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

Published on March 2, 2012        Author: 

Francesco Messineo referred below to the incident in which Italian marines, embarked aboard an oil tanker to protect it, appear to have killed two Indian fishermen mistaking them for pirates.

There has been a lively debate about how best to manage armed security for vessels transiting the high-risk piracy area off Somalia. The two options usually advocated are: embarking military forces to act as a Vessel Protection Detachment (VPD); and private armed security guards (PASGs). The usual issues for discussion are questions of jurisdiction, immunity and state responsibility.

What follows is a preliminary sketch of the issues as I see them.

Vessel Protection Detachments

In any such fatal shooting episode the first question is which State has jurisdiction: Italy or India? The answer is, of course, both States do.

As Francesco pointed out, if this episode occurred on the high seas (as it appears to have done), it is governed by the Lotus Case. In Lotus the PCIJ found, unremarkably and by analogy with crimes that cross land borders, that an offence commenced on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B. A treaty law exception was later created for the masters of vessels in respect of crimes resulting from collision and incidents of navigation. In such cases a master can only be prosecuted by his state of nationality or license-issuing authority (UNCLOS, Art. 97). Otherwise the general principle stands. In this sense the principle of the “exclusive jurisdiction” on the flag State can mislead those unfamiliar with the law of the sea. It is not an absolute prohibition on concurrent jurisdiction.

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

I have surveyed the relevant State practice elsewhere. I will confine myself to observing that that comparable cases are usually resolved in favour of State immunity, but often not swiftly. The issue is complicated by the fact that the modern law is dominated by Status of Forces Agreements – treaties concluded in advance which (broadly) settle the questions of immunity for forces stationed abroad from local criminal jurisdiction. This is a situation where no such treaty applies so the applicable law is customary international law, and the relevant cases tend to be old. Nonetheless, my reading of them suggests State immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions (in the narrow sense of carrying out an authorised act in an unauthorised manner). Immunity is unlikely to be upheld where a State agent has abused their authority out of malice or for personal gain (though in such cases State responsibility will still apply e.g. Mallen). Otherwise, especially in cases of genuine mistake, immunity should generally be upheld.

Obviously, the State remains responsible for the official acts of its agents irrespective of the determination regarding immunity. The question therefore arises as to whether Italy is obliged to compensate the victims or their families. Read the rest of this entry…