Italian Marines Case: International Tribunal for the Law of the Sea to hear case next month

The International Tribunal for the Law of the Sea has agreed to hear an appeal seeking to stop criminal proceedings against two Italian marines charged with shooting dead two fishermen in February, 2012.

The appeal filed by Italy says, “India shall refrain from taking or enforcing any judicial or administrative measures against Sergeant Massimiliano Latorre and Sergeant Salvatore Girone in connection with the Enrica Lexie incident, and from exercising any other form of jurisdiction over the Enrica Lexie incident”.

It further asks India to “take all measures necessary to ensure that restrictions on the liberty, security and movement of the marines be immediately lifted to enable Sergeant Girone to travel to and remain in Italy and Sergeant Latorre to remain in Italy throughout the duration of the proceedings”.

The Appeal has been filed under Article 290 of the United Nations Convention of the Law of the Sea, which states that “pending the constitution of an arbitral tribunal, any party to the dispute may request the International Tribunal for the Law of the Sea to prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm”.

The arbitration proceedings against the two marines- Massimiliano Latorre and Salvatore Girone will begin on August 10 and will also rule on Italy’s demand that Girone be sent back to Italy pending trial. He is currently living at the Italian mission in New Delhi, after he was denied permission to go home. Lattore was allowed to travel to Italy last year, after being diagnosed with a medical condition.

As per reports, India would be represented at the hearings in Hamburg by International Law expert and former Ministry of External Affairs Additional Secretary Neeru Chadha, along with Additional Solicitor General P.S. Narasimha. Domain experts will also be retained.

The two marines were part of the team escorting the Italian-flagged oil tanker Enrica Lexie. They had been arrested and prosecuted for opening fire on fishermen they mistook to be pirates with automatic weapons in 2012.

Italy had earlier moved for a separate arbitration panel to be constituted to hear the case. The proceedings will be conducted at The Hague. However, according to International Law expert, V.S. Mani, “Italy is going to have a hard time explaining what harm will be done if its pleas are heard in the final arbitration. After all, it waited for a year since orders were passed by India’s Supreme Court to move for international arbitration. If it could wait a year, it can wait for the tribunal at The Hague to come to a decision”.

As per the stand taken by Rome, the shooting took place in waters where India has limited rights, and the trial should therefore take place in an international court. India, however, has argued that it is entitled to prosecute the marines, both because the shooting took place in waters where its rights apply, and because the fishing boat on which the victims were killed was registered in the country.

Earlier this month, a Supreme Court bench comprising Justice A.R. Dave, Justice Kurian Joseph and Justice Amitava Roy allowed Massimiliano Lattore’s application for extension of his stay in Italy on medical grounds. This is his third application since September last year. The Bench had also sought a response from the Union of India (UOI) on a fresh plea of Italian government that it has invoked international arbitration against alleged territorial jurisdiction of India to try its marines for the offence of homicide.

Additional Solicitor General P.S. Narasimha had then told the Bench that India, being a signatory to the International Convention, would participate in these arbitration proceedings. He also said that India had jurisdiction as the alleged offence had taken place in the Indian waters.

The bench had also urged Senior Advocates Soli Sorabjee and K.T.S. Tulsi, appearing for the marine, not to delay the hearing of the petition by which the jurisdiction of the National Investigation Agency to probe the case has been challenged.

Advocate Tulsi had said the plea challenging NIA's right to probe the deaths was filed as the Centre, in an affidavit, had said that the Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act (known as SUA Act) does not apply in the case.

The arrest of the two marines has damaged wider relations, contributing to the collapse of a European Union-India summit planned during Prime Minister Narendra Modi's visit to France and Germany this spring.

In April 2012, Rome paid $190,000 to each of the victims' families as compensation. In return, the families dropped their cases against the marines, but the state's case has yet to come to trial.