The recent arrest and prosecution of two Italian navy marines (Massimilano Latorre and Salvatore Girone), on board the Enrica Lexie, in connection with the death of two Indian fishermen (Valentine and Ajesh Binki) has received much media attention. With a spate of diplomatic communication and conflicting facts emanating from Indian and Italian corners, the legality of the Kerala High Court proceedings stands shrouded with uncertainty. Here, I attempt to briefly outline the international legal landscape in which this argument unfolds. Before delving into the legal issues involved, however, a brief outline of the (largely disputed) facts is helpful.
Broadly, as the Supreme Court narrates, “[o]n February 15, 2012, an (sic) First Information Report was lodged at Neendakara Coastal Police Station by one Fredy, owner of the Indian registered fishing boat St. Antony. It was alleged in the FIR that at 4.30 p.m. (IST) on that day while the fishing boat St. Antony was sailing through the Arabian Sea, incriminate (sic) firing was opened by an Italian Ship - M.T. Enrica Lexie (first Appellant). As a result of firing from the first Appellant vessel, two innocent fishermen who were on board … died. On the basis of FIR, Crime No. 2/2012 Under Section 302 of the Indian Penal Code, (Indian Penal Code) was registered”
The Italians dispute this version. First, they claim that warning shots were fired in the air and water surrounding the boat. Secondly, they claim that the Enrica Lexie was not, as the Indians claim, 2-3 nautical miles of the Kollam coast, but rather, 33 nautical miles away.
The larger question is: Are the Italian marines guilty as charged? That is a matter for the competent court to determine on an appreciation of the evidence. My inquiry here is to see which court is competent, the Indian or the Italian?
This, in turn, depends on two related questions: First, can Indian courts exercise extra-territorial jurisdiction, and if so, is such jurisdiction precluded by sovereign immunity ratione materiae.
Broadly, international law governing the law of the sea is found the United Nations Convention on the Law of the Sea (UNCLOS) and customary international law – both binding on India and Italy. The UNCLOS establishes 3 zones, each with varying sovereign rights for the coastal state: the territorial sea (extending up to 12 nautical miles), the continental shelf (24 nautical miles) and the exclusive economic zone (200 nautical miles). This regime is reflected internally in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act of 1976 as well. Whilst the territorial sea envisages complete sovereign rights, the continental shelf is a halfway house for sovereign rights and the EEZ allows for limited exploitation of economic resources, scientific research, marine environment and artificial structures.
Assuming the offence was committed 2-3 nautical miles off the Kollam coast, India is justified in international law in exercising criminal jurisdiction within its territory, as any other crime. Assuming the validity of the Italian facts, however, the question concerns the exercise of extra-territorial jurisdiction.
I believe that India may nonetheless exercise criminal jurisdiction in such a case based on the passive personality principle along with the dictum of the Lotus and Arrest Warrant cases decided by the PCIJ and ICJ respectively.
A safe argument by India would rest on the famous dictum by the PCIJ in the Lotus case: that anything not prohibited by international law is permitted by it. Accordingly, it transfers the burden on Italy to find a rule of international prohibiting such exercise of jurisdiction. Though persuasive, the Lotus dictum has been described as “the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies.” (Joint Sep. Op., Judges Higgins, Koojimans and Burgenthal, Arrest Warrant case, para 51). Almost a century of state practice and opposition of unlimited extra-territorial jurisdiction would leave the Indian argument precariously placed. Whilst state practice can be found in support (see Filártiga v. Peña-Irala, and other instances recorded by Justice Breyer in Sosa v. Machain), these instances relate mostly to the lex speacialis of crimes under international law (torture, genocide etc.) that engage community interest. In fact, in the past few decades, disputes concerning exercise of territorial jurisdiction have witnessed objections on the lack of a positive right to exercise jurisdiction. (demonstrated here). Indeed, Judge Simma’s recent attack on the Lotus principle in the Kosovo Advisory Opinion only stands to reaffirm this argument. Interestingly, here, Justice P. Gopinathan’s remark that the marines were engaged in ‘terrorist’ attacks would, arguably, engage universal jurisdiction. With respect, however, I believe that Justice Gopinathan’s remark had no bearing on his finding on jurisdiction, as the charge against the marines is of murder under the IPC, and not the Indian municipal counterpart of the terrorism, howsoever defined in international law.
Rather, I believe India would be well-placed in asserting jurisdiction on the passive personality principle. As Bassiouni recounts, jurisdiction may be asserted on the basis of territoriality and its extensions (if the crime was committed on the territory of the State), the active personality theory (perpetrator is a national of the State), passive personality (victim is a national of the State), the protected interest theory (where essential interests of the state are engaged in the crime) and the universality principle.
The question, then, is: does the passive personality principle find support in the UNCLOS/Geneva Convention (“GC”) or customary rule of international law? My answer is yes. Though ships are subject to the “exclusive jurisdiction” of the flag state (Article 92, UNCLOS; Article 6, GC), Article 96 and Article 11 respectively speak of complete immunity of government non-commercial ships from the jurisdiction of any State other than the flag State, implying the possibility of jurisdiction in commercial ships. More specifically, though, the Article 97(1) of UNCLOS and Article 11(1) of the GC exclude the passive personality principle explicitly, though only in relation to a collision or other navigational incident. However, as per a literal reading under Article 31 of the Vienna Convention, and as the travaux demonstrate, these provisions contemplate guilt for maritime fault, rather than ordinary crimes such as murder.
It is here that the rules of custom are more developed. Though repudiated in the American Restatement, and the Harvard Draft Convention, Bassiouni reluctantly admits that “the [passive personality] theory … must continue to be considered applicable in any situation in which its use is not prohibited by international law.” Articles 97 and 11 notwithstanding, I am unaware of any independent proscription. To the contrary, the extradition of Adolf Eichmann by Israel in 1973, prosecutions under the Sexual Offences Act in the United Kingdom post 2003 and Art. 113-7 of the French Code Pénal, amongst other instances of state practice support this principle.
Finally, one must mention the similarity of the present facts and the Lotus case, where Turkey was questioned for prosecuting French seamen for the death certain Turkish seamen in a collision between French and Turkish ships. There, the Court vindicated the Turkish stand. Although the precise basis for establishing jurisdiction is unclear from the judgment, the Court in the Assert Warrant case clarified that a combination of floating territoriality (indicating sovereignty over the victim boat) and passive personality was sufficient to engage jurisdiction – and that is precisely the case here.
Having argued that Indian Courts can exercise jurisdiction under international law (the question of whether the IPC permits such an action in Indian law remaining untouched), the next relevant question is of sovereign immunity, as claimed by the Italian Republic. Sovereign immunity may be as against the individual’s status (ratione personae) or that which attaches to his functions (ratione materiae). The former is limited to high-ranking officials (heads of state and the like) and thus, it is reasonable to exclude the Italian marines from this sphere. (Cassese in his treatise ‘International Criminal Law’, 309-10 deals with this comprehensively). The question of functional immunity presents a greater challenge. In a nutshell, such conduct-based immunity may be claimed by state officials in respect of official acts. So, are the Italian marines ‘state officials’, and was their act of killing an ‘official’ one? I answer both in the positive. First, the term ‘state official’ is not defined under treaty. The International Law Commission, in its work on privileges and immunities, however, adopted the definition of State organ under the ILC Articles on State Responsibility, which is “not limited to the organs of central government, to officials at a high level or to persons with responsibility for the external relations of the State, [but also] organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy”. This is supported by state practice, notably the Pinochet No. 3 case in the UK, the 23rd November 2004 Court of Cassation judgment concerning head of the Malta Ship Registry and the exemption granted by the US District Court of Columbia in Belhas to the head of Israeli Army Intelligence (466 F. Supp. 2d 127). Thus, one must see whether the acts of the marines are attributable to the Italian Government, as the converse would satisfy the test for immunity. Cleary, these acts fall within Article 4 of the Articles on State Responsibility. The next question is whether the acts were ‘official acts’? Here, crucially, whether or not an act is jure imperii “does not depend on the international legality or otherwise of the conduct, but on whether the act in question is intrinsically governmental. This in turn depends on an analysis of the nature of the act as well as the context in which it occurred” (Akande & Shah, EJIL, 830). Here, the acts occurred in the context of use of armed force/exercise of police power as against a possible pirate threat. Indeed, the two marines were placed on the ship by the Italian Government, and not through a third-party private operator. In terms of the acts they performed, i.e. protecting Italian property from piracy, the nature of the act in itself tends towards a state function. Whilst facts in this sphere are not fully disclosed (nature of the appointment of the marines, their assignment, scope of authority on board the ship, reporting authority etc.), the available information does tend towards a favourable outcome for the Italians. In fact, in a somewhat ‘discrete’ manner, the Italian Government has also ‘settled’ its case (further evidence of attribution) with the first informant Fredy and 3 others for an undisclosed amount in three Admiralty Suits before the Lok Adalat.
Given the intricate factual and legal matrix, one hopes that these points of international law are fully appreciated by the Kerala High Court (one way or another), and the machinery of international law respected at a time where Indian interests are also constantly engaged in other states.
Guest post by Raag Yadava, a student at the National Law School of India University. The views are his own.