italian authorities and as a consequence automatically slow down the pace of Indian investigations. The UPA coalition government is keen to delay any politically damaging revelations from the helicopter bribery scandal involving politicians from the Congress party until after the Indian general elections in 2014.
India's Defence Minister A.K. Antony Monday confirmed corruption allegations by stating: "Yes, corruption has taken place in the helicopter deal and bribes have been taken. The CBI is pursuing the case very vigorously".
Finmeccanica and its subsidiaries Alenia Aermacchi and AgustaWestland have all been placed on an anti-corruption watch-list till the closure of the investigative process.
Impact on anti-piracy measures
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 regarding the "privately contracted armed guards". 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.'
- "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. (...) 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."
This rationale was reasserted during the UN Security Council debate after the 6865th SC Meeting by both the Italian and the European Union representatives. In response, the Indian representative asserted that case was sub judice and was being dealt in accordance with international law.
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, and whether either the former or the latter are preferable.
On 2 May 2013, the Contact Group on Piracy off the Coast of Somalia (CGPCS) held its plenary meeting in New York, where India, along with Egypt and Oman, reiterated their demand for review of the High Risk Area, which it had raised in earlier meetings too. "This time, we pointed out with a lot of facts and figures that there had been no incidents reported east of 65-degree since March 2012. And even that incident was 450 nautical miles from the Indian coast", said a senior Ministry of External Affairs official. According to the Indian Government, it has become necessary to protect the interest of the Indian fishermen operating in the Laccadive Sea, whose livelihood gets hit by large cargo ships navigating these waters close to the Indian coast, apart from ensuring that sailing through the Arabian sea does not mean heavy insurance premiums for the cargo vessel operators. "The Enrica Lexie incident, which led to the shooting of two Indian fishermen, was a direct result", observed a senior government official. The fact the incident took place inside the Extended Zone of the High Risk Area has been suggested could explain why the Italians were so wary of pirates and quickly resorted to weapons. "There is a lot of opposition from the insurance industry groups, since a reduction in high-risk area would mean lesser number of ships requiring the specific insurance that has high premium", said the senior official.
On 10 February 2014 EU High Representative Catherine Ashton informed the EU Foreign Relations Council that she was concerned that the marines are to be charged under anti-piracy laws for the killing of two Indian fishermen and that it would have "huge implications" for Europe's fight against piracy. "Having said that, I've also made it clear to my dear friend Emma Bonino, to the Italian government, and to the members of the EU, that the EU remains very steadfast in our support to get this resolved in a straightforward manner quickly, and that two years is a very long time for us to see this drag on and that is the point I've made on numerous occasions." The EUHRVP also added : "A lot of the work on this, you'll understand, is done quietly – for good reasons."
On 11 February 2014, in response to Italy's petition for the United Nations to intervene in the case, the United Nations Secretary-General Ban Ki-moon termed the matter as a bilateral issue and declared : "It's better for the question to be addressed bilaterally, rather than with the involvement of the United Nations,". Sharing details of Ban Ki-moon's discussion with Emma Bonino, his spokesman Martin Nesirky clarified : "the Secretary-General is concerned that this long-standing matter between Italy and India remains unresolved and is prompting tensions between two friendly and important Member States of the Organization." (...) "The Secretary-General feels it is important that both sides seek to come to a reasonable and mutually acceptable resolution. He is concerned that the matter may have implications for wider common efforts and collaboration around matters of international peace and security, including anti-piracy operations."
On 12 February 2014, the Italian Foreign Minister reported the UN Secretary-General's views on the case to the Italian Parliament. Emma Bonino stated that she felt "great bitterness and perplexity" and accused Ban Ki-moon of "simply taking the middle ground between Rome and Delhi, ignoring two sides' arguments".
On 12 February 2014, the NATO Secretary-General responded to a question from an Italian journalist from ANSA "Q: Secretary General, as you know, two Italian marines are held in India since two years. And they are prosecuted under the anti-piracy and anti-terrorism law, according to Lady Ashton and the Italian Foreign Minister Bonino, this implies that Italy is a terrorist state. And how can such an accusation affect the international operations for anti-piracy and generally speaking the Italian nation abroad?". Transcripts of Catherine Ashton's statements available on the EEAS press office website do not give reason to the ANSA journalist's allegation that Baroness Ashton has endorsed the Italian view that it has been equated to a terrorist State by India. Anders Fogh Rasmussen responded in his personal capacity that : "I am, personally, very concerned about the situation of the two Italian sailors. I'm also concerned by the suggestion that they could be tried for terrorism offences. This could have possible negative implications for the international fight against piracy. A fight which is in all our interest! So I trust that we will see an appropriate resolution soon."
Renaming of Enrica Lexie as Olympic Sky & Greek Reflagging
Publicly available shipping records show that the Italian flagged Enrica Lexie was re-named as Olympic Sky and re-flagged as a Greek oil tanker. The new MMSI is 241346000 and call-sign is SVCB5. It is now a sister ship of Olympic Flair which was also cited in court documents.
Impact on EU-India relations
On 17 December 2014, European Union's new foreign policy chief Federica Mogherini has expressed her disappointment over the Indian Supreme Court's decision on the case of two Italian marines and warned that the issue could impact on EU-India relations. "The decision to deny the plea of Massimiliano Latorre for an extension of his stay in Italy for medical treatment and to refuse Salvatore Girone permission to spend the Christmas period at home is disappointing, as a long awaited mutually agreed solution has not yet proved possible," said Mogherini, a former Italian foreign minister, in a statement. "The situation of these two European military personnel has been pending for almost three years now. The EU has consistently called for a mutually agreeable solution, in the interest of both Italy and India, based on international law. The issue has the potential to impact the overall European Union-India relations and has also a bearing on the global fight against piracy, to which the EU is strongly committed," she stated.
On 14 January 2015, European MEPs appealed to the Italian government not to forget the two victims of the Enrica Lexie incident and urged EUHRVP Federica Mogherini, who was formerly Italian Foreign Minister, not to hold the wider economic interests of European member states hostage to the bilateral dispute between Italy and India. The European Parliament passed a non-binding resolution which called for a rapid resolution to the case of killing of Indian fishermen by Italian marines within the rules of International Law and Human Rights. Stalled EU-India FTA has prevented Italy from gaining political leverage through trade negotiations.
On 16 February 2015, José Manuel Barroso the 11th president of the European Commission from 2004 to 2014, opined that the Italian marines case was "a very sensitive issue" and went on to add "I see a political solution without putting in question the rule of law in India".
On 18 February 2015, the European Union Ambassador to India Joao Cravinho played down the resolution passed by the EU Parliament and said that the case will be resolved in accordance with Indian and International Laws.
The incident was cited as a reason for the delay in the European Union suggesting dates for an EU-India summit during the Indian Prime Minister's visit to Europe in April 2015. Cesare Onestini, the charge d'Affaires of the Delegation of the European Union to India said: "No date has been formally proposed to the Indian side." Strained relations with the European Union's High Representative for External Affairs who was also the former Italian foreign minister, Federica Mogherini, led to the cancellation of a visit to Brussels to meet with the new leadership of the Institutions of the European Union. Mogherini told the European Parliament in January 2015 that "it's good for everyone to be fully aware of how much of an impact the unresolved dispute of the two Italian Navy officials can have on relations between the EU and India. It is putting them to the test".
Kerala High Court
- 29TH DAY OF MARCH 2012, JUSTICE P.S.GOPINATH KERALA HIGH COURT JUDGMENT WP(C) No.6083 OF 2012(I) 
- 3rd day of April 2012, Manjula Chellur, Ag. C.J. & V. Chitambaresh, JJ. KERALA HIGH COURT JUDGMENT W.A. No. 678 & 679 of 2012 – Doramma Vs. M.T. Enrica Lexie, (2) KLJ 398 : 2012 (2) KHC 265 
- 2nd day of May 2012, Justice R.M. LODHA M.T. Civil Appeal No. 4167 of 2012 arising out of S.L.P. (Civil) No. 11942 of 2012 Enrica Lexie & ANR. Vs. Doramma & Ors.
- 29TH DAY OF MAY 2012 JUSTICE. P.S.GOPINATHAN, KERALA HIGH COURT JUDGMENT WP(C).No. 4542 of 2012 (P) – Massimilano Latorre Vs. Union of India (2012) 252 KLR 794 
Indian Supreme Court
- 18 January 2013 IN SUPREME COURT OF INDIA, RECORD OF PROCEEDINGS, WRIT PETITION (CIVIL) NO(s). 135 OF 2012 : REPUBLIC OF ITALY THROUGH AMBASSADOR & ORS. Petitioner(s) VERSUS UNION OF INDIA & ORS. WITH SLP(C) NO. 20370 of 2012  (Supreme Court judgement that State of Kerala as a Unit of the Federal Union of India does not have jurisdiction to try the case)
- 22 February 2013 IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION IA 4 OF 2013 IN SPECIAL LEAVE PETITION (C)NO. 20370 OF 2012 MASSIMILANO LATORRE AND ORS. Petitioner(s) VERSUS UNION OF INDIA AND ORS. Respondent(s)  (Order of Supreme Court of India which had allowed the Italian Marines to go back and had required them to return)
- 3 March 2013 IN THE SUPREME COURT OF INDIA, CIVIL APPELLATE JURISDICTION IA 4 OF 2013 IN SPECIAL LEAVE PETITION (C)NO. 20370 OF 2012 MASSIMILANO LATORRE AND ORS. Petitioner(s) VERSUS UNION OF INDIA AND ORS. Respondent(s) (From the judgement and order dated 29 May 2012 in WPC No.4542/2012 of The HIGH COURT OF KERALA AT ERNAKULAM) (Copy of Supreme Court's order restraining Italian Ambassdor from leaving India. )
- 22 March 2013 Statement in Lok Sabha (lower house of the Indian Parliament) by External Affairs Minister on return of two Italian marines to India 
- 25 April 2013 Statement in Rajya Sabha (upper house of the Indian Parliament) stating that no agreement has been entered into with the Italian Government regarding the Italian marines 
- 8 May 2013 Question tabled in Lok Sabha regarding agreement with Italy 
- On 12 August 2014, the Supreme Court allowed ailing Italian marine Massimiliano Latorre, to go to his country for four months.
Indian External Affairs Ministry
- 27 February 2013 Status of case regarding the killing of fishermen by Italian Marines 
- 12 March 2013 Media statement & press release by Foreign Secretary on Italians Marines' Issue 
- 13 August 2013 Media briefing on Italians Marines' Issue 
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- 2013 Seaman Guard Ohio incident in the Gulf of Mannar (October 2013)
- Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA)
- Maritime Security Operations: Combined Task Force 150, Combined Task Force 151
- Maritime Security Regimes
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- Operation Ocean Shield – a current military operation undertaken by the NATO in order to prevent and combat acts of piracy in the Indian Ocean.
- Proliferation Security Initiative (PSI)
- United Nations Convention on the Law of the Sea (UNCLOS)
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[Italian] marines at home for Christmas. 800 thousand Euros as guarantee
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Partiamo, mantenendo la nostra parola di italiani, fiduciosi nella giustizia
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The effectiveness of the international efforts to counter piracy depends also on the full respect of the applicable international law and the flag state jurisdiction in international waters. We remain deeply concerned by a specific case of disregard of basic international law principles concerning the status of military personnel in action duty as VPD in an official counter-piracy mission, and the flag State jurisdiction in international waters.
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"Ripeto, c'è stata una posizione ferma, decisa, pubblica dell'Unione europea a sostegno della nostra tesi" (I repeat, there has been a stern, determined, public stance by European Union supporting our thesis)
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legislation that appears to be used suggests that somehow this is about terrorism and this has enormous implications for Italy, but also enormous implications for all countries engaged in anti-piracy activities
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UN Secretary General Ban Ki Moon calls Italian marines in India case bilateral
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I am, personally, very concerned about the situation of the two Italian sailors. I'm also concerned by the suggestion that they could be tried for terrorism offences. This could have possible negative implications for the international fight against piracy. A fight which is in all our interest! So I trust that we will see an appropriate resolution soon.
- SC decision on Italian marines: EU warns it could impact ties
- [ http://www.europarl.europa.eu/news/en/news-room/content/20150109IPR06318/html/MEPs-call-for-Italian-mar%C3%B2-accused-of-killing-Indian-fishermen-to-be-repatriated MEPs call for Italian marò accused of killing Indian fishermen to be repatriated]
- [ http://articles.economictimes.indiatimes.com/2014-12-17/news/57154714_1_eepc-india-investment-agreement-india-eu-trade-talks EU keen to restart stalled BTIA negotiations with India]
- Issue of Italian marines has been an irritant in the India-EU relationship
- European Union Ambassador to India Joao Cravinho: EU hopeful of speedy resolution of Italian marines issue
- European Union Ambassador to India Joao Cravinho: EU hopeful of speedy resolution of Italian marines issue
- [ http://www.daijiworld.com/news/news_disp.asp?n_id=297828 EU hopeful of speedy resolution of Italian marines issue]
- PM Narendra Modi’s Brussels visit cancelled as EU fails to respond (Economic Times)
- A snubmarine story: India faces snub by European Union over Italian marines issue (India Today)
- PM Narendra Modi's Brussels visit cancelled as EU fails to respond on summit dates (NDTV)
- PM Narendra Modi’s Brussels visit cancelled as EU fails to respond (WN.com)
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