Enrica Lexie case

2012 Italian shooting in the Arabian sea
The shootings occurred off the coast of Kerala state, India
Enrica Lexie at Kochi
Location	Indian Contiguous zone
Date	15 February 2012 16:30 IST (disputed) (UTC+05:30)
Attack type	Shooting
Deaths	Indian fishermen: Ajesh Binki and Gelastine (Valentine)
Perpetrators	Italian Marines: Massimiliano Latorre and Salvatore Girone (accused)

The 2012 Italian shooting in the Arabian sea is an incident under investigation that occurred within the Indian Contiguous Zone on 15 February 2012, off the coast of southern India, in which the use of live fire from automatic weapons by two marines of an Italian Navy Vessel Protection Detachment (VPD) on board oil tanker MV Enrica Lexie was linked to the deaths of two Indian fishermen on board a fishing boat. Ajesh Binki and Valentine aka Gelastine, natives of Tamil Nadu and Kerala respectively, were allegedly shot dead by Italian marines of the Reggimento San Marco, Marina Militare.

The incident sparked a major diplomatic row between the governments of Italy and India, with Indian police immediately opening a murder inquiry, and the Indian Coast Guard later intercepting the ship and arresting two Italian marines suspected of being involved in the shooting. The two Italian marines were released after 105 days in judicial custody under strict bail conditions and assurances from the Italian government that they will remain available to answer charges before Indian courts.

However, on 11 March 2013 the Italian Foreign Ministry announced that the two Marines will not be returned there for trial. The Indian government allowed the marines to travel to Italy in February to vote in national elections, and they were scheduled to return to India. But the ministry said in a statement that the marines would not be sent back to India. The long fight over the marines’ fate has strained ties between the two governments.

Shooting

The MV Enrica Lexie was traveling from Singapore to Egypt with a crew of 34 including 19 Indians and accompanied by six Italian marines from the San Marco Regiment, while the fishing trawler named St. Antony had left Neendakara in Kerala with a crew of 11 to fish for tuna.

According to the Indian Coast Guard, Indian government sources and the crew of the fishing boat Saint Antony, the incident occurred at approximately 16:30 IST (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 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, claimed that the Italian naval guards opened fire in self-defence against armed pirates.

In the court affidavit filed by the two marines urging the Kerala High Court to quash the FIR (First Information Report) against them, the document states:

"The master of the vessel increased the speed of the ship to 14 knots (about 28 km/per hour) and reduced the speed to 13 knots once the piracy attack was averted. The master also activated the Ship Security Alert System (SSAS) which sent out signals to the Italian Maritime Rescue and Coordination Centre (MRCC). The master also reported the incident on the mercury chart which links together and transfers information to the community including several navies across the world fighting piracy, including to the Indian Navy headquarters. The 'Military Report' was also done. A report was sent to MSCHOA at UK. Since the attempted attack was averted, the vessel continued on its scheduled course of journey."

However, no documentary evidence to support the statement was submitted along with the affidavit to the Kerala High Court and therefore resulted in Justice P.S. Gopinathan rejecting the withdrawal of the FIR by observing:

"It is pertinent to note that no record was produced to show that the marines, before shooting down the fishermen, had even intimated any piracy threat to the Captain of the ship or that the Captain had recorded the same. Also there is no document in support of the plea that the Master had activated the Ship Alert Security System or that any signal was sent to the MRCC, Mercury chart or to any of the Navies across the world."

Speaking to an Indian television channel on 18 May, 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".

Indian Coast Guard intervention

Court documents submitted by the Government of India on behalf of the Indian Coast Guard and Indian Police chronologically list the actions that were taken after the fishing boat reported the incident to the coastal police at Neendakara in Kollam district. The Indian Coast Guard launched search operations with CGAE Kochi and by deploying two Offshore Patrol Vessels ICGS Samar and ICGS Lakshmi Bai in addition to a Dornier Do-228 maritime surveillance aircraft to intercept the Enrica Lexie. After the incident, the Enrica Lexie continued sailing for almost three hours and covered a distance of 39 NM from the original position. Only after interception by the Indian Coast Guard and being forced by the Coast Guard to proceed and anchor at Kochi did the vessel send an e-mail reporting the incident to her owner at approximately 19:17. It was also stated that the vessel had not immediately reported the incident to the IMB piracy reporting centre, which is the mandatory procedure. Speaking for the Coast Guard, Vice-Admiral K.N. Sushil, Flag Officer Commanding-in-Chief of the Southern Naval Command and Commander-in-Chief (Coastal Defence) of the Southern Zone, stated that it appeared the Italian marines erred in judgement. He noted that while it was accepted procedure to report piracy events or suspicious activities immediately to Maritime Rescue Coordination Centre (MRCC), the ship continued sailing for 70 km on its route to Egypt without reporting the incident and that they gave information only when contacted by the Coast Guard two and a half hours after the incident, upon which they were asked to proceed to Kochi. He added:

"If they thought they were being chased by a pirate vessel, they should have carried out evasive manoeuvres to alter the course of the ship, as enunciated by the guidelines. If the skiff was still after them, they would've fired a few warning shots well above the bow of the pirate vessel to deter it. Unfortunately, they do not seem to have done any of this. The Italians are claiming that this was a successful anti-piracy operation, but it is crystal clear that the fishermen were unarmed and were not attempting to come alongside the tanker to board it. As the tanker crew claims to have been fired upon, I sent INS Kabra to ascertain if there were bullet marks on it. It went around the ship to find that there was none. I've also asked my men to verify the tanker's logbook to account for the number of rounds fired by the guards. This is to see if they had fired any warning shot at all. What are you talking about the fishing vessel giving you a chase when the maximum speed it can attain is just about eight knots?"

Victims

The bodies of the two fishermen, Gelastine (45) and Ajesh Binki (25), were brought to Neendakara harbour late on the night of 15 February 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 Nagercoil district and buried. The Kerala government announced a solatium of 500,000 Indian rupees (€7.500) to the families of each of the victims, while the Tamil Nadu government announced a solatium of 500,000 rupees (€7.500) to the family of Ajesh Binki.

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 (USD $200,000) in monetary relief from the Italian shipping company that owned the ship Erica Lexie, an amount they consider necessary for Gelastine children's education and future requirements. On 23 February, two sisters of fisherman Ajesh Binki also filed a petition in Kerala High court seeking monetary relief of 20,000,000 (USD $400,000).

On 27 February, Freddy J, the owner of the fishing boat, St Anthony, filed a petition in Kerala High Court seeking 7,200,000 rupees (USD $145,000) for damage that the boat suffered as a result of shooting.

Diplomatic fallout

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. On 17 February, Indian External Affairs Minister S. M. Krishna informed the Italian Foreign Minister in a telephone conversation that the fishermen were unarmed and posed no threat to any ship. 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 and discussed the case with Indian officials. However, the meeting between the Indian and Italian officials failed to yield agreement.

Maja Kocijancic, the official spokeswoman for European Union foreign policy Chief Catherine Ashton on 13 March stated (Sic)

"The EU is in contact with Italian and Indian authorities in the hope of finding a satisfactory resolution of this case as soon as possible. The EU has deployed navies to police the coast of Somalia since 2008 and would like the use of armed guards regulated within the International Maritime Organization. This is a much broader issue that needs to be addressed in order to make sure we do not see incidents and problems that we are faced with in this particular case, and that's why we are keen to take this forward."

The filing of a charge sheet for murder against the two accused Italian Marines before the Kollam Chief Judicial Magistrate Court on 18 May by the Special Investigation Team (SIT) prompted the Italian Government to briefly recall its ambassador to India for consultations.

On 14 December, the Italian foreign ministry summoned the Indian Ambassador to express the Italian Government's "strong disappointment and profound bitterness" that the Indian Supreme Court has reserved its verdict on the question of court jurisdiction which it heard on 4 September. 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 has 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 have mentioned that legal and political-diplomatic initiatives will be initiated at the international level. Italian media reports claim that Italy will escalate pressure by taking India to the International Court of Justice in The Hague to settle the dispute if a solution is not found by mid-January 2013.

Major disputes

Time and location of the shooting

According to Indian authorities, the firing occurred in the contiguous zone that is well within its jurisdiction. The Indian Directorate General of Shipping stated: "It has been reported to this Directorate that the Italian flagged MV Enrica Lexie, resorted to firing on an Indian fishing vessel in position 09 20N 075 52E (heading 345 speed 14 kts) at 1700 Hrs on 15th February 2012. The vessel MV Enrica Lexie is carrying six Italian armed guards. The firing has reportedly resulted in the death of two Indian fishermen. The vessel was bound from Singapore to Egypt with a crew of 19 Indians. The Coast Guard intercepted the vessel and escorted her to Kochi for investigation. The vessel has anchored at Kochi on 15th February 2012 at 2300hrs (IST). The Principal Officer, MMD Kochi has been directed to conduct the preliminary inquiry into this incident resulting in the loss of life of two innocent Indian fishermen" A statement by India's ministry of external affairs denied that the fishermen were armed.

In an article based on details obtained from undisclosed Italian Defense Ministry sources, journalist Fiorenza Sarzanini of the Corriere della Sera alleged that satellite tracking confirmed that the Italian tanker was “thirty-three miles off the south-west coast of India”, i.e. outside India's territorial waters and contiguous zone both, but within India's Exclusive Economic Zone when the incident occurred. The time of the shooting, at 11:30, according to Italian sources, also differs considerably from the version given by Indian Coast Guard, so that it could be conceivably that two distinct incidents had actually happened. Moreover, the article alleges that the Italian Navy ordered the merchant navy crew and Italian Navy marines on board not to obey orders from Indian authorities. The Italian Navy had reportedly objected to the Enrica Lexie moving into Indian waters and the disembarkation of its military personnel on board, reported Corriere della Sera website

Italian Foreign Minister Giulio Terzi tweeted: "In no case should the ship have entered Indian waters (...) The polemics on responsibility I leave to others."

The Italian ambassador to India stated that he wanted to underline that the Enrica Lexie had voluntarily proceeded to the port of Kochi.
This seems to contradict both

• documentary evidence submitted to court authorities by the Indian Coast Guard showing that the Enrica Lexie changed course only after being directed by the Indian authorities

and also

• the information published in the Italian media stating that the Enrica Lexie initially received orders from the Italian Navy to leave the Indian EEZ and not change course towards Kochi.

Italian Foreign Minister Giulio Terzi, in an open letter to Italian newspaper Eco di Bergamo, alleged that "the entering of the Enrica Lexie into Indian waters has been the result of a subterfuge by the local police, who required the ship master to head for the port of Kochi in order to contribute to the identification of some suspected pirates."[1]. Neither the Indian Coast Guard nor other Indian authorities have issued an official confirmation to validate this claim. Evidence submitted in the form of the Indian Coast Guard Board Officer's report to the Kerala High Court contradicts Giulio Terzi's claim of subterfuge with a narrative stating instead that the vessel had to be forced to comply: "after the incident, the vessel traversed almost 3 hours and made good a distance of 39 NM from the original position, and only after interception by the Indian Coast Guard the vessel sent an e-mail to her owner at about 19.17 hours on 15.2.2012 reporting the incident; and therefore it was evident that the master had no intention of promptly reporting the incident to either the coastal state or the flag state, nor had he made any attempt to report the incident to the coastal authorities. The vessel sent out message regarding the incident, only after being forced by the Coast Guard to proceed and anchor at Kochi".

Legal jurisdiction

Lee Adamson, head of the public information services for the International Maritime Organisation (IMO), stated that the IMO could not intervene in the diplomatic row between India and Italy. “Any loss of life at sea is regrettable. However, we are unable to offer you any comment on the circumstances surrounding this incident. It seems, from the facts that have emerged thus far, that this is not something covered by any IMO measure”. IMO guidance to shipowners, operators and masters refer to the use of privately contracted armed security personnel (PCASP) in high-risk areas. The guidance states that a ship’s master or captain will be in command and will retain the overriding authority on board. PCASP should be fully aware that their primary function is the prevention of boarding (by pirates), using the minimal force necessary to do so. Mr Adamson clarified that “The PCASP guidance (to shipowners/operators) adopted by IMO deals with privately contracted armed security personnel (PCASP), not with the presence of government military personnel on board merchant ships,” Adamson added, “IMO does not address the concept of ‘rules of engagement’ as this is a military concept, outside the organization’s remit.”

The Oil Companies International Marine Forum held at IMO Headquarters in London from 11 May to 20 May 2011 took note that the deployment of government military personnel on board privately owned merchant ships and also referred to as Vessel Protection Detachments (VPD) raises important issues pertaining to jurisdictions of littoral States in the event of an incident.[2]

In the aftermath of the incident both Italy and India cited provisions and limitations of the United Nations Convention on the Law of the Sea (UNCLOS) in order to establish jurisdiction over investigation and prosecution of the alleged crime without coming to any agreement. The Italian government has claimed that the marines are elements of the State and that they enjoy absolute sovereign immunity. Italy also cited extra-territorial provisions of its laws to claim that the presence of military personnel deployed as VPD aboard the oil-tanker merchant vessel is governed by an Italian law conforming to U.N. anti-piracy resolutions, and hence such personnel are part of the Italian state and thus immune to the jurisdiction of foreign states. In response, India cited extra-territorial 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 commercial ships. India has also highlighted that there exists limitations to functional sovereign immunity such as when commercial activity is involved and drew attention to the fact that the Italian Navy marines were working on a contract basis for the protection of the private interests of the ship owner and therefore could in no way be treated as a discharge of sovereign functions. India has signed but not ratified the yet unimplemented United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.

According to some experts, the SUA (Suppression of Unlawful Acts) Convention allows for India to claim jurisdiction under Arts. 6(1)(1) and 6(2)(2) and Italy to claim jurisdiction under Arts. 6(1)(1) and 6(1)(3). Hence, both Italy and India have concurrent jurisdiction over the Italian armed guards, but as a purely practical matter, jurisdiction falls to the country that reaches the alleged perpetrators first, subject to the principle of aut dedere aut judicare (“extradite or prosecute”). The facts of the Enrica Lexie mirror those from the famous 1927 Lotus opinion by the Permanent Court of International Justice (PCIJ), where a French ship collided with a Turkish ship killing eight Turkish sailors on the high seas. The French captain was prosecuted in Turkish courts and the Turkish and French governments submitted the question of jurisdiction to the PCIJ. The latter held that, absent a relevant provision to the contrary, Turkish courts could exercise criminal jurisdiction over the French captain because the incident took place on the high seas and had a substantial effect on Turkey. However other experts claim that "reliance on the Lotus case is erroneous", international law had changed since then "and UNCLOS, 1982 specifically derogated from the principles laid down in the Lotus case and gives exclusive jurisdiction to the flag state (Italy)". Moreover, in the Lotus case Lieutenant Demons was a Lieutenant in France’s merchant marines, while in this case " the two marines were members of Italy’s military, specifically assigned to this commercial vessel in accordance with Italian law (which apparently was itself consistent with UNSC anti-piracy resolutions)", so that "Italian State sovereignty is much more directly at issue in the prosecution of Italian marines who were performing state-mandated functions".

Article 97 of the United Nations Conference on the Law of the Sea (UNCLOS) states that “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag state”. According to some experts, Article 97 has been quoted by the Italian authorities out of context, as it deals with ‘Penal Jurisdiction in Matters of Collision or any other incident of Navigation' and in the case of Enrica Lexie there was neither any collision nor any navigational incident. Additionally, as per these experts, Annexure III of UNCLOS stipulates certain freedoms that are recognized by the general principles of international law, wherein freedom of fishing is a part; hence, Enrica Lexie should have steered clear of the fishing vessel.

The IMO’s SUA Convention (SUA Act) was passed with the goal of suppressing international terrorism. The Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that “any person” who “performs an act of violence against a person on board a ship, if that act is likely to endanger the safe navigation of that ship,” that person has “commit[ted] an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act.

India and Italy do not have any Status of Forces Agreement (SOFA) agreement that would allow Italian defense personnel to claim absolute or qualified immunity from the Indian legal system.

On the matter of jurisdiction, whilst Italy will need to show exclusive jurisdiction, India only needs to show that it also has jurisdiction.

Arrest and incarceration of Italian marines

The Kerala Police charged two Italian marines aboard the Enrica Lexie, who were identified as Massimiliano Latorre and Salvatore Girone, with homicide under Section 302 of the Indian Penal Code and on 19 February 2012 took them into custody for interrogation.

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”.

Investigations

Indian investigations

Whilst the Kerala State Police is the principal agency tasked by the courts with the investigative process, other specialized agencies such as the Central Forensic Science Laboratory, Indian Coast Guard, Indian Navy, Indian Customs & Central Excise department, Central Industrial Security Force, Indian Mercantile Marine Department (MMD) and Trivandrum Medical College Hospital have assisted the police investigators with technical and logistical support.

Based on postmortem carried out on 16 February 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 insists that VDR data should be locked by the captain at the time of the incident and surrendered before the investigation officials immediately after berthing the vessel at the nearest port, in this case in Kochi on 17 February. Marine investigators use VDR data to identify command responsibility aboard seagoing vessels.

Italian investigations

Italian Prosecutor Elisabetta Ceniccola has opened an investigation in Rome against Massimiliano Latorre and Salvatore Girone of the San Marco Regiment attached to the Military Protection Department in accordance with Article 575 (homicide) of the Italian penal code in Rome." 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. They reportedly replied they didn't witness the shooting. The actual interrogations had been classified.

On 3 January 2013, when Girone and Latorre were in Italy for a Christmas leave conceded by Indian court, and just before they had to go back to Kerala, Prosecutor Cennicola and her colleague Giancarlo Capaldo interviewed them for 5 hours. 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.

Court proceedings

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 murder 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 cannot leave without a clearance from investigative agencies and only after paying 2,500,000 rupees (USD $ 50,000) as a guarantee against civil lawsuits pending against the shipping company.

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 has no authority to conduct investigation in the case and that courts in India have no jurisdiction as the incident occurred beyond Indian territorial waters. In response, the court granted one week's time to Kerala state and Central government in Delhi to file counter affidavits. 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 has already been launched against the two accused in Rome. The Kerala High Court asked Italy to file a statement on the inquiry initiated against two of its navy personnel for the killing of two fishermen and to produce the terms and conditions for deploying Italian military personnel on board Italian merchant marine ships. The Coast Guard submitted before Kerala High Court that the two marines fired 20 rounds at the fishing boat. The state government submitted that the arrested Italians refused to wear civil dress instead of their Italian naval uniform while presenting themselves before the courts.

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 the 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 have been filed under IPC sections 307 (attempt to murder), 427 (causing damage or loss) and 34 (acting in common intention). Article 3 of the Suppression of Unlawful Act of International Maritime Navigation has also been invoked in connection with the incident. The charge sheet included exhibits seized from the Enrica Lexie, notably the Voyage Data Recorder (DR), six Beretta guns, two mini-light machine guns, 1690 bullets and the deck-log of the ship and GPS.

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 will remain in India. The bail conditions set by the Kerala High Court including a bond of Rs. 1 crore each with two Indian solvent sureties for a like amount. The marines have to stay within a 10 km radius of the Kochi Police Commissioner's office and appear before the Commissioner on all days between 10:00 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 accepted to temporarily relax bail conditions for both Italian Marines by allowing them to travel to Italy for 2 weeks during the Christmas vacation period. Italy was required to pay a further bond of Rs. 6 crore (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 on turn gave directions to release the Rs. 6 crore bail, and for the marines to appear before it on 15 January, 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 extends 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 have 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 will be allowed to raise once again 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.

Return to Italy

On 22 February Girone and Latorre were granted a new permit allowing them to return to Italy, this time for four weeks, to vote at general election there. This permit was granted because of the written affidavit of Italy's sovereign representatives (ambassador of Italy in India with an email from the foreign minister and the prime minister) that the marines will be returned to face the indian courts. On 11 March the Italian Foreign Ministry stated that the two soldiers will not return to India to face their charges, as "an international dispute has sparked between Italy and India"; nevertheless, he stated he was '"open" to letting an international arbitrator assess the case'. On 12 March Indian Prime Minister Manmohan Singh responded to Italy that it was unacceptable for Italy to refuse to send back marines. On March 14 the Supreme Court of India restrained Italy's ambassador Daniele Mancini,from leaving India. Daniele Mancini can be tried for contempt of court by the Supreme Court of India if the marines fail to return in time.

Other issues

Olympic Flair, the Greek tanker

In the aftermath of the incident, the Indian Coast Guard identified four possible ships (Enrica Lexie, Kamome Victoria, the Giovanni and the Ocean Breeze) that could have been involved in the incident. All four ships were contacted by radio and asked if they were involved in a pirate attack. Only the Enrica Lexie responded positively and hence was asked by the Coast Guard to turn around and dock at Kochi.

ICC Commercial Crimes Service register indicates that a ship reported an attempted pirate attack while docked 2.5 miles away from Kerala coast. However, the ICC report of this incident makes no mention of the name of the vessel involved.

Italian media quoting undisclosed Italian sources claim that the vessel involved was the Greek tanker Olympic Flair and that it was never contacted by the Indian Coast guard. As per these reports, on 15 February 2012, around 20 robbers in two boats approached the Olympic Flair and attempted to board her. When the lookout crew raised alarm, the robbers aborted the attack and moved away. It has also been alleged that the Olympic Flair was also involved in a gun fire-fight.

On 21 February, the Hellenic Merchant Marine categorically stated said that no Greek ship was involved in a piracy attack off the coast of southern India in recent days.

Intervention by Catholic Cardinal of Kerala

According to Vatican-based Catholic news agency Agenzia Fides, the newly consecrated Cardinal of the Catholic Church, Mar George Alencherry from Kerala, has called for a "peaceful solution" to the issue. He has appealed to the Kerala government not to resort to "precipitate action" and warned the opposition against trying to exploit the situation. He said, "I am and will remain in close contact with the Catholic Ministers of Kerala and I hope that they will help to pacify the situation."
However, a spokesman of the Kerala-based Syro-Malabar Church said that the statement of Alancherry was "distorted" by media and he had not said anything that went against India's position on the issue.
The news report from the Vatican Insider quotes Alencherry as follows, "I learnt about the Catholic fishermen who were killed: it is very sad. I contacted Catholic ministers straight away, asking the government in Kerala not to act hastily. Errors of course were made during the incident, as fishermen were mistaken for pirates. The point, however, is that it seems the opposition party wants to take advantage of the situation and manipulate the case for electoral reasons, making reference to western powers and to America’s attempt to gain supremacy."
The Cardinal later issued a press statement which said, "The report of the Italian press agency is wrong. The agency removed the report and expressed their apology for the mistake. I have not tried to intervene in this matter, nor have I contacted any ministers regarding this. Two precious lives have been lost. Strong legal action should be taken against the guilty."

Monetary compensations

On 24 April, the Italian government concluded an out-of-court settlement whereby which they paid 10,000,000 rupees (€150,000) to each of the victims' families. A “without-prejudice offer” was made to the legal heirs in the form of a one-time full and final ex-gratia payment of Rs. 1 crore so as to enable the first party (legal heirs) to rebuild their lives. The agreement said the legal heirs agreed that such a “without-prejudice offer” did not fasten on the Italian government, its citizens, and instrumentalities, the two naval marines or other defendants in the admiralty suits, and its officers, employees, agents, subsidiaries, affiliates … any liability whatsoever on account of the unfortunate and untimely demise of the fishermen. In exchange, the relatives of the fishermen withdrew their criminal liability claims.

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 settlement was not a monetary compensation : "the settlements have been made by the Republic of Italy to the claimants-plaintiffs not by way of compensation in the proceedings initiated by them but by way of goodwill and gesture" adding that "the settlements arrived at between the Republic of Italy and claimants-plaintiffs could be set aside by this Court in exercise of its powers under Article 142 of the Constitution of India"

Italian Navy flags display on Formula One cars

Italian car manufacturer Ferrari decided to adorn its Formula One race-cars at the 2012 Indian Grand Prix with Italian Navy flags.

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.

Impact on anti-piracy measures

The episode sparked speculation about the pro and cons of anti-piracy measures such as the employment of Private Security Contractors and Armed Military Guards on-board commercial shipping vessels, and whether either the former or the latter are preferable. In the words of Roger L. Philips " If these two marines are granted State immunity and let go, it could be an encouraging sign to other seagoing nations to support VPDs on their own flagged vessels. If State immunity is denied, and VPDs risk the same liabilities that exist with PMSCs, it could discourage states from continuing to provide VPDs. In the latter case, shipping companies would be left to decide whether to hire PMSCs and take on the liabilities that come with hiring companies in a loosely regulated industry. The stakes are very high as one report valued the PMSC industry for piracy alone at around $1 billion in 2011."

European Union High Representative for Foreign Affairs Catherine Ashton, during talks with Italian Premier Mario Monti, assured him of the European Union's support to finding a diplomatic solution with India. According to Ashton's spokesperson Michael Mann, she stated that 'cooperation with the EU and India in the fight against piracy was "a mutual interest" but stressed that the legal basis for arming cargo vessels needed to be looked into.'

On 26 September, in a speech to United Nations General Assembly, Italian Prime Minister Mario Monti stated (Sic)

International efforts to protect sea lanes and fight piracy can be effective only if all nations cooperate in good faith, according to the established rules of the international customary law and UN conventions, including those protecting the jurisdiction of the flag of the State in international waters. This august Organization can expect no less from each member State, and especially from those members that aim to have a decisive influence on the rules of global governance. Any erosion of the sending State's exclusive jurisdiction over servicemen on official duty would jeopardize the status of our agents on international missions. Consequently, it would also undermine the sustainability of UN peacekeeping missions.

This rationale was reasserted during the UN Security Council debate after the 6865^th 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.

See also

• MSO: Combined Task Force 150, Combined Task Force 151
• 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.