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Home Diplomatic Immunity Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? According to Article 111 of the United Nations Convention on the Law of the Sea (UNCLOS), the hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Furthermore it provides that, “If the foreign ship is within a contiguous zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established”. It is not disputed that the Italian ship was within the contiguous Zone when the shooting incident took place. However, since the hot pursuit principle in the contiguous zone is limited to the prevention of infringement of ‘customs, fiscal, immigration or sanitary laws’, the legitimacy of the action of the Indian authorities in the context of an alleged killing is questionable.

Jurisdictional Claims:

The cardinal question on which the whole case is centred relates to the prescriptive jurisdiction of both India and Italy. It is undisputed that the cause of action arose beyond the territory of India and hence in the international waters. However, India bases its jurisdictional claims on domestic legislation which confers the Indian courts with the jurisdiction to try a person (including a foreigner) in respect of an offence committed on board a ship registered in India (Sections 3 and 4 of the Indian Penal Code and Sec.188 of the Code of Criminal Procedure).  As a matter of international law, the legality of the exercise of extraterritorial jurisdiction may be justified by a number of principles, including: (a) the “objective” Territoriality principle; (b) the “effects doctrine;” (c) the protective principle; (d) the Nationality principle; (e) the passive personality principle and (f) Universality principle. The common element underlying all these theories is the valid interest of the State on the basis of a ‘sufficient connection’ to the persons, property or acts concerned. At least three of the above mentioned theories support the jurisdictional claims of India. The so called objective territoriality principle, the protective principle and the ‘effects’ doctrine as enunciated by PCIJ in the Lotus case favours Indian arguments.

On the other side, Italy relies on various provisions of the UNCLOS, 1982. First, under Article 97, which provides for the ‘Penal jurisdiction in matters of collision or any other incident of navigation’ 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. Nevertheless, it’s a matter of common sense that, this case is no way related to collision or ‘incidents of navigation’. Secondly, according to Article 92, ships shall be subject to the exclusive jurisdiction of flag state while on the high seas. In addition, the well established ‘Nationality Principle’ of International law allows the state to exercise the jurisdiction with respect to the activities of its nationals abroad, including natural persons as well as ships, which are considered to be floating territories of the state. Hence, Article 92 read with the Nationality principle strengthens the Jurisdictional claim of Italy.

Now, which State has the primary right to exercise its concurrent jurisdiction? Here, it may be pertinent to undertake an interest analysis. Of course, both nations have their own legitimate national interests over and above the family interest on both sides. But, considering the dimension of criminal law as serving the societal disapproval of the alleged act and punishment as an act of retribution, a trial conducted in India and punishment meted out in accordance with Indian law would better serve victim satisfaction. The general principle of criminal procedure that a trial shall ordinarily be conducted at the place where the offence has been committed, justifies the Indian position. Additionally, a trial conducted in a foreign land would deprive the victims of their right to participate which is an essential aspect of fair trial. Moreover, considering the convenience of conducting investigation the case is tilted towards India.

The Scooting Incident

In response to the Italian contentions against the competence of the Courts in India, the High Court of Kerala had asserted the jurisdiction of the Indian Courts and later on allowed the marines to go home for Christmas under very stringent bail conditions including a hefty amount as guarantee. On an appeal contesting the jurisdiction, the Supreme Court of India in its decision on January 18 this year reaffirmed the Indian jurisdiction; however declared that the trial should be conducted by a special court in Delhi, not in the ordinary criminal courts in the state of Kerala. Later, on 22 February, the apex court allowed the marines to travel to Italy for casting their votes in the national elections, on the basis of an affidavit undertaking the responsibility of marines’ safe travel to Italy and return to India within a month. After the marines reached their home safely, the Italian foreign ministry through a note verbale informed the Govt. of India that their nationals would not be coming back and called upon India to resolve the issue through diplomatic means, as provided under UNCLOS. This development really complicated the matter. While the internal political pressure was mounting in India, the Supreme Court asked the Italian ambassador, on whose personal assurance the marines were permitted to go home, not to leave the country. The decision of the apex court has triggered a diplomatic standoff and the case was expected to go for an international adjudication. Surprisingly, as India was contemplating contempt proceedings against the Italian ambassador and further tough measures on bilateral ties, the Italian Govt. decided to send back their marines to India.

The Immunity Conundrum

The Italian argument for the immunity from legal proceedings is twofold. First, Can the Italian marines claim that they are covered by Sovereign functional immunity, as they are naval guards employed on board the Italian ship and therefore functioning under the instructions of the sovereign Republic of Italy? The Indian Supreme Court, without any deliberation on this issue, rejected this plea in the absence of a status of force agreement between India and Italy. But, whether functional sovereign Immunity is available to military personnel involved in a criminal proceeding abroad remains an unsettled question.

Secondly, considering a situation where the marines were not sent back and the SC decides to go ahead with the contempt proceedings against the ambassador, whether the ambassador could claim diplomatic protection under the Vienna Convention? Article 32 of the convention provides for waiver from the diplomatic immunity which should be expressly stated by the sending state. India has been considered a follower of the dualist approach of International law and the parliament has incorporated the said international Convention into municipal law, by enacting The Diplomatic Relations (Vienna Convention) Act, 1972. The general opinion doing the rounds in Indian legal circles was that, since Italy has invoked the writ jurisdiction of the Supreme Court under the Constitution of India, it may be considered as a waiver, though not express. Keeping in perspective the power of the Supreme Court under Article 129 of the Constitution to punish for contempt of itself, the apex court seems to have had the legal weapons in its armour. In any case, this has become an issue of contemplation as the marines are back.

How the ball came back to Indian Court?

As a stunning reversal of its earlier position, Italian govt. decided to send the marines back to India to face trial, on an assurance given by the Govt. of India regarding the protection of their fundamental rights. I am curious about, what all ‘basic human rights’ that India offers to protect the Italian nationals in this situation. The Indian authorities have assured inter alia that the marines would not face death penalty. This offer seems less significant; firstly because there is little chance of this case falling under the category of ‘rarest of rare’, which is an established criterion for awarding a death sentence in India. Secondly, the existence of an agreement between India and Italy (which India ratified soon after the shooting incident) regarding the transfer of sentenced persons, will come for the rescue of the Italian marines. According to this pact, the execution of the sentence shall be governed by the administering state, which will be free under its laws to provide alternative measures and is inspired by the Strasbourg Convention. However, capital punishment is an exception to the same. Therefore, a sentence of death, if at all, given by the Indian court would have to be carried out in India itself. Though there is a possibility of an executive pardon, the undertaking given by the Indian Govt. lifting death penalty, which is the maximum punishment provided under Sec 302 of IPC, even before the trial starts is highly questionable. Another important proposal from the Indian side is on the amenities to be offered to the marines during the trial. The marines will reside at the Italian embassy in New Delhi during the pendency of prosecution, which would be an over-the-top concession available to any under trial in India. All the same, this unexpected development has eased the diplomatic and political tension and now it is for India to set up a special court immediately, as directed by the Supreme Court and conduct the trial in a just and speedy manner. The international legal community looks up to how the Indian legal system addresses the issues of jurisdiction and sovereign functional immunity in this judicial process.

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12 Responses

  1. Luigi

    Thanks Hari for your description of the issue. The Italian conduct seemed too me quite inconsistent, I agree.
    I would add a note on the timing of the Indian courts:
    don’t you think that 13 months without a definitive decision on jurisdiction is too much? Why did the Supreme Court asked a speedy decision to the special Court only after 13 months, and after all these tensions between the two countries?
    I think that a faster decision from the Indian judiciary would have avoided all this confusion.

  2. Hari Sankar Harisankar K S

    Thanks Luigi, for your comment.
    I agree. But still, considering the ‘ordinary’ criminal justice system in India, this delay is reasonable!
    I hope that the special court will deliver a speedy justice.
    Regards
    Hari

  3. Ms. Priyanka M Jawale

    Hello, Hari and Luigi

    First I would like to congratulate Mr. Hari for giving a brief account of the case and the Indian Legal systems.

    In my opinion this is not the first and only case of Indian Supreme court in which Apex court established special court, this is not objectionable also. There are so many factors affecting for delay in the adjudication of matters here in India, a very well known amongst them is that, court’s in India always give substantial required time for the each case and its investigation. The reason behind is that for the sake of speedy justice delivery mechanism an innocent should not be get punished.

    I don’t want to justify the delay by the courts in India but in my personal opinion, courts delay is acceptable when they are dealing with the matter which is at high stake and may affect the diplomatic relations of both the states.

    If both countries restraint their self by avoiding interference in judicial matter then that will fasten the procedure.We should keep our full faith on judiciary especially when the matter is dealt by the Supreme Court of India.

    Regards,

    Ms. Priyanka Jawale

    Teaching Associate,
    Department of Law,
    University of Pune,
    Pune, India.

  4. Giacomo Pailli

    Thanks Hari for this useful piece.

    I agree with you all on the inconsistencies of the two parties and I will not comment on that.

    I disagree, though, with your last paragraph under the heading “Jurisdictional claim”. Your view of criminal law does not convince me.
    To me criminal law, and particularly criminal proceedings, are all about answering this question “should I deprive the person charged with the crime of her personal liberty?”
    Moreover, you consider that alla fair trial requires is that victims are allowed to participate: this puzzles me. I would say that fair trial requires, first and foremost, that the person charged is guaranteed at the highest degree from the State’s attempt of depriving her of liberty (or life).
    In conclusion, I would centre this part of the analysis on the person charged with the crime, rather than on the victims or society at large.

    Best regards,
    Giacomo

  5. Oliver Daum Oliver Daum

    Thanks to the author for his well-founded and comprehensive analysis. I would like to add three remarks though.

    First, now that the Italian mariners are on Indian soil, the exercise of jurisdiction over them by Indian criminal authorities is more a matter of fact rather than it may be grounded on a legal basis in international law.

    Second, I fully agree with the conclusion that Italy’s right to exercise jurisdiction conflicts with India’s right to exercise jurisdiction. However, I hesitate to conclude that India’s respective right prevails over Italy’s right here. One of the achievements of UNCLOS III was to set in Art. 97 (1) primary jurisdiction over “collisions or any other incident of navigation” in favour of the flag State or the State of nationality of the relevant alleged person. Therefore, this rule may function as a bar for Indian criminal proceedings.

    It is often to be found in literature, as it is presumed here, that the wording “other incident of navigation” is restricted somehow to the meaning “other navigational acts”. However, in view of Art. 87 (1) UNCLOS, the expression “other incident of navigation” deserves a broader sphere of application. That is to include acts committed on board a vessel which are subject to penal or disciplinary responsibility of the flag State or the State of nationality, and in relation to the exercise of the right of navigation in contrast to the other freedoms of the High Seas according to Art. 87 (1) UNCLOS. Otherwise the right of the flag State or of the State of nationality to exercise jurisdiction over its own subjects may be endangered by concurring jurisdictional claims of other States.

    Third, India’s international legal basis to exercise jurisdiction is not in question. However, I am inclined to conclude that India may not crowd Italy out of its primary position as the flag State to guarantee the adherence to international law on the High Seas. If I might be right, then the scenario reminds me of the controversial male captus bene dententus situation since the earliest arrest did not happen in conformity with international law. The Indian court may consider this issue as well.

  6. Hari Sankar Harisankar K S

    Thanks Priyanka, Giacomo and Daum for your comments!
    To Giacomo,
    True. From my limited knowledge on criminal law, I do believe that, Indian legal system also considers the protection of personal liberty of the accused and a proof beyond all reasonable doubt in ensuring a fair trial. However, my point was if the trial is conducted in India there is an added advantage of securing the victim participation.
    To Daum,
    Sorry to disagree with you on this broader application of Article 97 (1), to include a ‘killing’ incident under the category of ‘an incident of navigation’. Even if such an interpretation is to be considered, the flag state rule (floating territory principle) may favour the application of Indian law, as the offence was consummated on board an Indian vessel.
    Warm Regards,
    Hari

  7. Oliver Daum Oliver Daum

    Thanks Hari for you response!

    You are correct in stating that since the effects of the acts committed on the Italian vessel are experienced on the Indian vessel, India may claim jurisdiction over the alleged persons. I agree!

    So, your explanation about the international legal basis of India’s jurisdictional claim though is just one legal issue of the case at hand. Another issue is the question under which circumstances a jurisdictional claim by one State supersedes another State’s claim. I struggle to find a reason why India’s claim prevails over Italy’s claim here. The reference to the victim participation under Indian penal law is important, however it may not suffice for the purpose to allocate jurisdiction on the international level.

    Best regards,

    Oliver

  8. Dubito

    Why discuss the legitimacy of a hot pursuit which has never taken place and no one noticed it?

  9. Jacques Hartmann

    Thanks Hari for an interesting blog,

    I do not understand why the Indian Supreme Court rejected the Italian plea of immunity without any deliberation. All State officials enjoy immunity ratione materiae for their official acts. The rational was explained by the Appeals Chamber in Prosecutor v. Blaškić:

    “[State] officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’. This is a well established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since”1]

    The conditions for the application of immunity ratione materiae is that the act in question has an official character. Although it is rare for States to invoke immunity in criminal cases it does happen.[2] In 2008 the Italian Court of Cassation found that customary international law precluded Italian courts from exercise jurisdiction over a shooting by a US soldier of an Italian national in Iraq.[3] There is no customary exception that would preclude Italy from raising its claim of immunity in Indian courts. Douglas noted in his blog that “comparable cases are usually resolved in favour of State immunity, but often not swiftly.” I guess we have to wait and see.

    [1] ICTY, Prosecutor v. Blaškić (Objection to the Issue of Subpoena duces Tecum) IT-95-14-AR108 (1997), 110 ILR (1997) 607, at 707, para. 38.
    [2] On this issue, see D Akande and S Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, EJIL (2011).
    [3] Lozano v Italy, Appeal Judgment, Case No 31171/2008 (24 July 2008) ILDC 1085 (IT 2008).

  10. Hari Sankar Harisankar K S

    Dear Jacques, Thank you for your comment and analysis on Sovereign immunity.
    Here, I would like to point out couple of arguments made on behalf of the Union of India.
    First, it seems that the Supreme Court has accepted the policy of the Indian Govt, of not entering into any Status of Force Agreements (SOFA). Hence, as per this policy and in the absence of SOFA’s, no functional immunity can be extended to foreign military personnel.
    Second, as the Italian marines’ were engaged in acta jure gestionis, but not acta jure imperii, they are not entitled to sovereign functional immunity, according to the restrictive theory of sovereign immunity. Now, it is for the Italian lawyers to establish the ‘governmental character’ of marines’ action by submitting the relevant agreement between the Navy and the Private oil tanker Enrica Lexie, if any.
    Yes. We’ll have to wait and see!
    Regards
    Hari

  11. riccardo pavoni

    Dear Jacques,
    thank you for quoting this case of the Italian Sup Ct:
    ‘In 2008 the Italian Court of Cassation found that customary international law precluded Italian courts from exercise jurisdiction over a shooting by a US soldier of an Italian national in Iraq’.[3]

    However, it is most interesting to consider that the same Italian Sup Ct has lately changed its mind in the famous extraordinary rendition case of Abu Omar (not affording immunity to several CIA agents, including former consuler officers). Since you quote from ILDC, please look up for this forthcoming case:

    Criminal Proceedings v Adler and ors (‘Abu Omar’ case), Final Appeal Judgment, No 46340/2012; ILDC 1960 (IT 2012); 29 November 2012, Court of Cassation, Fifth Criminal Section

    I quote from the Held field of the forthcoming report by Andrea Caligiuri:
    ‘So far Italian courts have recognized immunity only to diplomatic or consular agents, Heads of State, Heads of Government and Ministries of Foreign Affairs. As a result, contrary to what had been stated by the Court of Cassation in its judgment in the Lozano case, Italian courts are entitled to exercise their criminal jurisdiction over foreign State officials in the absence of specific international rules providing for immunity, such as those relating to diplomatic or consular officials, or in the absence of rules on the allocation of jurisdiction between sending and receiving States in cases of military officials deployed abroad’

    and

    ‘The existence of a customary rule granting functional immunity has not been proved because of a lack of well-established case-law, concordant statements of the States and univocal views of scholars. The uncertainty that affects this sensitive aspect of international relations explains why States conclude specific treaties, such as the 1951 London Convention, regulating the exercise of jurisdiction over State officials’

    Isn’t this amazing??? Exactly one the Indian arguments as pointed out by Hari! (‘First, it seems that the Supreme Court has accepted the policy of the Indian Govt, of not entering into any Status of Force Agreements (SOFA). Hence, as per this policy and in the absence of SOFA’s, no functional immunity can be extended to foreign military personnel’)

    Sometimes I think these things only happen in my country! The whole Enrica Lexie story is just another sign of Italy’s decadence…

    best regards

  12. Guptan Veemboor

    An EXCELLENT analysis of the whole issue.