Italian marines won’t ‘suffer’ in Indian courts for killing Kerala fishermen, PCA ensures

The final ruling in the Italian marines case by the Permanent Court of Arbitration in Netherlands came on 31 May 2020 but it has largely gone unnoticed in India.

File photo of a ship seen off a coast in Kerala | Representational image | Photo: Dhiraj Singh | Bloomberg

The controversial case that involved the killing of two Kerala fishermen by two Italian marines onboard MV Enrica Lexie nearly eight years ago concluded on 31 May 2020, in the Permanent Court of Arbitration. The implications of this decision, however, have gone largely unnoticed in India. Originally, only excerpts of this decision were released to the public, with the full arbitral award subject to a confidentiality review by the two nations. The final award, published inconspicuously some weeks ago sans fanfare, presents a troubling picture. Departing from established doctrine and riddled with contradictions, the PCA’s award seems almost at pains to contrive a legal path to ensure that the Italian marines accused of murder do not have to ‘suffer’ through a trial in Indian courtrooms.

One must remember that this case arose when two underprivileged Indian fishermen, sailing a skimpy vessel in Indian waters, sleep deprived after a night of exertion, made the mistake of straying too close to an Italian oil-tanker. The occupants of the latter vessel, armed to the teeth as they were, mistook the belts worn by the fishermen for guns, immediately concluded that they must be pirates, and opened fire upon them. The two fishermen were shot, and died bleeding out through their eyes and ears, screaming for their mothers. These are facts recorded by the arbitral award and cannot be contested. Make no mistake: this is, undoubtedly, a case of capricious policing. Yet, a tribunal seated in the Netherlands went to extreme lengths to ensure that those responsible for this killing could not be held to justice in Indian courts.

The finding on immunity

Much of the PCA’s award concerns the legality of India’s actions preceding the arrest of the marines – in particular, the manner in which it sought to bring the Italian vessel, Enrica Lexie, to the port of Kochi. After concluding, unavoidably, that India had done no wrong in the procedure it adopted to bring the vessel to shore, the tribunal proceeded to consider whether the marines could still be protected from the criminal jurisdiction of India, through the principle of immunity ratione materiae. 

In essence, this rule precludes State officials acting in their official capacity from being tried for such conduct in the courts of a foreign nation. Finding that the marines in question were members of the Italian navy, on duty as part of a Vessel Protection Detachment commissioned to protect the Enrica Lexie from piracy, the tribunal concluded that they were entitled to such immunity and ordered India to “cease to exercise its criminal jurisdiction over the Marines”.

While one might find it difficult to contest the finding that the marines were, in fact, State officials, the award’s analysis on why they were carrying out an ‘official function’ seems woefully inadequate. Indeed, as the dissenting opinion of P.S. Rao notes, the marines were deployed to protect private property on a commercial cargo vessel and were remunerated for their services by the ship-owner and not the government. Under such circumstances, the finding that their conduct was in furtherance of an official sovereign function of the Italian government does seem suspect. Yet, this is hardly the most troubling aspect of the award.

The question of jurisdiction

To understand why the tribunal’s finding on immunity is manifestly weak, one must remember how this case arrived before the Permanent Court of Arbitration.

On the arrest of its marines, Italy invoked the compulsory dispute resolution provisions of the United National Convention on the Law of the Sea (UNCLOS), in order to initiate proceedings against India through Annex VII arbitration. Crucially, as per Article 286 of the UNCLOS, a tribunal established under its auspices may only have jurisdiction to try disputes concerning the “interpretation or application of this Convention”.

Immunity ratione materiae is not, however, a question that concerns the law of the sea, nor one addressed by the Convention; rather, the contours of this rule are to be found in general customary international law. As such, the issue of the immunity of the marines is one that falls squarely outside the jurisdiction of the PCA in this case, and ought not to have been ruled on at all. The arrest of the marines took place at the Kochi port, on land, and can hardly be described as an issue concerning the law of the sea.

The award tried to skirt this issue by arguing that the question of immunity is ‘incidental’ to the main question in the current dispute, on which State had criminal jurisdiction in this matter and, as such, it was a topic that the tribunal could be allowed to tread on. Clever as this might sound, it is little more than chicanery guised in legal jargon.

It is a fundamental rule of international law that a State cannot be subjected to the authority of a tribunal unless it has consented to the same. Therefore, when an international court is accorded jurisdiction, such jurisdiction is to be read narrowly to match precisely the boundaries that have been set out for it. It cannot usurp functions that lie outside its ambit simply because it is convenient to do so; indeed, it was only last year that the International Court of Justice (ICJ) in the Certain Iranian Assets case refused to consider the question of sovereign immunity specifically because it was not provided for in the treaty conferring jurisdiction.

The PCA itself carried out a similar exercise in the South China Sea case, where, due to a lack of jurisdiction, it trimmed out the issue of sovereignty over the Spratly rocks, crucial as it was to the case, and only ruled on the question of overlapping maritime entitlements.

If the tribunal felt that such ‘trimming’ was not appropriate in the dispute between India and Italy, because it could not rule effectively on the question of criminal jurisdiction without considering the issue of immunity, it ought to have declined jurisdiction altogether – as the ICJ did in the East Timor case. In fact, members of the tribunal themselves pointed out, in the dissent, that such assumption of jurisdiction is wholly inappropriate. Yet, ignoring legal precedent and advice from the bench, the tribunal decided to seize jurisdiction on this issue in order to protect the marines from criminal proceedings in India.

The outcome

For many, this is an award on criminal jurisdiction and sovereign immunity, and nothing more. This does seem to be the theme focused on in most writing on this judgement. However, it seems remiss, in the political context we now find ourselves – where bedlam sprouted by selective over-policing and racial violence perpetrated against the Black community burns through the United States – to ignore certain parallels that underscore the core facts of this dispute.

The allegation that international law carries a prejudice against developing nations, and that its judges carry Eurocentric predilections is hardly a novel one. In a climate where such injustices can no longer go unnoticed, the Enrica Lexie award only offers further proof that the international legal system is just as skewed as the domestic one.

The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.