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The tricky case of the Enrica Lexie: Italy vs India
   
 
 
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The tricky case of the Enrica Lexie: Italy vs India

 
Friday, 06 April 2012 06:31
 
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by Nicolamaria Coppola (EPOS)
EPOS Insights

 

It is one of the most controversial cases of the last years. It is no longer just a diplomate dispute between India and Italy but it has become a supernational issue: the European Union is following with apprehension and great attention the episode of the two Italian naval guards jailed in Kerala State of India. As EuAsia News reported on March 7, a Eu spokeswoman told journalists in Brussels that this case is being followed «very closely from the very beginning in particular through close contacts with Italian diplomacy». «Following the request of Italy, we are now undertaking contacts that are aimed at contributing and finding a satisfactory solution for this case as soon as possible», said Maja Kocijancic, a spokeswoman for Eu Foreign Policy Chief Catherine Ashton. «I cannot go into further details of our diplomatic efforts, but I can confirm that we are actively pursuing that», she added.

The two Marines of the Italian Navy Massimiliano Latorre and Salvatore Girone were sentenced on February 20 by an Indian Court to 14 days custody, of which the first 3 days were in police custody; the judical custody was later extended by 7 days twice. The two naval guards are now serving their sentences in a guest house in Kerala, and the Italian Government is trying to do its best to bring them home. Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone of San Marco Regiment are accused of killing fishermen Valentine Jalastine and Ajeesh Binki off the Kollam coast on February 15. The two Indian fishermen were mistaken as pirates and killed by the two Italian Marines who were on deputation on board Italian oil tanker Enrica Lexie.

Piracy is widespread in the South seas, from the Arabian Sea to the Indian Ocean. The high risk area for piracy attacks defines itself by where the piracy attacks have taken place: it is bounded by Suez to the North, 10°S and 78°E. While to date attacks have not been reported to the extreme East of this area, they have taken place at almost 70°E. There remains the possibility that piracy attacks will take place even further East than the High Risk Area. Attacks have occurred to the extreme South of the High Risk Area. A high state of readiness and vigilance should be maintained even to the South of the Southerly limit of the High Risk Area. The significant increase in the presence of Naval forces in the Gulf of Aden, concentrated on the Internationally Recommended Transit Corridor (IRTC), has significantly reduced the incidents of piracy attack in this area. With Naval forces concentrated in this area, Somali piracy has been forced out of the Gulf of Aden into the Arabian Sea. Governments have begun to take measures against piracy attacks under the aegis of the United Nations.

The Decree “July 12 2011, number 17”, approved last summer by the Italian Government, allows the presence of Marines of the Italian Navy, the so called Vessel Protection Detachment (NMP), on board ships: Massimiliano Latorre and Salvatore Girone were on the Enrica Lexie in order to grant the safety of sea traffic threatened by criminal activities that jeopardize personal and economic freedom of movement in high seas. The two Italian naval guards were on board to defend the “Maritime Security” which is, according to Giuseppe Vermiglio, Professor of Transport and Maritime Law at the University of Messina, «a public purpose of the Sovereign State». The armed forces of a State are called to achieve the goal of the public safety, and when they act in the exercise of their police duty, they are considered organs of the State for whom they operate. According to this interpretation, «Chief Master Sergeant Latorre and Sergeant Girone, as organs of the Italian State, and therefore should be judged by an Italian Court for killing the two Indian fishermen, but the situation is more complicated and intricate than it seems because the problem of sovereignty of the waters where the incident occurred is involved».

The Italian foreign minister Giulio Terzi said that there were «considerable differences» between Italy and India over the incident. «There are currently considerable differences of a legal character. Up to now I have not seen the co-operation between India and Italy that would be desirable and would allow a quick resolution», Terzi said. Fundamentally, there are differences between the two Nations over the location of the incident. The Italians say the shooting occurred in “International Waters”, and consequently prosecution and investigation should be given to the UN and not to the Indian laws. India maintains that the crime was committed on an Indian vessel, even if it was in the “Contiguous Zone”, and unarmed Indian fishermen have been shot dead. Hence, the case fell under Indian jurisdiction, and should be prosecuted as per Indian laws. «Contacts and collaboration between the two governments are essential to establish the facts in the face of unilateral actions being undertaken by police authorities», Terzi added.

According to the Indian and the Kerala Police, the killing of the two Indian fishermen happened about 22.5 nautical miles from the western coast of India, off the Kollam coast; according to the Italian Authorities, thought, it occurred about 33 miles. Professor Giuseppe Vermiglio reminds us that the United Nations Convention on the Law of the Sea (UNCLOS) fixes in 12 nautical miles the limit of the “Territorial sea”: the incident, therefore, occurred in International waters. The sighting of the Indian ship suspected of piracy on February 15 at about 4 p.m at a distance of 2.8 nautical miles from the Italian ship, 22.5 miles off the coast of India, as the police of Kerala claims, or 33 miles as the Italian Authorities state, is a circumstance which is subject to two conflicting statements. However, both unequivocally attest that the incident occurred at a distance exceeding 12 miles and, therefore, in International waters. «The jurisdiction apts at judging the events which took place on a ship flying the Italian flag sailing in International waters belongs to Italy», Professor Vermiglio said.

Giuseppe Vermiglio added that there should not be a presumable jurisdictional conflict between Italy and India: the ship sailing in International waters cannot be forced to stop at a port of a country which is not its own. In fact, the Italian ship spontaneously wended towards the Indian port. Since the Enrica Lexie was found in the Indian territorial waters, the competent authorities of this country have considered it legitimate to submit the case to their jurisdiction, because of the nationality (Indian) of the two fishermen killed in the incident. However it is necessary to consider some circumstances which make the situation more difficult: «the circumstance of the place (the sea) where the fact occurred, the consideration that the event was achieved during a fighting piracy operation conducted and directed by Marines of the Italian Navy, the presence of an action of self-defence carried out by the security crew of a vessel under the authority of the squadron leader which is subject to the Italian Military Penal Code and the jurisdiction of the Italian Military Courts».

After the incident, the Indian Coast Guard contacted the Italian oil tanker Enrica Lexie and invited it to enter the port with a statagem, to denounce the pirates who had attacked the ship. Giuseppe Vermiglio stated that it was not a wise decision but it can be seen as a sure indication of the good faith of the commander, and a reasonable suspicion of having been in the presence of a pirate attack. It is a fact that attests the spirit of loyal cooperation which has pushed the Italian ship's commander to accept the invitation of the authorities of Kerala to help them fight piracy, in the hope that the Indian authorities were animated by the same intention and determination.

The case of the Enrica Lexie is tricky: we do not know how this episode will be resolve, but what we know is that it has led to a diplomatic row between India and Italy. EPOS has interviewed Dr. Debidatta Aurobinda Mahapatra, researcher at the Centre for Central Eurasian Studies, University of Mumbai, and EPOS member, to clarify some points about this intricate issue.

The shooting down of the two Indian fishermen on February 15 off the Kollam coast, allegedly killed by two Italian naval guards who were in service on board the Italian oil tanker Enrica Lexie, has led to a diplomatic row between India and Italy: what could be the political implications and the economic and commercial consequences of this incident?

The Indian official position is that this is a case which stands in isolation without impinging on bilateral political and economic relations. The meeting of the two foreign ministers of both countries in New Delhi last month did not pronounce anything which can be construed negatively for bilateral relations. It is understandable that some people in both these countries have perceived this issue from a rigid point of view, but the political class seems to be mature enough in handling the issue bilaterally without affecting the relations. I believe that, even if the issue has not been resolved yet, it will gradually be sorted out though it may take some time because the high pitched expressions used by both the countries need to cool down.

Newly-ordained cardinal, belonging to the Syro-Malabar denomination of the Catholic church, George Alancherry, has asked the Kerala government not to take “precipitate action” in the case of the killing of the two Indian fishermen by Italian soldiers. He also warned the Opposition in the State, CPM-led Left Democratic Front, against scoring political points over the issue. According to the Cardinal it seems that the opposition party wants to take advantage of the situation and exploit the case for electoral reasons. What do you think about it? Do you think that the CPM-led Left Democratic Front is manipulating this event to obtain political revenge?

The issue can not be broadly seen as a religious or ideological issue, though there are some elements that continue to keep in view the bye-election that will take place in the Indian state of Kerala shortly. It may have some impact on the electoral process but I do not see that as a reason behind the nonresolution of the issue. In a political process it is but natural that political parties in opposition search for issues, whether factural or contrived, to target the government. But the issue in its current form has transcended the Kerala politics and has become a national one. The media too has played a critical role in highlighting the issue in all its dimensions. The Kerala High Court, which is currently dealing with the issue, has clearly stated that the case is a legal one and it will be dealt with accordingly. I think, without going deep into the issue, that it can be stated that state politics might have played a role in hyping the issue, but its role is a miniscule one.

How do you think this incident may be resolved and what measures could be taken to avoid the diplomatic breaking?

The issue can be resolved through continued dialogue between diplomatic officials of the two countries. Diplomatic wrangling will make the issue further complex. Also, insistence on resolution of the issue through legal mechanisms will make it further complex because both the countries have different positions on the legality of the case. The ultimate clincher will be both the countries coming together, moderating hard posturing and negotiating. The issuance of condolence by Italian Foreign Minister to the families of the slain fishermen is a right step in this direction. Another step such as meeting the families affected, and providing them some assistance can facilitate in moderating the extreme positions. Both governments should attempt to work out ways to resolve the issue without entering into complex legal processes. Dialogue must be pursued in order to resolve this crisis.

Last modified on Wednesday, 27 June 2012 18:15
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