South Asia Analysis Group Paper No 6733 – 15 January 2021
(SAAG in arrangement with Eurasia Review and Sri Lanka Guardian)
The eight-year-old Enrica Lexie case involving the killing of two Indian fishermen off the coast of Kerala in 2012 seems to have reached the final phase of its trajectory. As the reports suggested, the Governments of India, Italy, and the Indian state of Kerala have apparently come to an agreement on the question of compensation following the Supreme Court of India’s firm position on the issue with the final Award from the Permanent Court of Arbitration (PCA) in 2020.
The Enrica Lexie case had, in fact, caused some strains in India-Italy relations too in the last decade. The question of ‘jurisdiction’ and ‘trial’ of the Italian marines, who killed the Indian fishermen, became a matter of dispute from one level to the other—from the state of Kerala to the Supreme Court of India and then to the PCA at the Hague.
Observers pointed out that the PCA decision of May 2020 eventually came as a setback to India with Italy’s claim of its jurisdiction over the trial of marines being accepted. India’s Ministry of External Affairs (MEA), however, noted that the PCA “upheld the conduct of the Indian authorities with respect to the incident under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS).” The Tribunal held that “the actions of the Italian military officers and, consequently, Italy breached India’s freedom of navigation under the UNCLOS Article 87(1)(a) and 90.” It also observed that “India and Italy had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the Marines.”
According to MEA, the PCA “rejected Italy’s claim to compensation for the detention of the Marines.” Moreover, it was also a relief for India that the Arbitral Tribunal decided that “India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St. Antony.” The PCA Tribunal further held that “the Parties are invited to consult with each other with a view to reaching agreement on the amount of compensation due to India.”
Upon the PCA Award, the Government of India filed a special leave petition before the Supreme Court on 3 July 2020 seeking disposal of the criminal proceedings against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone, the two Italian marines who were accused of killing the Indian fishermen.
The Chief Minister (CM) of Kerala, however described the Award of the Tribunal and the consequent decision of the Union Government—seeking the disposal of all cases before the apex court—as “shocking’ and “unfortunate.” Requesting to consider a review petition to address the major contention of India, the CM said that all issues, including the compensation to the victims, needed to be taken up. The Government of Kerala also got involved in the subsequent negotiations for compensation.
The Supreme Court, which in September 2015 had ordered a stay on all proceedings in Indian courts during the pendency of the case before the PCA, did not fully concur with the Union Government’s stand. The court took a position that the compensation issue cannot be diluted under the terms of the PCA “award.” It requested all parties, including the relatives of the victims, to be heard, before a final settlement.
The current move to settle the matter—with the Italian Government reportedly having agreed to pay Rs 10 crore as compensation to the relatives of the victims—is expected to be completed with the Government of India submitting an affidavit to the apex court with the consent of all parties.
As per the terms reported in a section of media, Rs. 4 crore each will be given to the dependents of the two deceased fishermen—Valentine from the Kollam district of Kerala and Ajesh from the Kanyakumari district of Tamil Nadu. The owner of St. Antony will also get Rs 2. crore for the damage. Even as this gets underway, others onboard the fishing vessel have lodged a complaint with the Union and the State governments over the attempts to settle the issue by violating the order of PCA which, they pointed out, acknowledged the right to compensation for all 11 people on board including a 14-year-old boy.
It was on 15 February 2012 that the Indian fishermen on board St. Antony were killed in a firing when the Italian-flagged commercial oil tanker MV Enrica Lexie was on its way from Singapore to Egypt with a crew of 34 accompanied by six Italian navy marines. St. Antony was getting back from the Laccadive Sea when the Italian marines fired at them without any provocation.
The Indian Coast Guard said that the incident occurred when St. Antony was around 20.5 nautical miles (38.0 km) off the Indian coast within the Contiguous Zone (CZ) area of India’s exclusive economic zone (EEZ). Following the incident, the Indian Coast Guard intercepted the oil tanker and it was instructed to move to the Kochi port. The two Italian marines—Latorre and Girone—who were held responsible for shooting while on guard duty were arrested on 19 February on charge of murder under Section 302 of the Indian Penal Code (IPC).
In April 2012 the Italian government with the mediation of some people was reported to have come to an agreement with the legatees of the two deceased fishermen. They had also impleaded themselves before the High Court of Kerala. Subsequently, the legatees said that they would withdraw all the case against the Italian marines. As per the agreement—which the High Court also knew—the Italian government would pay a compensation of Rs.1 crore to the victims’ families.
This was later criticized by the Supreme Court saying that the act amounted to “challenging the Indian judicial system” and it was “impermissible.” The criminal case later went from the Supreme Court to PCA.
Meanwhile, in April 2013, the National Investigation Agency (NIA) of India filed a first information report against the two marines for charges of murder, attempted murder, mischief and conspiracy. The following year saw the case being charged under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA).
Italy came down heavily against the move and warned that the prosecution under the SUA Convention would amount to converting the incident as an act of terrorism. Even as the bilateral ties between the two countries soured on these issues, India decided to drop the SUA charges and downgraded the case.
Yet, even as the legal proceedings in the apex court got underway, Italy tried to mobilise support from the European Union (EU), NATO and its other allies. New Delhi, however, criticised the EU for its appeal to submit the case to international arbitration.
Notwithstanding India’s objections, Italy took up case before PCA on 26 June 2015 under Article 287 and Annex VII, Article 1 of UNCLOS. Italy argued before the PCA that by directing the Enrica Lexie to change course and proceed into India’s territorial sea and escorting her to Kochi, India violated Italy’s freedom of navigation, in breach of UNCLOS Article 87(1)(a), and Italy’s exclusive jurisdiction over the Enrica Lexie, in breach of Article 92 of UNCLOS and abused its right to seek Italy’s cooperation in the repression of piracy, in breach of Article 300 read in conjunction with Article 100 of UNCLOS. It was also contended that by initiating criminal proceedings against the Italian marines, India violated Italy’s exclusive right to institute penal or disciplinary proceedings against the Marines, in breach of Article 97(1) of UNCLOS.
On the other hand, India argued that by firing at St. Anthony and killing the fishermen aboard that vessel, Italy violated India’s sovereign rights under Article 56 of UNCLOS and India’s freedom and right of navigation under Articles 87 and 90 of UNCLOS.
The Tribunal examined the facts and the contentions put forth by Italy and India. On 21 May 2020, the Arbitral Tribunal—having determined that it has jurisdiction over the dispute—unanimously held that India’s counter-claims are admissible and that Italy has violated aforementioned provisions of the UNCLOS. The Award was notified by the PCA on 2 July 2020.
However, the Tribunal also held that the Italian marines “are entitled to immunity in relation to the acts that they committed during the incident, and that India is precluded from exercising its criminal jurisdiction over the Marines.” Taking note of Italy’s commitment to resume criminal investigations into the St. Anthony firing incident, the Tribunal directed India to take the necessary steps in order to cease the exercise its criminal jurisdiction over the Marines.
The Tribunal award further said that the shooting at the St. Antony “amounted to physical interference with the freedom of navigation of the St. Antony and constituted a breach of Article 87, paragraph 1, subparagraph (a), and Article 90.” It said that based on the limited evidence available to the Arbitral Tribunal, as a consequence of such breach, crew members of the St. Antony “suffered loss of life, physical harm, material damage to their property (including to the St. Antony itself), and moral harm.” “India is accordingly entitled to payment of compensation in respect of such damage, which by its nature cannot be made good through restitution.”
Meanwhile there were criticisms in India that there was a mishandling of the case at some stage. Former Indian Ambassador to Italy, K.P. Fabian in an article in The Wire (13 May 2016) said that shooting unarmed, innocent fishermen and killing them was not an “incident of navigation” but “a crime.” He argued that since “UNCLOS does not apply, and the incident occurred within India’s contiguous zone, the culprits tried to run away, and the victims were Indian nationals, it follows that India has jurisdiction over the matter.”
Ambassador Fabian also noted that the apex court also “contributed significantly to the confusion in two ways. Italy argued incorrectly that as Kerala had not signed the UNCLOS, it had no locus standi in the matter. The Supreme Court accepted that argument and stopped the proceedings in the Kerala high court. The fact of the matter is that since India had signed the UNCLOS, Kerala was only acting on behalf of the Union of India. He said that “the court complicated the matter further by saying that although it was seized of the matter it was willing to consider Italy’s plea that India had no jurisdiction in the matter.”
There were other arguments from legal experts that India had a strong case against Italy on several grounds. However, the case went out of proportion with PCA intervention when Italy tried to ‘internationalize’ it for its own reasons. At last, there was a feeling of relief in India too that Italy could not run away with the whole case.
Even as the case proceeded under international arbitration, with both parties submitting arguments before PCA, there was a high amount of confusion regarding the role, responsibilities and jurisdiction of the coastal states in India. Already there were a number of issues of Indian fishermen from the states of Kerala, Tamil Nadu, Gujarat etc while they were on fishing in high seas. India has taken up such issues with neighbouring countries like Sri Lanka and Pakistan in the past.
On many occasions, the question of violation of maritime boundary and the movement of fishermen in ‘high security’ zones led to arrests and detention in either countries. Many experts and scholars argued that the countries in South Asia must have a framework for addressing such issues of humanitarian dimension.
Though the Enrica Lexie case has had a different contesting ground and dimension, there are many lessons that India must learn from managing the case—from multiple levels of investigation to different agencies of legal dispensation. It also calls for an effective maritime governance architecture involving the stakes and concerns of coastal states of India.
