Italian marines: International tribunal upholds handling of incident but rules no jurisdiction for India

NEW DELHI: An Arbitral Tribunal set up under UN Convention on the Law of the Sea (UNCLOS) in the Italian marines case unanimously upheld the conduct of Indian authorities "with respect to the incident" in which 2 Indian fishermen were allegedly killed by the marines off the Kerala coast in 2012. However, the 5-member tribunal also ruled, by 3 votes to 2, that Indian courts had no jurisdiction over the marines.
The tribunal held unanimously though that the actions of the Italian military officers (in interfering with the movement of the vessel) and, consequently, Italy breached India’s freedom of navigation under UNCLOS Article 87 and 90, said the government in a statement.
While the tribunal decided that India was also entitled to compensation for the loss of lives, its ruling was a mixed bag as it simultaneously held that the marines, Massimiliano Latorre and Salvatore Girone, enjoyed immunity which precluded Indian courts from exercising jurisdiction over them.
Italy was quick to claim vindication in a statement saying that the tribunal at The Hague was called upon to establish allocation of criminal jurisdiction and not the merits of the incident.
"Tribunal has therefore agreed on the Italian position that the marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts," said the Italian government, adding that India will now have to stop exercising jurisdiction over the marines.
India had detained the 2 marines aboard the Italian tanker, Enrica Lexie, for killing the fishermen on board an Indian vessel, St Antony, on February 15, 2012. The arrest and subsequent exercise of jurisdiction by Indian authorities had plagued relations with Italy for years. Italy had alleged that India had violated UNCLOS provisions by ordering the detention of the Italian tanker but this was rejected unanimously by the tribunal.
The tribunal was constituted after a request from Italy in June 2015 with both countries committing themselves to exercising criminal jurisdiction, as Italy said, according to the allocation by the tribunal.
The marines were later allowed by Supreme Court to return to Italy, pending the finalization of jurisdiction in the case.
The tribunal rejected Italy’s claim to compensation for the detention of the marines. MEA spokesperson Anurag Srivastava said the tribunal observed that India and Italy had concurrent jurisdiction over the incident and a "valid legal basis to institute criminal proceedings against the marines".
However, the official acknowledged, the tribunal found that the immunity enjoyed by the marines as state officials acted as an exception to the jurisdiction of the Indian courts and, hence, "precluded them to judge the marines".
"The tribunal decided that India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of St Antony," said the Indian official.
The tribunal held that the parties were invited to consult with each other with a view to reaching agreement on the amount of compensation due to India. It also decided that it shall retain jurisdiction should either party or both parties wished to apply for a ruling from the Arbitral Tribunal in respect of the quantification of compensation due to India.
"India has taken note of the Award and will be in touch with relevant entities on the matter," said Srivastava.
The tribunal also took note of the commitment expressed by Italy to resume its criminal investigation into the events of February 15, 2012.
While acknowledging the ruling on compensation, Italy said it was ready to fulfill the decision taken by the tribunal, in a "spirit of cooperation". Italy also emphasised that the tribunal ruling does not make any determination of criminal responsibility in connection with the incident, which, it added, will now be for the Italian judicial authorities alone to ascertain.