Who Can Adjudicate Enrica Lexie Incident
On February 15th 2012 while the Italian Flagged MV Enrica Lexie was sailing with on board an Italian Military Protection Detachment in transit along the Indian coast, close to the outer border of the Indian Contiguous Zone and within the Exclusive Economic Zone (EEZ) of India, the vessel reported a piracy attack.
The event was reported through the “Mercury chat”, linking together several Military Navies all over the world, to include the Indian Navy and was also sent to the Maritime Security Centre Horn of Africa (MSCHOA), seated in Northwood – United Kingdom, close to the Operation Headquarter (OHQ) of the European Union Counter Piracy Mission EUNAVFOR Atalanta. After the event the Vessel continued sailing on its scheduled route. When the Vessel had covered almost 38 Nautical Miles, the Vessel was apparently requested to enter Port Kochi to assist and identify suspected pirates which allegedly had been apprehended.
The vessel turned course and headed towards Kochi port where it arrived at about midnight of the same day.
Press releases and interviews of personnel of the Indian Coast Guard in key position suggests
that the MV Enrica Lexie along with the Military Protection Detachment on board, was cheated (lured) in order to enter the Indian port of Kochi with the perspective of cooperating in the identification of pirates allegedly apprehended by the Indian coast guard, and much emphasis was put on the fact that this was a really smart move by the Indian Coast Guard.
The Master of the Vessel was subsequently informed that a FIR (First Information Report) on
the file of the Circle Inspector, Neendakara, Kollam has been registered under section 302 (Murder) read with section 34 (Common Intent) of the Indian Penal Code (IPC). In the said FIR, filed under section 154 of the Indian Criminal Procedure Code (ICrPC), it is alleged that outside the territorial waters of India there was a firing from a ship. It is alleged that a fishing boat by the name of “St. Antony” was fired at by an Italian Cargo ship and that in the firing two fishermen were killed. The FIR reported that the fishing boat was fired at 22.5 nautical miles from the shore.
Even under the subsequent version, the alleged incident took place beyond the territorial waters of India. It is worth mentioning, for the purpose of subsequent consideration of jurisdictional issues, that the FIR refer exclusively to the offence under section 302 of the IPC and not to any “scheduled offence” under other Acts.
Two components of the Military Protection Detachment on duty that afternoon of the 15th were arrested and were subsequently produced before the Chief Judicial Magistrate Kollam and have been subsequently placed in custody until bail was granted in June 2012. The 18th of May 2012, the Kerala police has filed the charge sheet with reference to the following charges in furtherance of common intention (section 34): murder (section 302), attempt to murder (section 307), mischief (section 427) and also the offence under section 3 of the Suppression Of Unlawful Acts Against Safety Of Maritime Navigation and Fixed Platforms On Continental Shelf Act, 2002, subject to the sanction by the Central Government which was not granted. During the phase aimed at the farming of the charges the Session Court’s refusal to the translation of the witness statements from the Malayalam court language into Italian, moved the accused to ask the High Court to exercise its power to review under section 397 of the ICrPC deducing among other issues, a violation of internationally accepted fair trial standards under article 14 of the International Covenant on Civil and Political Rights (ICCPR), which is to be interpreted in the light of the “Kamasinski decision” of the European Human Rights Court.
The accused and the Government of the Republic of Italy have challenged the jurisdiction of Indian Court from the beginning and have initially filed a writ petition under Article 226 of the Constitution and section 482 of the ICrPC with the High Court for the quashing of the FIR and all subsequent acts. A further petition has been filed under Article 32 of the Constitution before the Supreme Court challenging the Constitutionality of the ongoing detention, while the decision of the High Court was still pending once the High Court dismissed the petition brought under article 226 of the Constitution and asserted the jurisdiction of the Courts of India and the Government of the Republic of Italy and the accused submitted a “special leave petition” to the Supreme Court under article 136 of the Constitution of India. Leave was granted and the case was clubbed with the case filed under article 32 of the Constitution. When this paper was written the proceedings the Supreme Court had still to take a definitive stand on the issue.
Ancillary litigations on the incident were represented by Admiralty suits for the arrest of the ship and damages and petitions both under the writ jurisdiction of the High Court and the supervisory powers of the magistrate, by the relatives of the deceased fishermen for the arrest of the master. The “undeclared” arrest of the ship has moved the Bench Division of the High Court on appeal against the release decision, to impose to the ship owner to prior exploit remedies under the ICrPC (section 457).
Also this decision has been challenged in front of the Supreme Court which finally ordered the release of the vessel as it was not material to the offence. The release was ordered with the condition of an undertaking by the Government of Italy as to the appearance of the other components of the military protection detachment if summoned in the criminal proceeding, provided that they can challenge the summon in an Indian Court.
The deaths of two Indian fisherman (Jelestine, 45, and Pinku, 25), purportedly caused by marines stationed on board the Italian merchant ship the Enrica Lexie has created a furore in Kerala.
The Italian ship, and the two accused marines have been arrested, with the marines under investigation for murder. The families of the fishermen have filed petitions before the court in Kerala seeking compensation from the ships operator. Italy meanwhile has filed petitions seeking quashing of the cases registered against the marines inter alia as it questions the jurisdiction of India to adjudicate the matter.
At the very outset two questions are important if one is to have any view on this incident. First, did the Italian marines in question act with authority, if so, whose? Second, even if they did, in whose territory does the enforcement of the allegation that they used excessive force lie: Is it the Indian Penal Code (IPC), or is it an international regime that India ratified and accepts?
The position on authority and status of the individuals, i.e. the two Italian marines, flows from an Act of Parliament of Italy, Law Decree no.107 dated July 12, 2007 converted into Law No.130 on August 2, 2011. This was enacted pursuant to the commitment of Italy to fight piracy under the United Nations Convention on the Law of the Sea (“UNCLOS”), pursuant to the U.N. Security Council Resolution 1816. Under this Act, there is the sanctioned presence of military navy detachment on board commercial vessels flying the Italian Flag. The accused were therefore not ex-servicemen, or hired guns, but serving marines deployed on the Italian ship MT Enrica Lexie.
The second critical issue is whether or not the Kerala police and courts are right in asserting the jurisdiction of the Union of India. To recapitulate, the Italian side had argued that only Italy has the right to try the two marines as the incident occurred outside India's territorial waters; under the terms of UNCLOS to which both India and Italy are signatories, it argued that Italy had sole jurisdiction being the flag state. They had further argued that the Italian naval commandos were acting under authority of the Italian state and could therefore avail of sovereign immunity. But before we get into settled and accepted principles of international law, another side note must be discussed. There exists a defence cooperation agreement between India and Italy, operational since February 3, 2003. Both the nations have entered into this agreement with a desire to enhance cooperation as they were convinced that such engagement will contribute to better understanding of each other’s security concerns and consolidate their respective defence capabilities. Considering this stated intention to understand, appreciate and cooperate with each other, should the Italian marines not be recognised as military officers at the very least and thereafter given equal treatment to what would have been expected to be served to their Indian counterparts in a similar situation?
It must also be kept in mind that it is possible for more than one country or court to have jurisdiction over a matter. Italy will need to demonstrate before the Indian courts either that there is a rule of International Law that forbids Indian courts from adjudicating the matter or that Indian domestic legislation contravenes International law.
The Enrica Lexie imbroglio, the controversy is not about the facts of the case, but about the question of who has the right to try the two Italian marines. The Italian side has invoked UNCLOS to assert its jurisdiction. Article 97 of UNCLOS, which refers to a “collision or incident arising out of navigation” on the “high seas”. The shooting of Indian fishermen was not a collision; nor was it an incident arising out of navigation.
Italy, it appears, is seeking to consider Article 92 of United Nations Convention on the Laws of the Sea, 1982, (UNCLOS) that states that ships will sail under the flag of only one state which apart from exceptional circumstances, expressly provided for in international treaties or within the Convention, a ship shall be subject to exclusive jurisdiction on the high seas based on this principle, it appears that India can have to discharge the burden of showing a positive norm of law that permits it to claim exceptional circumstances and so divergence from Article 92 UNCLOS.
The FIR and Remand Report filed by the circle inspector of police, including the report of the Coast Guard, it has been recorded that the incident took place outside the territory of India. After various iterations the Coast Guard finally confirmed that the alleged incident took place at 20.5 nautical miles from the coast line, a location outside the territory of India. The territorial jurisdiction extends to territorial water up to 12 nautical miles from the nearest point of the baseline; beyond territorial waters is the Contiguous Zone extending up to 24 nautical miles; and beyond that up to 200 nautical miles is the Exclusive Economic Zone of India. This is attested to by a reading of Article 3 of UNCLOS to which both India and Italy are signatories as well as the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (“Territorial Waters Act”).
The Supreme Court in its verdict of January 18, 2013, upheld India's contention that as the Union Government had extended India's sovereignty up to the Exclusive Economic Zone (EEZ) and therefore India had jurisdiction under its laws to try the marines. It also found that Article 97 of UNCLOS was inapplicable to the facts of the case as the incident of firing by the marines could not be deemed to be an ‘incident of navigation’ or ‘collision’ as defined in the Act. The Court noted that the terms used in Article 97 could not include a criminal act and that while Article 100 of UNCLOS (which inter alia deals with issues of cooperation amongst member states in matters of piracy) could apply to the incident, the same would have to be considered only after evidence had been presented in the course of the trial.
The Supreme Court however also held that the Union government and not the State of Kerala had jurisdiction to adjudicate the dispute.
A large proportion of reports have stressed that the crucial point in deciding the question of jurisdiction is to determine where the incident occurred. Territory is merely one method whereby jurisdiction can be conferred on a court and there is no principle of International law that mandates the use of only this principle to establish jurisdiction.
Section 1 of the Indian Penal Code, 1860, provides that the Code extends to the whole of India except the State of Jammu and Kashmir. Per Section 18, “India” is defined as the territory of India, except Jammu and Kashmir. The Code is therefore normally applicable to the extent of India’s territorial waters but not to India’s EEZ or contiguous zones.
However, Section 4 states that the provisions of this Code also apply to offences committed by any Indian in any place outside India and to any offences committed by any person on any ship or aircraft registered in India, wherever it may be. Further, under Section 188 of the Code of Criminal Procedure, 1973, when an offence has been committed outside India: (a) by a citizen of India or (b) by a person, not being a citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.
Thus, under domestic legislation, a foreign citizen can be prosecuted in India for the commission of an offence on board an Indian ship or airplane, even if the ship or airplane is outside Indian Territory at the time of commission of the offence. However, if a foreigner initiates an offence which is completed within Indian territory, he is, if found within Indian territory, liable to be tried by the Indian Court within whose jurisdiction the offence was completed.
This provision of domestic law is very much in line with the principles enunciated in Article 91 of UNCLOS.
A case similar to the Enrica Lexie one was previously adjudicated by the Permanent Court of International Justice in 1927. In this case, a French steamer, the Lotus, collided with a Turkish vessel, the Boz-Kourt, on the high seas, killing eight of her crew and passengers. Upon the French vessel’s arrival in Istanbul, the French crew was tried by the Turkish authorities. France adopted arguments similar to those used by Italy in the present matter.
Holding against the French, the court, inter alia, observed that:
“What occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies. If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent”.
The Chief Justice while quoting the Lotus case went on to hold that since some sovereign rights could legitimately be exercised by a country in the EEZ and Contiguous Zone (under UNCLOS), India could exercise jurisdiction over the incident.
As far as the question of whether a positive or permissive rule of International Law exists that permits India to prosecute the marines is concerned, one only needs to look at the provisions of the Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation Convention, 1988 (SUA). This Convention, to which both Italy and India are signatories, in Articles 3 and 6 thereof reaffirms the position that jurisdiction may be conferred by the effect of an illegal act.
It should be noted that the case of the SS Lotus can be differentiated from the Enrica Lexie incident in so far as the offence in the case of the Lotus was a collision and not murder / manslaughter. While the PCIJ did hold that there were no specific rules applicable in the case of a collision vis-à-vis any other offence, the position has been changed, only in this limited regard with the adoption of UNCLOS. In Article 97, UNCLOS provides that a flag state will have exclusive jurisdiction over an incident where a crew member of a ship is involved in a “collision or any other navigational incident on the high seas”. The SS Lotus case is however good it law in so far as the general principles lays down (only not with regard to collisions). In the case of the Enrica Lexie, it is clear the incident was not a collision or other navigational incident, but a shooting – thereby removing the incident from the purview of Article 97 of UNCLOS.
The problem of the globalised world is that it also globalises the problems. It is no longer possible to ignore failed states. If we shut our eyes to problems of different regions, they will come back and bite us where we sit. This is the simple lesson from Enrica Lexie.
To conclude, in the case of the Enrica Lexie, as the incident could be said to have taken place in India, for the purposes of the IPC in as much as the effect of the shooting was felt on Indian territory and further as the SUA permits India to exercise jurisdiction, I believe that both India and Italy can exercise jurisdiction over the matter. As the marines are now in Indian custody, it is well within the rights of the Indian courts to adjudicate the dispute.
Authored by: Hina Iliyas and Urvashi Srivastava
# T. RAMAVARMAN, Coast Guard, Fisherman: smart move, TNN – Chennai Edition, February 18, 2012.
# Case of Kamasinski v. Austria, (Application no. 9783/82), decided on 19th December 1989.
# Under article 226 of the Constitution of India, on which we would like to refer to DURGA DAS BASU, Shorter Constitution of India, reviewed by A. LAKSHMANAN, V. R. MANOHAR, B. PROSAD BANERJEE, 14 ed., 2011, II, 1185 ff., the High Court may, in order to protect fundamental rights under Part III of the Constitution, among which there is the right to liberty and security issue certain writs.
# Indian Criminal Procedure Code
# As Per Article 33 of UNCLOS, a coastal state may declare an area adjacent to its territorial sea, up to a distance of 24 nautical miles as a contiguous zone. The coastal state can, within this zone, exercise control to prevent and punish infringement of customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea.
# As Per Article 76 of UNCLOS, the continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The coastal State exercises exclusive sovereign rights over the continental shelf solely for the purpose of exploring it and exploiting its natural resources.
# As Per Article 57 of UNCLOS, the breadth of the EEZ is limited to 200 nautical miles. In the EEZ, a coastal state has (a) sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, whether living or non-living; and (b) jurisdiction with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment.
# The Section also mandates Central Government sanction in such cases.
# Chhotalal Babur v. Emperor, (1912) 14 Bom LR 147
# any person commits an offence inter alia if that person unlawfully and intentionally:
(a) commits, attempts to commit, threatens to commit, or abets the seizure or exercise of control over a ship by force or threat of force or any form of intimidation;
(b) or commits any of the following acts if it endangers or is likely to endanger the safe navigation of that ship:
(i) an act of violence against a person on board; destroying a ship or damaging a ship or its cargo;
(ii) placing or causing to be placed on a ship a device or substance likely to destroy the ship or cause damage to the ship or its cargo;
(i) destroying or seriously damaging maritime navigational facilities or seriously interfering with their operation;
(ii) communicating information known to be false.
It is also an offense to injure or kill any person in connection with the commission or attempted commission of any of the previous offenses.
# a state can take measures to establish its jurisdiction over the aforementioned offences when the offence is committed:
(a) against or on board a ship flying the flag of the State at the time the offence is committed;
(b) in the territory of that State, including its territorial sea; or
(c) by a national of that State.
A State Party may also establish its jurisdiction over any such offence when:
(a) it is committed by a stateless person whose habitual residence is in that State;
(b) during its commission a national of that State is seized, threatened, injured or killed;
(c) it is committed in an attempt to compel that State to do or abstain from doing any act.