Enrica Lexie incident
|This article may be slanted towards recent events. (July 2014)|
|Enrica Lexie Incident|
Indian Claim: Indian Territorial Waters, 20.5nm off Kerala's Malabar coast
Italian Claim: International Waters
|Coordinates||09°20N 075°52E |
|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 (accused)|
The Enrica Lexie Incident was a maritime incident allegedly occurred on 15 February 2012 between the Italian marines on board the privately owned oil tanker Enrica Lexie and the sailors of the Indian fishing boat St. Antony, which led to the death of two fishermen. While the exact position of the alleged events is still under dispute, it can be positioned in the international waters of Laccadive Sea, within the Indian exclusive economic zone (EEZ) off the coast of Kerala, southern India. The incident sparked a diplomatic row between the governments of India and Italy, stemming from a conflict of opinions over legal jurisdiction and functional immunity.
According to the available reconstructions, the incident occurred around 16.30 hours of 15 February 2012, when Italian Navy marines, on-board a privately owned Italian-flagged Aframax oil-tanker MT Enrica Lexie, opened warning fire in direction of an approaching boat. The Italian Marines were members of Nuclei militari di protezione (Military protection teams, or NMP), in anti-piracy mission under the Resolutions 1970 (2011) and 1973 (2011) adopted by the United Nations Security Council.
Indian coastal police were alerted that two crew members of St. Antony, an Indian fishing trawler, had been killed by gunfire from an oil-tanker. Indian Coast Guard contacted the Enrica Lexie, asking captain for his collaboration in identifying some suspect pirates. The Italian oil-tanker, which was already far away from Indian coast, reversed course and moored in the port of Kochi. On 19 February 2012, Kerala police members went onboard the Enrica Lexie, and two of the 6-member of the NPM, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, belonging to the San Marco Regiment of the Italian Navy, were arrested and charged of murder of the two crew members of St. Antony.
Latorre suffered a brain stroke in August 2014 and in September, the Supreme Court of India allowed him to go to Italy for treatment for four months. Girone is detained in Italy's Embassy in New Delhi. No accusations have been formalized against them, since the Supreme Court of India suspended the pre-trial process started by the Special Court originally in charge of the case, and asked to both Indian Government and NIA to present their thesis by the end of July 2014. On July 31, 2014, the judge charged of the case did not show himself in the Court, thus causing a new rescheduling to 14 October 2014.
- 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
- 9.1.1 International Maritime Organisation (IMO)
- 9.1.2 World Customs Organization (WCO)
- 9.1.3 SUA Convention
- 9.1.4 United Nations Convention on the Law of the Sea (UNCLOS)
- 9.1.5 United Nations Convention on Jurisdictional Immunities of States and Their Property
- 9.1.6 Bilateral agreement between Italy and India on the transfer of sentenced persons
- 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, the International Transport Workers' Federation (ITF) identified 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.
According to a report by the International Maritime Bureau (IMB) of the International Chamber of Commerce, on 21 February 2012, a Greek tanker, the Olympic Flair, was attacked on the same day of the Enrica Lexie incident, about 2.5 miles from the port of Kochi, by about 20 people aboard two boats. The ICC – in a communication to the Italian Navy – has provided the IMO number, International Maritime Organization (8913966), of the ship involved in the attack, identifying it, without any doubt, as the Olympic Flair, flying the Greek flag.
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. Concurrently, a senior official in the directorate-general of shipping said that investigators were unable to retrieve the Long-Range Identification and Tracking (LRIT) data as the server was off on the day of the incident.
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 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",.
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 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) 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.
Depositions obtained from the Enrica Lexie crew and VPD team
- "The radar sighting takes place at 11.55 CET (now 16.25 IST), just 2.8 nautical miles from the merchant, which until now had not visually noticed anything. The crew estimated that the boat is on a collision course with the tanker. When the vessel is 800 meters from Enrica Lexie, Latorre and Girone begin the first light signals, strive to make sure warning lights visible from the outside and show an obvious arms above their head. The fishing boat does not change course and proceeds straight towards Enrica Lexie. Reaching 500 meters."
- "These facts made the crew on board of Enrica Lexie consider the behaviour of the boat as a threat."
- "The ship's captain activates the general alarm, which are also combined sound fog signals (sirens), alerts the crew via intercom that it is a pirate attack. At this point that Latorre and Girone shoot the first two bursts of warning in the water. The boat is approaching again. The suspicion of pirates becomes even more real when the two vessels are 300 meters apart and continues approach. At this point the group optically identifies through binoculars the presence of armed men on board the fishing boat. In particular, find that at least two of the crew members have a long-barrelled weapon carried over the shoulder with a posture clearly aimed to conduct a boarding of the ship. Latorre performs the third volley of warning in water, consisting of four bullets"
- "The vessel does not seem to change course. Instead continues to approach until a distance of 100 meters, pointing to the center of the vessel. At that point the two sailors shot the last burst once again into the sea (not the fishermen-pirates), with only 50 meters separating the oil tanker from St. Antony. Then finally the fishing boat (St. Antony) pulls offshore."
- "crew had received a call from the Indian Coast Guard, on the Inmarsat satellite phone, asking the Enrica Lexie to head to port to identify two boats responding to description of pirate boat."
Opinion of military investigators
- "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."
|This section may require cleanup to meet Wikipedia's quality standards. The specific problem is: Rewrite in summary style. (March 2014)|
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". 
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". IMO guidance to ship owners, 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".
The Oil Companies International Marine Forum held at IMO Headquarters in London from 11 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.
The IMO had pointedly cautioned ship-owners, in 2011 through Maritime Safety Committee (MSC) circular MSC.1/Circ.1339, that "the use of PCASP should not be considered as an alternative to Best Management Practices (BMP) and other protective measures."
The Intersessional Maritime Security and Piracy Working Group of the Maritime Safety Committee, which met at IMO Headquarters in London from 13 to 15 September 2011, approved a set of Maritime Safety Committee (MSC) circulars which clearly outline the Best Management Practices (BMP) and legal obligations of ships carrying armed guards.
International Maritime Organisation (IMO) Alert Embankment circular MSC.1/Circ.1405/Rev.1 provides guidelines for ships involved in anti-piracy operations and explicitly states : "The Master should report to the appropriate military authorities when a ship intending to transit, or transiting the High Risk Area is carrying PCASP, firearms and security-related equipment on board".
Indian shipping guidelines for private maritime security on merchant vessels
In May 2011, the International Maritime Organization's (IMO) Maritime Safety Committee (MSC) approved an interim guidance on the use of privately contracted armed security personnel on board ships transiting high-risk piracy areas through MSC.1/ Circ. 1405 &1406 regarding the use of private armed security on board merchant ships.
India's Ministry of Shipping guidelines SR-13020/6/2009-MG(pt.) dated 29 August 2011 officially approved the deployment of armed guards aboard Indian merchant ships to protect them against piracy & armed robbery by laying out a set of guidelines to be followed by both Indian and foreign merchant vessels.
- 7.2 Transit of armed merchant ships through Indian Exclusive Economic Zone (EEZ). Considering that the right of 'innocent passage' to merchant ships can not be summarily withdrawn, it is imperative that measures are initiated to ensure due notification about carriage of weapons/ammunition or armed security guards is received from all ships within Indian EEZ and Indian Search and Rescue Region (ISRR).
- 7.3 All Indian vessels when visiting Indian ports shall provide the following information to the jurisdictional port authority, customs and regional coast guard authority and Indian Navy, 96 hours prior to their arrival, with their Pre Arrival Notification for Security (PANS);.1 Names, addresses and details of identification cards and passports of the security personnel..2 Number and details (Make, model, bore, calibre, serial number etc.) of firearms and ammunition..3 Details of license issued or accepted by the jurisdictional national administration where the PMSC is registered.
- 7.6.1 All merchant vessels (both Indian and Foreign) transiting through Indian EEZ and carrying armed guards are required to provide the information contained under para 7.3 to the Coast Guard and Indian Navy.
Indian response to IMO's questionnaire on PCASP and VPD
India submitted an official response to the IMO's "Questionnaire on information on port and coastal State requirements related to privately contracted armed security personnel on board ships" (MSC-FAL.1/Circ.2) and specifically highlighted the responsibilities of PCASPs and VPDs in the event of a security-related incident within the Indian EEZ :
- Question 3.1 : Reporting of security-related incidents in territorial seas. What do you consider to constitute a security incident in you territorial sea(s)?
- Answer 3.1 : Any incident where a PCASP or VPD has encountered pirates or has mistaken a fishing boat to be a pirate skiff and has used force in this context, within Indian Exclusive Economic Zone (EEZ).
- Question 3.2 : Do you require information regarding security-related incidents occurring in your territorial sea(s)?
- Answer 3.2 : YES, Details of information required to be sent to Indian Navy & Indian Coast Guard are as per Annex 1.
World Customs Organization (WCO)
At the Council Sessions in June 2011 the Observer for the International Maritime Organization (IMO) raised the issue of the increasing threat to the maritime part of the supply chain of piracy and armed robbery, particularly off the coast of Somalia through IMO MSC 90/20/1, IMO MSC-FAL.1/Circ.2, IMO FAL 37/17 and IMO MSC 90/20/12. Taking into consideration the complex legal issues raised by the intention of a number of States to use privately contracted armed security personnel (PCASP) on board commercial vessels, the IMO requested the Customs community to provide details of Customs-related aspects of the carriage, embarkation and disembarkation of firearms and security equipment.
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). 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.
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.
- UNCLOS article 287: "India reserves the right to make at the appropriate time the declarations provided for in articles 287 and 298, concerning the settlement of disputes"
- UNCLOS article 298: "India understands that the provisions of the Convention do not authorize other States to carry out in the Exclusive Economic Zone and on the continental shelf military exercises or manoeuvres, in particular those involving the use of weapons or explosives without the consent of the coastal State"
Indian authorities have pointed out that Italy did not obtain permission for the military mission within the Exclusive Economic Zone (EEZ) of India. The privately owned MT Enrica Lexie, due to the deployment of soldiers, military weapons and live-ammunition on board the vessel, ought to have obtained Pre-Arrival Notification for Security (PANS) clearances from the Government of India prior to its transit passage through Indian Customs Waters.
India, in its quality as the coastal State, cited UNCLOS articles 19, 21, 27, 101 & 111 to claim that the Enrica Lexie 's transit through the Contiguous Zone was "prejudicial to the peace, good order or security of the coastal State".
According to UNCLOS art.19(g), "the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;" is contrary to innocent passage. UNCLOS Art.21(h) and Art.25 gives a coastal State the right to pass legislation to this effect. UNCLOS Art.33 allows a coastal State to exercise control over the Contiguous Zone (24 nautical miles from the baseline) to both "prevent" and "punish" acts that cause "infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea".
UNCLOS article 27.1.a stipulates that the criminal jurisdiction of the coastal State prevails over flag jurisdiction if the consequences of the crime extend to the coastal State.
The definition of piracy as contained in article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) stipulates that the acts of violence are committed on the high seas against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
UNCLOS article 97 deals with 'Penal Jurisdiction in Matters of Collision or any other incident of Navigation' and states "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". In the case of Enrica Lexie there was neither any collision nor any navigational incident.
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 St. Antony fishing vessel which (being on the starboard side of Enrica Lexie) also had navigational right of way
United Nations Convention on Jurisdictional Immunities of States and Their Property
The Italian government has claimed that the marines are elements of the State and that they enjoy absolute sovereign immunity. Italy cited extraterritorial 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.
In response, India too cited extraterritorial provisions of its own law, 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 merchant vessels. India has also highlighted that there exist 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.
Contact Group on Piracy off the Coast of Somalia (CGPCS)
Italian claims that the actions of the Italian marines are covered under United Nations anti-piracy mandate is refuted by India on the grounds that the shooting occurred in the Laccadive Sea within the Contiguous Zone of India and that the Italian marines were operating beyond the territorial scope of United Nations anti-piracy resolutions for the Western Indian Ocean. India has repeatedly drawn attention to the fact that UN Security Council Resolution 1851 (2008) which was later recalled and replaced with UN Security Council Resolution 1918 (2010) pertain exclusively to piracy the Western Indian Ocean bordering Somalia and the Horn of Africa and do not apply to fishing areas in the vicinity of the Lakshadweep archipelago.
Status of Forces Agreement (SOFA)
Italy did not obtain clearances from the Government of India for the military mission within India's Contiguous Zone by the Nuclei Militari di Protezione (NPM) team which had taken up VPD duty on board the merchant vessel MT Enrica Lexie.
India and Italy do not have any bilateral agreement allowing Italian defence personnel to claim absolute or qualified immunity from the Indian legal system. India, a Non Aligned Movement (NAM) member State, is bound neither by NATO's Status of Forces Agreement (SOFA) or other similar SCO or CSTO military agreements.
The Attorney-General of India told the Supreme Court that the Government, following a well-settled principle of State policy, steadfastly refuses to enter into any SOFA-like military treaty or alliance with other countries. Foreign defence forces personnel can claim no immunity whatsoever from prosecution for crimes committed in India or involving Indian interests.
Secret United States diplomatic cables released by Wikileaks show that Indian officials systematically refused to entertain immunity requests from US diplomats for their armed forces personnel. American diplomats were warned that US personnel on official visits, training exercises and R&R shore-leave are not immune from prosecution for crimes committed in India.
Notwithstanding the traditional pro-Western penchant, Indian public opinion is broadly supportive of strategic independence with regards to national interests. Political parties have consistently opposed any limiting constraints and intrusive obligations as imposed by treaty agreements such as Status of Forces Agreement (SOFA), Visiting Forces Agreement (VFA), Acquisition and Cross-Servicing Agreement (ACSA), Logistics Support Agreement (LSA) and Communications Interoperability and Security Memorandum of Agreement (CISMOA).
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.
The Indo-Italian agreement between Italy and India aims to facilitate the social rehabilitation of sentenced persons. The Agreement consists of 20 articles and it is inspired by the Convention on the Transfer of Sentenced Persons.
Under the terms of the bilateral agreement, the execution of the sentence shall be governed by the receiving state, which will be free, under its laws, to provide alternative measures. A person sentenced in the territory of a Contracting State, may be transferred to the territory of the other State in order to serve the sentence, provided that:
- the convicted person is a national of the receiving state
- the judgement is final
- the transferring State and the receiving State will agree
- the acts or omissions for which the person has been convicted are also considered as crimes by the law of the receiving State or would constitute an offence if committed on its territory.
The agreement does not apply to convicts who have been sentenced to death. Neither can the convicts exercise this option till the court of final appeal in the country in which the crime has been committed has settled the case.
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
On 11 March 2013, 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.
The two marines had previously been allowed to return to Italy and be with their families during the Christmas and New Year vacation period in December 2012 by the Kerala High Court. The two marines returned to India in January 2013.
On 22 February 2013, the Supreme Court of India allowed Girone and Latorre a second exception, as a gesture of good-will, to return to Italy for an extended break of four weeks to vote at the general election and be with their families. This permit was granted on the basis of affidavits by Italy's representatives (ambassador of Italy in India with an email from the foreign minister and the prime minister) that the marines would be returned to face the Indian courts. Indian media raised the prospect that the Italian envoy had filed a false affidavit in the Supreme Court by revealing that the marines could have voted either at the Italian embassy or by postal ballot and need not have travelled to Italy to vote in the elections.
Highlighting the exceptional leniency accorded to the two marines by Indian courts, Gujarat Chief Minister Narendra Modi summed up the public sentiment in India by saying: "We let two under-trial Italians go to their country to vote. Here, under-trial (Indian) citizens are not even allowed to attend their mother's funeral."
Italian President Giorgio Napolitano, Defense minister Giampaolo Di Paola, and Foreign Minister Giulio Terzi irked public opinion both in Italy and India by ceremoniously receiving the marines upon their arrival in Italy and hailing them as 'Italian heroes' even though they stand accused of manslaughter.
News that the marines would not return to India threatened to bring down the ruling UPA government. In a rare show of political unity, politicians from all sides of the political spectrum condemned the unilateral decision of the Italian government.
Fishing communities organised spontaneous protests and urged the federal government to take stringent action against the Italian government. The Chairman of Fishermen Coordination Committee (FCC), V.Dinakaran said: "We demand the arrest of the Italian ambassador who presented an affidavit before the honourable Supreme Court to get bail for these Italian Marines to go to their country. He is the culprit now in India. He is present in India". The Convenor of Kerala Fisheries Coordination Committee (KFCC), V.V. Saseendran, threatened to intensify their agitation if Italy refuses to send back its marines. "All the trade unions came together to fight against Italian attitude. Today we started the agitation. It will not stop. When the Italians will come in here, up to that time our fight will go all over India", said Saseendran.
"They (Italy) have violated every rule of diplomatic discourse and call into question solemn commitments given by accredited representatives of a government", Indian Prime Minister Manmohan Singh told parliament, adding that it was 'unacceptable' for Italy to refuse to send back marines and warned that there will be 'consequences'.
India initiated the process of downgrading its diplomatic ties and decided not to post the ambassador-designate to Rome. The Indian government also announced a decision to initiate a review of the entire gamut of relations with Italy including diplomatic, trade and defense ties. The European Union was briefed on India's views and position in the matter. A spokesperson for the EU High Representative for Foreign Affairs, Catherine Ashton stated: "The EU is taking note of the disputes between India and Italy and continues to hope that a common solution can be reached through negotiation".
Political allies of Sonia Gandhi, the Italian-born chairperson of the UPA government and president of the Congress party, demanded that she take a clear stance on the matter. Sonia Gandhi termed the Italian actions as a 'betrayal', adding that "No country can, should or will be allowed to take India for granted. All means must be pursued to ensure that the commitment made by the Italian government to our Supreme Court is honoured". Sonia Gandhi, whose Indian citizenship and loyalty are regularly subjects of intense debate, was accused by the opposition parties of colluding with Italy to help the marines evade justice. Prominent members of civil society warned the UPA government not to allow the two Italian marines to evade justice in India as did Ottavio Quattrocchi, an Italian middle-man and family-friend of Sonia Gandhi, a key accused in the Bofors arms scandal.
Opposition leader Arun Jaitley invoked a popular quote by James Bond 007 to attack the government on the Italian marines issue : "Once is happenstance. Twice is coincidence. Three times, it's enemy action," he quoted from the Ian Fleming novel Goldfinger. Likening the Italian decision as "enemy action" he urged the UPA government to "forget diplomatic niceties".
In response to a Public Interest Litigation (PIL) petition filed at the Supreme Court of India by Janata Party president Subramanian Swamy, the Attorney General responded that Italy had violated a sovereign undertaking to ensure the return of the two marines.
The Indian Supreme Court took exception to Italy breaking its promise regarding the return of the marines. On 14 March, the Supreme Court of India restrained Italy's ambassador Daniele Mancini from leaving India till 18 March. On 18 March, this order was extended till 2 April. The Chief Justice of India, Altamas Kabir, disapproved of the Italian government's position to not return the marines and said "Much has been written about how naive we are. We never expected the government of Italy to behave like this. What do you think courts are ?" The Supreme Court directed the executive branch to take measures to enforce the travel restrictions placed on the Italian ambassador if he tried to leave the country. The intransigent stance adopted by the Supreme Court of India left India's UPA coalition government no choice but to comply with the court order had the Italian envoy tried to leave India. Rome avoided a showdown with Indian authorities by not ordering Ambassador Daniele Mancini to leave India.
With senior counsel Mukul Rohatgi stating that he was appearing for both the Republic of Italy and the Italian ambassador, Justice Kabir said he wanted to hear Mancini and not the Italian ambassador. "But he is also the ambassador," Rohtagi said."What is your intention Mr Daniele Mancini?" Justice Kabir then asked. With Justice Kabir distinguishing between the individual and the ambassador, Rohatgi said Mancini had acted on behalf of the government of Italy.
Political observers questioned the legality of the Supreme Court ruling, albeit taking note that the Italian envoy had offered himself as 'personal guarantee' till the return of the marines. Indian media claimed that ambassador Daniele Mancini could face trial for contempt of court by the Supreme Court of India if the marines fail to return in time.
Italy issued a strong protest and reaffirmed the diplomatic privileges of its ambassador to India. The EU High Representative for Foreign Affairs, Catherine Ashton, cautioned India against violating the Vienna Convention on Diplomatic Relations (VCDR). India refused to yield to pressure and warned that it will neither allow Italy to use VCDR as a shield to subvert Indian laws nor be arm-twisted into accepting the status-quo.
The episode fuelled intense debates led by civil-liberties and human rights groups who questioned the morality of allowing the overarching cloak of diplomatic immunity and the grey-areas of international treaties to shield defence and diplomatic service personnel from prosecution for erroneous actions committed in host countries.
The United States of America refused to be drawn into the crisis during the stand-off. State Department spokesperson Victoria Nuland told reporters: "This sounds like an issue between India and Italy, not an issue for us".
United Nations Secretary General Ban Ki-moon took a neutral stance by calling for a "peaceful resolution and respect for international law".
Italy was blamed for unilaterally escalating the diplomatic row into a crisis which threatened to spiral quickly out of hand. Diplomats stationed in India were quoted as saying: "We did convey our concerns to the Italians at the informal level, that this will harm everyone, and that the onus of getting the marines back is on the Italian Government as they had given an assurance to India's highest court. (...) Even though we felt sorry for Daniele Mancini, who is a seasoned diplomat, reneging on a sovereign promise could damage the credibility of diplomats and the Italians must correct this"
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"
The Indian Government has clarified that the nature of homicide charges against the two Italian marines did not appear meet the "rarest of rare" criteria for death penalty if the marines were found guilty of murder of the two Indian fishermen. Indian authorities have repeatedly highlighted the exceptional nature of capital punishment in India. The Indian Supreme Court has allowed death penalty to be carried out in only 4 cases since 1995.
The European Commission expressed relief over the end of the diplomatic stand-off between India and Italy and has voiced hope that the "dispute over the substance of the issue will be resolved soon" in an amicable manner.
Citing India's apex court order against a serving ambassador as a precedent, Kanwal Sibal the former foreign secretary of India said :"The Supreme Court's order restraining the ambassador from leaving the country has already created a major precedent by interpreting loosely a country's obligation under the VCDR to respect the diplomatic immunity of an ambassador. This has caused serious disquiet in diplomatic missions in New Delhi, as the possibility that Indian courts could, in future too, interpret the principle of diplomatic immunity circumstantially cannot be ruled out."
In a bid to lower media coverage given to the case involving the two Italian marines, Indian administrative officials and diplomats have adopted a uniform policy of refusing to comment further developments on the grounds that the "Italian marines matter is sub judice".
The two Italian marines have received permission to live within the Italian diplomatic compound under the custody of the Italian embassy in New Delhi and have to report once a week at Chanakyapuri Police Station in New Delhi.
Indian judicial opinion is sharply divided over whether foreign minister Salman Khurshid prejudged the trial of the two Italian marines on the issue of capital punishment. On 29 March 2013, Salman Khurshid pointed to the independence of the judiciary in India by stating that the Indian government's "clarification" on death penalty may not be upheld by the Indian Supreme Court. Highlighting the constitutional obligations of the executive branch to respect the judiciary, Kurshid said: "Do we have a choice but to accept what the court decides?" On 8 April 2013, R.K. Singh, under-secretary for home affairs, stated that the Indian government will abide by assurances given to Italy on the applicability of capital punishment (death penalty). The BJP Opposition-party demanded that the two Italian marines be tried under the Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (2002) and not the Indian Penal Code : "Under this (SUA) Act, murder attracts only death penalty. But the marines are being tried under the IPC where a life sentence or a death sentence can be given. This has been done to somewhat dilute the punishment".
The extraordinary leniency, given to the Italian marines while they stand trial in India has been cited by Narendra Modi as an example of policy paralysis leading to the compromising of national security and self-respect by the Congress party led UPA government.
In Italy, the volte-face was perceived as a distressing foreign policy mess leading to an embarrassing climbdown. Italian Foreign Minister Giulio Terzi faced severe criticism in the Italian media for his ineffective diplomacy. Linking the tortured advances in the case involving the two marines to incoherent crisis management, Italian media highlighted the quick apologies and non-controversial approach taken by the United States of America and France when their armed forces were recently involved in incidents leading to the death of Indian citizens : USNS Rappahannock (T-AO-204) shooting off the coast of United Arab Emirates and by French expeditionary forces in Central African Republic respectively.
On 26 March 2013, Giulio Terzi tendered his resignation just as the care-taker government of Mario Monti was giving way to a new government. Terzi announced that he was opposed to the return of the marines to New Delhi, contradicting his earlier statements which affirmed that the decision to return the marines to India was taken collectively by the Italian government. Defence minister Giampaolo di Paola drew parallels between Giulio Terzi's resignation and the actions of Captain Francesco Schettino of the Costa Concordia, saying that they both abandoned a sinking ship.
On 27 March 2013, Italian Prime-Minister Mario Monti addressed the Italian parliament and stated: "Our priority was safety, security and dignity of our two marines as well as of all Italians who are in India" adding that Italy faced "serious and objective risks of being isolated in the international community amid a crisis of grave proportions with India". The Italian premier disclosed that Italy faced the real possibility of collective sanctions from the BRICS countries when they met in South Africa for the 5th BRICS summit. Mario Monti also revealed that former Italian foreign minister Giulio Terzi repeatedly hampered efforts to settle the dispute with India in a quiet manner by perpetuating controversies through hawkish statements posted on Twitter. Monti attributed the "hardening" of India's stance to "rash" statements to the press by Terzi and concluded his parliamentary briefing on the debacle, saying that Italy's strategy "shouldn't have been the subject of premature statements to the press, which Minister Terzi decided instead to make, previewing a final result which at that point couldn't be taken for granted",.
Giulio Terzi confirmed that he was viewed as "being part of the problem" by other cabinet ministers and therefore bypassed by Italian President Giorgio Napolitano, who appointed Staffan de Mistura, the Italian Deputy Foreign Minister, as his Special Envoy to resolve the stand-off with India.
On 5 April 2013, Italian President Giorgio Napolitano issued a presidential pardon for a CIA officer, who had been condemned in absentia over the Abu Omar illegal rendition case, expressing hope that a similar pardon could be obtained in India for the two Italian marines.
Staffan de Mistura gave a detailed interview regarding the case to Italian media during his visit to India in June 2013. He spoke about the welfare of the two marines saying that they were "not in prison in India but within the cozy Italian embassy" which the Indian authorities had allowed as a gesture of fairness. "Massimiliano Latorre and Salvatore Girone work for three days regularly as officials of the Italian Embassy in New Delhi, where they reside and receive visits, including those by their family members," Commenting on the investigation process and trial, he stated : "the investigations are proceeding in the spirit of a fair and speedy trial." Speaking about Indian public opinion and media he said : "in recent 3 months neither in the press nor in Indian public opinion has there been any initiative of hostility or dislike or disfavour towards our marines." and went on to add "the case is not discussed here, as we expect it in Italy."
The management of the crisis has been prone to criticism by domestic and international media and opinion makers in the field of international diplomacy, who blamed either Italian authorities, Indian ones, or both of them.
In a bid to understand the polarised viewpoints of Indians and Italians on the marines issue, two journals (La Repubblica in Italy and The Hindu in India) carried out a joint survey of public opinion through a common on-line forum. Notwithstanding a nationalist bias in both countries over the diplomatic row, the general consensus was that politicians in both countries had 'queered the pitch'. The principle focus of Italians was the return of the two marines at all costs, while Indians on the other hand sought guarantees on justice for the families of the two victims and for disciplinary action against the perpetrators of the crime. A widespread belief among Indians is that the Italian government is not serious in investigating the actions of the Italian crew and VPD detachment on board the Enrica Lexie. Italy is accused of using judicial loopholes to prevent the two Italian marines to be held accountable for failing to follow IMO anti-piracy guidelines and for using disproportionate lethal force which led to the wrongful death of two Indian fishermen. The official welcome ceremonies organised for the two marines each time they returned to Italy has led to the belief that Italy is not concerned with reprimanding the VPD guards for the death of the fishermen and has instead portrayed the marines as Italian heroes. The unexplained erasure of VDR data from the Enrica Lexie and involvement of representatives from the Catholic church by the Italian authorities to broker a settlement with the owner of the fishing vessel and families of the victims through the payment of blood money aroused suspicion of tampering of material evidence and influencing of witnesses.
The lifestyle of the two marines since their transfer to New Delhi from Kerala has been viewed as a provocation: Latorre and Girone are daily visitors to one of the best-known private clubs in New Delhi: the 'members-only' café-restaurant of the Italian Cultural Centre. Indian media reported that the duo attended a party at the Vatican Embassy and were seen freely mingling with guests. "The way the duo are being paraded by the Ambassador and the manner in which the Catholic establishment is openly flirting with the accused is quite embarrassing", said a diplomat who attended the party. The Italian ambassador Daniele Mancini and a prominent political leader of the ruling Congress party, Christy Fernandes, were also present.
On 3 April 2013, lights were switched off at the Colosseum in Rome in a show of solidarity with two Italian marines in India.
On 14 September 2013, Italian media reported that the public show of support to the two marines held in India has been questioned in certain sections within Italy. An act of vandalism targeted a giant poster put up in support of the two marines in the city of Imperia.
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."
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.
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 
- 21 August 2013 Media briefing regarding summons to 4 marines who were witnesses 
- 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
- Operation Atalanta – a current military operation undertaken by the European Union Naval Force in order to prevent and combat acts of piracy in the Indian Ocean.
- 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)
- Manthan K Mehta (2011) Pirates off Lakshadweep, Navy keeps eagle eye. Times of India.
- Navy and Coast Guard thwart yet another piracy attempt. Indian Navy, 27 march 2011
- "DG Shipping Press Release on firing by Italian Ship on Indian fishermen". Press Information Bureau, Government of India. 16 February 2012.
- "SC allows ailing Italian marine Massimiliano Latorre to go home for 4 months". The Times of India.
- Gianandrea Gaiani (2014) Un'altra estate in India per i marò. Il Sole 24 Ore, 1 aprile 2014
- Judiciary asked to probe marines case - Citizens group accuses authorities of 'obscurantism'. ANSA, 3 June 2014.
- Marò: rinviata al 14 ottobre l’udienza del tribunale speciale di Nuova Delhi. Il Corriere della Sera online, access on July 31, 2014.
- "Anti-Piracy Planning Chart".
- "ATTO CAMERA INTERROGAZIONE A RISPOSTA SCRITTA 4/15000". 27 November 2012.
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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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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.
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