The Supreme Court of India needs to take soon an important decision on the issue about the two Italian Marines, kept in Kerala state’s prison since Feb.15, suited to be responsible for killing two fishermen embarked on Saint Anthony Indian’s trawler, during an anti-piracy mission. The following considerations are not a plea, but they arise: first, from the uncomfortable fact that 6 months went by after the 2 sailors from the ‘’Reggimento San Marco’’ were arrested from the Indian authorities; second, because as ex- Italian Navy CincFleet I had them in my chain of command, and therefore I feel morally obliged to express some professional comments and considerations about the incident and the applicable International Law of Sea. As CincFleet I had the chance and the honor to plan and execute several exercise at sea with Indian Navy, and our relationships were always based on professionalism, reciprocal esteem, and fully respect of the belonging flag state. Now it seems that the saddened and unfortunate tragedy that happened is going to create a deteriorated situation between the two countries and probably in regard to the Navies as well. Most likely there is a high risk that the antipiracy operations in general, including the VpD (Vessel protection Detachment), conducted by multi-coalition navies, are going to be severely affected: we do hope that it doesn’t, but it may! The anti-piracy missions are very delicate and the Somali coasts, Gulf of Aden, Indian Ocean in general are the busiest shipping lanes, amid increasing attacks by pirates; we may expect, than, a lot of different case scenario and new issues may arise even if the crews are there with the aim to fight the pirates. India is a Nation that participates with her Navy – in various Task Groups – to counter the piracy, but it is the one that probably – mostly and directly- take benefits from fighting piracy by getting safe traffic lanes in her Ocean. No doubt that in such a particular environment, especially when you are in presence of ‘’suspected piracy and armed robbery’’ it’s very hard to detect and seize them. As a matter of fact even Indian Navy has defended INS Tabar’s action in sinking a ship ‘’suspected’’ near Somalia, in November 2008, that officials confirmed was a hijacked Thai fishing boat, with 14 men on board ;they assumed it was a pirate vessel because the people aboard were armed and didn’t respond to emergency signals. Providing they both were in High Seas, the situation is quite similar to the one of the 2 Italian marines embarked on Enrica Lexie as protection detachment; according to their mission and the ROE (rules of engagement), they took the appropriate actions regarding a ‘’very suspected vessel’’ seen with men armed and not answering to emergency flares, but continuing to close to the Italian ship. The arena was High seas, that means international water being far from the coastline more than 12 nautical miles (TTW: territorial water), at about 20 nm, where nobody can say that national law applies, even introducing a fake concept that the jurisdiction of a country extend to an erroneous ZEE (zone economic exclusive) that goes in the high seas for 200 nm! The Italian marines, as military sailors, carried out the duty in accordance with UN 1846 Resolution and with the Italian law about VpD (n° 130; august 2nd 2011) and, above all, iaw the UNCLOS (United Nation Convention of Law of Sea) rules; the incidents took place in High seas- Blue water where only the international law and UNCLOS have to be applied: so in case of an incidents of any nature the inquiry or any other business has to be carried out by the ‘’ Flag State ’’ of the ship, only. Instead many doubts and discrepancies arose from the incidents itself; starting from the relative fixes of the two boats that looked very far apart, to the caliber of the rounds fired that are inconsistent with their arms, etc; playing initially a trick on Lexie’s crew asking to get in the Kochi harbor to recognize a suspected pirate’s boat, while the truth intent was to seize them. That’s absolutely out of any civilian act and not in adherence with the international law; as a matter of fact the behavior of Lexie and her crew demonstrate a perfect ‘’bona fide’’in getting to that port. Further the 2 marines, after the ‘’suspected’’ boat didn’t alter the course and continue to close in on the vessel disregarding all the flares and the attempts to communicate the danger, they shot 3 series of gun shots for dissuasion purposes in the air and water, but they didn’t hit the hull of the boat ‘’suspected of piracy’’, nor –I personally believe – any of the men on board of the Saint Anthony. So in conclusion the Supreme Court of India needs to clarify with an unambiguous interpretation that since the alleged act was (presumably ?) committed outside the TTW of India, Indian courts would not have any jurisdiction, but they have to be prosecuted by the ‘’Flag State’’, therefore by Italian military courts. In addition the 2 marines were in the service of Italian state and as such they have ‘’sovereign and functional immunity’’ recognized by all the existing international conventions. The Lexie case is more than a complex one; it started with an unclear ‘’imbroglio’’, followed by a series of abuses and discrepancies, while the 2 marines are still detained in India: for the above said considerations the international law and the related conventions indicate that only Italian courts have the right to try the 2 Italian marines. The Supreme Court could have an extra card to play to get out of the controversy : to raise the issue to a neutral International Court to define, once for all, the legitimate right to judge them, so avoiding that India’s reputation as an upholder of international law could be undermined for the future, forever!
Giuseppe Lertora