Comments on: Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility

By: The War on Piracy and its Unintended Victims at The International Criminal Law Bureau Blog

Mon, 16 Jul 2012 06:25:29 +0000

[...] in Italian courts. Jurisdiction arguments are misplaced and amount to a distraction. At best, both India and Italy have jurisdiction over the matter. India may exercise jurisdiction by virtue of the principle of aut dedere aut judicaire, which is [...]

By: Francesco Messineo

Francesco Messineo — Sun, 11 Mar 2012 22:36:43 +0000

Just to add that the Italian Foreign Minister – prone, as these days sadly command, to share his thoughts with the entire world on Twitter – has apparently expressed the view that ‘the ship should never have gone into Indian territorial waters’ (http://www.corriere.it/esteri/12_marzo_11/terzi-twitter-maro_0bc076c8-6ba1-11e1-a02c-63a438fc3a4e.shtml).

Indeed, that is because the Foreign Minister (formerly a high ranking ambassador) must know that because of the ship’s entering territorial waters after the events, Indian authorities gained full enforcement jurisdiction over the two soldiers (as well as the legislative one they already would have had over the events because of the passive personality rule).

Of course dubito is right that Indian domestic law will determine the extent to which the permission India has to exercise its jurisdiction in this context will come tu fruition. But Italy remains in a very complex position – which will not be helped by ambiguously worded (and potentially ‘conceding’) Twitter posts.

By: dubito

dubito — Sat, 10 Mar 2012 16:46:33 +0000

Dear Francesco,
I may agree with you on the fact that India could claim jurisdiction under general international law … if it had under Indian domestic law, which is very far from being obvious at the current stage. Perhaps Lotus may e relevant, as the Cutting case as both are, for criminal lawyer leading cases on the locus commissi delicti. The issue is of international relevance but casting arguments are on Indian domestic law.
As to Douglas post on the commercial aspects of the protection provided by military VPDs, this would not be the first military operation funded by private industry. On the SUA … again, it seems to be a matter of implementation of SUA under the Indian 2002 Act which establish very narrow jurisdiction if compared with SUA. Will see …

By: Douglas Guilfoyle

Douglas Guilfoyle — Fri, 09 Mar 2012 15:17:29 +0000

Perhaps to deal with (spurious) Italian claims about jurisdiction, India has apparently invoked the SUA Convention in its prosecution:

http://www.asianage.com/india/italian-ship-violated-maritime-law-075.

As I recall this was successfully invoked in US v Shi in an “ordinary” criminal case, despite arguments being made the Convention should be understood as restricted to “terrorist”, i.e. politically motivated, violence. (No such restriction appears in any operative provision of the Convention, though there are general references to terrorism in the preamble.)

Italy could perhaps argue for the broad construction of Art 2 (SUA does not apply to warships or vessels being used for certain public purposes).

This could be complicated by the fact – as I understand it – the vessel owners had to pay for the State provided VPD on a fee-for-service basis. In any event, placing government officials on a commercial vessel as it goes about commercial business seems unlikely to transform it into a “public” vessel.

By: The Enrica Lexie Incident – Private Security Counterpoint « Communis Hostis Omnium

Thu, 08 Mar 2012 21:44:42 +0000

[...] to India (as the flag ship of the victims) and Italy (as the flag ship of the defendants). He notes, however, As Indian courts have jurisdiction, the next question is immunity. The easy thing to [...]

By: jpaust

jpaust — Wed, 07 Mar 2012 18:11:33 +0000

And, by the way, our Supreme Court in Ford v. United States, 273 U.S. 593 (1927) quoted Judge John Basset Moore of the P.C.I.J. concerning the continuing act fiction (“wilfully puts in motion a forece to take effect”).

By: jpaust

jpaust — Tue, 06 Mar 2012 20:42:46 +0000

We would recognize Indian jurisdiction under the objective territorial principle of customary international law concerning jurisdiction using these aspects of context: (1) there was an intent to produce effects on board the Indian vessel (which, under international law, is the equivalent of Indian territory), (2) there were effects on board the Indian vessel, and (3) by fiction, there was a continuing act that took place also on the Indian vessel (as the bullets fired continued onto the equivalent of Indian territory). We would say that all that is required is 2 out of 3 elements (act within (or by fiction under the agency rationale or, as in this case, the continuing act rationale), intent (or foreseability as a substitute for intent), effect). In United States v. Davis, 25 F. Cas. 786, 787 (C.C.D. Mass. 1837) (No. 14,932), it was recognized that where a shot was fired from one ship to have it injurious effect on another that that other ship’s flag (country) had jurisdiction as well as the flag from which the shot was fired. In Simpson v. Georgia, 92 Ga. 41, 17 S.E. 984 (1893), it was recognized that the sovereign state of Georgia had jursdiction to prescribe over an accused who had been standing in South Carolina and had fired a shot across the state line and injured a person in Georgia.
see 23 Virginia Journal of International Law 191, 201-13 (1983), reproduced in part in our Paust, Bassiouni, et al., International Criminal Law 178-82 (3 ed. 2007). We also have an extract from Regina v. Anerson, 11 Coc Crime. Cas. 198 (U.K. Court of Criminal Appeals) (1868).

By: Francesco Messineo

Francesco Messineo — Tue, 06 Mar 2012 15:09:50 +0000

Dubito,

my post was on a separate matter, hence the only very brief reference to the Lotus case, on the meaning of which (and its current perhaps more broad interpretation by the ICJ to which you correctly allude) many things could indeed be said.

Douglas has kindly explained what I meant, so I will not reiterate it here at length, except to mention that, as I see it, the Lotus case indeed constitutes authority against the proposition that Italy had exclusive jurisdiction in this case (as the Italian Minister suggested, in my view wholly implausibly). See the Lotus case at pages 18-19, where the question of the territorial jurisdiction of Turkey is discussed at length. The point I was making was merely that India has jurisdiction to enforce its laws in its own territory – hardly a contentious point in international law, and one which indeed has its historical basis in Lotus…

So, if two Italian marines find themselves in Indian territory (where they perhaps inadvisedly ended up after the shooting in the high seas), there is no doubt, on the basis of Lotus, that India can arrest them and try them for *whatever reason* under Indian law. A separate question is whether India and Italy also have concurrent jurisdiction to *prescribe* over the killing by Italian soldiers of Indian citizens; general international law (rather than Lotus) gives us a positve answer in that regard too. Third, there is the question of immunity, well discussed by Douglas above, which is the only one which may give Italian authorities some ammunition.

Interested readers may wish to consult O’Keefe, Roger, ‘Universal Jurisdiction: Clarifying the Basic Concept’, 2 J. Int’l Crim. Just. (2004) 735-760; Akehurst, Michael, ‘Jurisdiction in International Law’, 46 Brit. Y.B. Int’l L. (1972-73) 145-258; and Mann, Frederick Alexander, ‘The Doctrine of Jurisdiction in International Law’, 111 Rec. des Cours (1964) 1-162 (as well as the 1984 update thereof) for much more authoritative discussions as to what ‘jurisdiction’ means than can be provided here…

By: Douglas Guilfoyle

Douglas Guilfoyle — Tue, 06 Mar 2012 07:31:30 +0000

Dubito, that was precisely my point. Lotus does govern the case as it does,if one reads the case in full, stand for the principle that both States in such a situation can claim jurisdiction. I am in agreement with you that more people should read Lotus rather than simply refer to it as the general understanding of the case on many issues is wrong.

By: dubito

dubito — Tue, 06 Mar 2012 05:06:04 +0000

I have just a brief comment on the fact that Messineo mentions Lotus as applicable to the issue. The decision in the Lotus case should be read rather than quoted when not material. Lotus doesn’t govern the situation as Lotus doesn’t provide any applicable principle. Lotus simply says (apart from how Lotus is read in other decisions of the ICJ) that if a State established ist jurisdiction in order to punish an offence whose event toke place on a ship flying its flag … it is not in breach of international law … unless the contrary is proved. So the Lotus rationale brings the issue back … to Indian Law. Please don’t abuse the Lotus rationale!