The Diplomatic Crisis between India and Italy: Grey Areas in International Law

As the second anniversary of the tragic event that took place on February 15th 2012 is approaching; the diplomatic crisis between Italy and India still has yet to be resolved.

Image courtesy of Sugeesh, © 2012, some rights reserved.

Image courtesy of Sugeesh, © 2012, some rights reserved.

The case of the two marines, Mr Girone and Mr Latorre, who were on board the Italian oil tanker Enrica Lexie off the shore of the state of Kerala, India, when they allegedly shot and killed two Indian fishermen after mistaking them for pirates is extremely complicated, and it illustrates the little-stressed importance of details in international law. Yet the existence of grey areas, where politics become crucially entangled in the interpretation of the law, are at the crux of this issue. Ever since the incident there has been a diplomatic crisis between Rome and New Delhi due to the dispute over which state has jurisdiction over the case and what court should try the two marines.

Several elements have contributed to the immense legal complexity of this case and leave both parties their own claims.

First, foreign military forces stationed in a host country are generally granted immunity from territorial jurisdiction by international customary law and status of forces agreements (SOFA). For example, in 1998 a United States Marine aircraft accidently cut a cable supporting a cable car in the north east of Italy and caused the death of twenty people. The pilot and the navigator were put to trial in the United States, not in Italy, because they were protected by just such an agreement. The principle supporting this norm is that members of the military are representatives of the state and of the state’s sovereignty, which cannot be violated. In what is now called the “Enrica Lexie case” the matter is more complex: the marines were on board a private tanker with the task of protecting it from the attacks of pirates; they were not acting as state representatives, they were not on a military ship, and they were not part of an official mission against piracy. Consequently, they are not granted immunity from territorial jurisdiction.

It is worth noting that in Western countries it is forbidden to let private individuals carry arms while on board a ship. However, in 2012 the Italian Ministry of Defence and Confintarma (the Italian confederation of ship owners) signed an agreement allowing ship owners to request to take on board Military Protection Detachments.

Such agreements can cause friction because they mix states’ armies with private activities, they create situations that are not clearly regulated by international law, and they dangerously leave room for interpretation. It is not surprising that once this became evident in the Enrica Lexie case, the aforementioned agreement has been modified.

Moreover, the alleged killing took place within Indian contiguous zone and within the Exclusive Economic Zone (EEZ) but outside of Indian territorial waters.

According to the 1982 UN Convention on the Law of the Sea, to which India and Italy are signatories and a contracting Parties, a state’s jurisdiction extends to its territorial waters (12 nautical miles from the shore). While a state still has jurisdiction on certain domains within its contiguous zone (24 nautical miles from the shore) and its EEZ (200 nautical miles from the shore), for what concerns penal jurisdiction in the event collision and any incident related to the navigation in the high seas the flag of the ship involved determines the state that has jurisdiction over the case.

Yet it is unclear whether the killing of two Indian nationals could be considered an “incident related to navigation”. After many contestations the Indian Supreme Court ruled that India has jurisdiction over the case and the passed the buck to the National Investigation Agency (NIA). Crucially, when formulating the charges the NIA could invoke the Sua Act, which extends India’s jurisdiction over illicit acts taking place within the 200 nautical miles from the shore.

One of the most decisive elements is that there is no precedent for the case. It is difficult to establish the jurisdiction over a case consisting of two innocent men killed within the 24 nautical miles from the shore by two foreign servicemen on-board a private commercial ship. Indeed, treaties and norms of customary international law are often so vague that the resolution of international disputes is left to interpretation, which, in turn, is mostly guided by politics.

The case has gained great attention in Italy, where the two marines have been portrayed as the heroic protagonists of an epic. While the diplomatic efforts are conducted by the foreign ministries (as it should be), many parliamentarians, especially of the right wing, have ostensibly mobilised against what is seen as an injustice perpetuated by the Indian Supreme Court. Pictures showing politicians paternally patting Mr. Girone and Mr. Latorre’s shoulders are present in newspapers and a delegation of parliamentarians has accompanied the two marines in India to provide them support. It is noteworthy that such fervour proves propitious to the political campaign in view of the approaching elections.

For India, the upcoming elections are centred on other issues and the attention paid to the case seems to have diminished with time. However, were the NIA to invoke the SUA act, India could establish a precedent that allows her to extend territorial jurisdiction and to gain greater control other critical sources of concern such as disputes with Sri Lanka on fishing areas near the border and the waters of Pakistan and Bangladesh, which could be used by terrorists.

Thus, it is clear that even a minor grey area in international law can have enormous ramifications for the relations of two countries. How they will resolve these issues remains unknown, but it is clear that the ongoing tension between the imposition of consistent and stable international law and the imperatives of state sovereignty will remain in fundamental conflict beyond this case.