Is Immunity for Killing Two Indian Fishermen Justified? Curious Case of “Enrica Lexie”

[Atul Alexander is an Assistant Professor of Law at the The WB National University of Juridical Sciences.]

On 2^nd July 2020, the Permanent of Court of Arbitration (PCA) had put out a six-page Award (extracts for advanced publication) on the 2012 Enrica Lexie incident. To put it in perspective the Enrica Lexie case arose in the backdrop of two Italian tankers flying the Italian flag, 20.5 nautical miles from the coast of Kerala, opened fired at a fishing boat named St. Antony on the mistaking it as a pirate vessel. An FIR was lodged against the two marines on board the Italian tanker viz. Massimilano Latorre and Salvatore Girone under sec. 34 and 302 of the Indian Penal Code (IPC). Subsequently, Italy filed a writ petition in the Supreme Court of India (SCI), challenging the proceeding in the Kerala High Court, one of the main contentions of Italy was on Article 97(1) of the United Nations Convention on Law of Seas(UNCLOS), the provision reads as;

“In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national”.

The Kerala court interpreted the phrase ‘incident of navigation’ in abovementioned provision as it cannot be extended to an incident involving criminal acts, in this case, the killing of two Indian fishermen on the Indian fishing vessel, further, the court held that Article 97(1) applies only on the high seas which do not form the part of Exclusive Economic Zone (EEZ), Territorial waters or internal waters of the country. Following this, the investigation was ceased by the National Investigating Agency (NIA) from the Kerala Police. On 26 June 2015 Italy took up the matter with the International Tribunal for the Law of the Sea (ITLOS) pursuant to Annex VII of UNCLOS and requested provisional measures, the ITLOS directed the case to the PCA, the PCA addressed the claims and counter-claims of Italy and India respectively.

Position of Italy and India on Article 97(1) of UNCLOS

In the aftermath of the incident, Italy on 16 Feb 2012 sent a Note Verbale asserting that its marines were only answerable to the Italian Judicial authority under Article 97 of UNCLOS. According to Italy, India violated Article 56 (2),92 and 97 of UNCLOS  by the arrest, detention and prosecution of the Italian Marines. Further, Italy in the requested for the provisional measure had indicated that “Sergeant Girone’s continuing deprivation of liberty, which is in breach of minimum guarantees of due process under international law, causes irreversible prejudice to Italy’s rights of jurisdiction over and immunity for its officials.”Moreover, since the officer in question was exercising his ‘official function’ at the time of the incident is thus entitled to immunity from Indian criminal jurisdiction. The source relied on by Italy to show the act was indeed an official act was Italy’s Law No. 130 of 2 August 2011, Article 5 of the said law provides for the possibility to deploy security personnel on merchant ships to deal with pirate attacks. Also, Italy citing the special rapporteur Anatolevich Kolodkin’s report of the International Law Commission (ILC) on the immunity of State officials from foreign criminal jurisdiction, observed that the immunity aspect is to be decided in limine litis of the proceeding, which the Indian court failed to acknowledge, further by failing to determine the immunity in limine litis resulted in an irreparable loss, but this is no justification for inflicting more of it in the coming years throughout the pendency of these proceedings. India viewed the question of immunity as a matter to be adjudged on the merits; also contented that Enrica Lexie was a commercial oil tanker that was not operated by Italy and not engaged on government service, therefore lacks immunity. Moreover, UNCLOS  is silent on any immunities for marines stationed on such a vessel.

First view on the Award  

As was evident from the arguments of Italy and India, the former had relied on it domestic law to confer immunity on the marines as the act was done in the ‘official capacity’ and hence claimed that India by assuming the Jurisdiction had breached the principle of Sovereign Immunity under international law for an official act done by the marines. Whether killing of the fisherman would constitute an ‘official act’ is debatable, and none of the international instruments defines what constitutes an ‘official act’, which is a question of fact. However, India’s position on Article 97(1) was merely on the admissibility front; it did not explicitly interpret the elements of 97(1) of the UNCLOS as was done by the Kerala high court. Hence the larger question is whether official immunity as asserted by Italy could override the right to life under international law, in this instance, the right to life of the innocent fishermen. It would be interesting to note the comprehensive views of the PCA on this precise issue.

The award rendered by the PCA decided, by three votes to two, in respect of Italy’s Submission that the Marines are entitled to immunity in relation to the acts committed; however, the PCA finding that Article 97(1) and (3) is not applicable in the present case is surprising as the reasoning would only be evident in the detailed award. Further, the award underscored the point that it has jurisdiction to decide on the immunities of the marines.

Immunity of ‘official acts’ under modern International Law.  

International Law contemplated two kinds of immunity; the first kind is immunity ratione personae which are conferred to a limited group of persons which inter-alia include head of state, government and foreign minister etc., the immunity does not envisage any exception even in cases of international crimes, second is the ratione material immunity which is conferred upon the state officials or the agents for the ‘official acts’ only, therefore is narrow in comparison to the ratione personae. In the landmark Pinochet case, which involved the former head of states of Chile who was accused of committing ‘Torture’ while in office, it was held that by the house of lords that, ‘Torture’ cannot be categorised as an ‘official act’, because according to the Torture Convention (CAT), Torture could only be committed someone in the ‘official capacity’. In the Arrest Warrant case, the International Court of Justice (ICJ) observed that for the purpose of an official act, immunity ought to be construed narrowly; moreover immunity does not mean impunity. The waiving of the immunity happens in the context of ratione materiae for international crimes; the killing of the fisherman cannot be interpreted to mean an ‘international crime’. However, the killing cannot either be viewed as an ‘official act’. As pointed by Prof. Dapo Akande, whether or not acts of state officials are regarded as official acts does not depend on the legality, in international or domestic law, of those acts. Rather, whether or not the acts of individuals are to be deemed official depends on the purposes for which the acts were done and the means through which the officers carried them out, the purpose as provided by Italy for the firing is premised on ‘piracy.’

            In the Italian Marines Case, Italy’s arguments were based on official immunity for the acts of its marines as the marines were active members of the navy and Vessel Protection Department (VPD) in line with the directives of the Italian Government. The VPD essentially functions courtesy an Memorandum of Understanding (MOU) between the Italian ministry (Defence) and ship-owners association the personnel under the VPN should abide by the instruction issued by the Ministry. The marines were exercising their functional immunity since the marines have links with the State and are thus acting as representatives of Italy; hence official immunity is a good line of defence. However the UNCLOS has in build provisions on sovereign immunity, the scope of which covers the ship operated by the State and warship, the immunity is extended to Ships and not to officials; therefore immunity cannot be conferred to the Marines. This was evident by Italy reference to UNCLOS provisions (Article 2(3), 56(2),58(2),95,96,297) to back the immunity claim, the tribunal rejected this; instead, the tribunal decided the question of immunity outside the framework of UNCLOS, hence the tribunal relied on Customary International Law which confers immunity on the State officials, which the tribunal had acknowledged (Award, Para 873), interestingly, the tribunal assumed ‘incidental jurisdiction’ when deciding on the question of immunity and also rejected the argument of India’s argument on ‘Territorial Tort’ exception to immunity. The dissent rendered by arbitrators Dr Pemmaraju Sreenivasa Rao and Patrick Robinson on the fact that the dispute did not fall under the ambit of Article 288(1) of UNCLOS concerning the interpretation or application of UNCLOS, hence the dissent essentially meant immunity forms a distinct point from Article 288(1), yet the tribunal brazenly embraced the Customary International Law argument extrapolating the language of Article 288(1).

The major takeaway is that the tribunal’s application of Customary Rules of International Law to a self-contained regime like UNCLOS could certainly impact other regimes in International Law and challenge the existing jurisprudence (Case Concerning United States Diplomate and Consular staff in Tehran United States of America v. Iran, para 86)

It is to be noted that, the applications that are presented to international tribunals arise in the backdrop of larger dispute/disagreement; the tribunals ought to exercise extra caution and work within its jurisdictional competence. Tribunals harping on an incidental question may sound sweet in resolving the question of fragmentation; nevertheless, this breaches the foundation of International Law ie. Consent.

Conclusion

The observations of the PCA on the necessary steps to cease the exercise of criminal jurisdiction over the marines is contrary to the decision of the SCI in Republic of Italy v Union of India (2013) 4 SCC 721 and further constrains the Indan coast guards from the exercising criminal jurisdiction over the EEZ, this may set a dangerous precedent as several fishermen who frequent the EEZ for making a living can face a similar plight. Despite the conferment of immunity, the tribunal has acted beyond its mandate of Article 288(1) thereby traversing the unknown domain Customary International Law. This could open the floodgates for self-contained regimes to fall back on principles of General International Law like Customary International Law or Jus Cogens. Italy, on the other hand, can waive the immunity and thereby institute the proceedings against the marines, which seems unlikely and other available option being both states could negotiate in good faith to reach an amicable solution as directed by the PCA.