The recent verdict by the arbitral tribunal constituted within the framework of the UN Convention on the Laws of the Sea (UNCLOS) is a singular travesty of justice and is correctly seen as a victory for Italy. Italy has shown superior navigational skills through the deep waters of international arbitration. A reading of the text clearly shows that India had weakly defended its position. The natural question to ask is did India deliberately choose to put up a weak case, or is it sheer incapability? If a choice was made, what prompted such a decision?
The first thing to understand about this case is that the Italian ship Enrica Lexie fled away after shooting and killing two Indian fishermen. If they had fired by mistake, they should have stopped and extended help to the fishing boat rather run away. The Indian Navy had to send a Dornier to ‘persuade’ Enrica Lexie to come back to Kochi. The Italian ship had claimed that it had carried out a successful anti-piracy action after it was fired upon by pirates. The INS Kabra, when sent to check whether the Italian ship was fired upon found no bullet marks on it. I personally remember officials in the Italian embassy telling me that afternoon that it was a Greek ship that killed the fishermen. Even now, if you talk to the embassy, it takes the line that the shots were fired by another ship. A few weeks later, Staffan de Mistura, the Italian special envoy dealing with the matter, told me at Thiruvananthapuram that according to him the ship was ‘tricked into’ coming back to Kochi and that it could have comfortably reached Port Said in a few hours. In short, from the onset, Italy started with a lie.
Secondly, from the beginning Italy took an aggressive stand based on an erroneous interpretation of the law. Italy was not interested in seeking a diplomatic resolution. This became evident when a formula was informally suggested to Italy. The background is as follows: the then Italian ambassador had approached me for help. At that time the marines were in Kerala under the custody of the local police. The ambassador wanted to know whether he could go and see the Kerala chief minister, to which I let him know that it might be difficult. I then suggested to the ambassador the following formula:
The state of Kerala will frame charges for homicide not amounting to murder; the two marines might get some years in prison; after they have spent some time in jail, they could be transferred to Italy to complete the sentence under the agreement signed a month before the shooting incident that provided for foreign nationals undergoing a prison sentence in another country to go back home to complete the sentence.
The ambassador liked the formula and asked me to find out whether Kerala would agree to it. I told him that I could sound out the chief minister via a telephonic conversation, but to take it further I would need to go and talk to him in person after the Ambassador had given to me in writing that the Italian government accepted the formula and requested me to proceed further.
I spoke to the chief minister from the Italian embassy and proposed the formula. His immediate reaction was positive, but he needed more time to decide. For good measure I told the chief minister that some Malayalis in Rome were feeling threatened to the extent that an Indian friend married to an Italian had stopped wearing a sari outside her house.
But, the Italian ambassador checked with Rome about my formula and got a flat and stern rejection. If Rome had agreed the formula might have worked and the marines might have got back to Italy by 2014. When I had advanced the formula, the union government was inclined to go by the advice of the state.
Now coming to the Indian side, the matter could have been settled if the external affairs ministry (MEA) was left free to handle it. But the home ministry came in the way, we do not know why. Perhaps, there was an erroneous assumption that any speedy settlement might reflect adversely on Sonia Gandhi.
As for the legal aspects, the MEA’s legal and treaties division (L&T) had made a strong case that the incident had nothing to do with UNCLOS and that it should be dealt with under the Indian Penal Code. But the basis on which Italy claimed jurisdiction was outlined Article 97 of UNCLOS, which says that “in the event of an incident of navigation which gives rise to the penal responsibility of any person in the service of the ship, no penal proceedings may be instituted against such a person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national”.
Shooting unarmed, innocent fishermen and killing them is not an “incident of navigation,” it is a crime. Since UNCLOS does not apply, and the incident occurred within India’s contiguous zone, the culprits tried to run away, and the victims were Indian nationals, it follows that India has jurisdiction over the matter.
Although the L&T had given its note immediately after the incident, it seems the system of government in India was unable to make use of it.
Last year, I talked to a retired IPS officer who as part of the National Investigation Agency had dealt with this case. He told me that India had no jurisdiction. When I asked him about the note from L&T he replied that he had never seen it. To my question why he did not ask for a note, there was no reply. This outlines the systemic lack of coordination in the government.
The Supreme Court also contributed significantly to the confusion in two ways. Italy argued incorrectly that as Kerala had not signed the UNCLOS, it had no locus standi in the matter. The Supreme Court accepted that argument and stopped the proceedings in the Kerala high court. The fact of the matter is that since India had signed the UNCLOS, the Kerala was only acting on behalf of the union of India.
Secondly, the court complicated the matter further by saying that although it was seized of the matter it was willing to consider Italy’s plea that India had no jurisdiction in the matter. One may assume that in the Indian system, the L&T note would not have reached the Supreme Court.
It is also important to discuss the compensation paid to the bereaved families of Jeslestine, 45, and Pinku, 22, the fishermen killed by the marines as the discourse in the media has ignored them and focused on the Italians.
De Mistura had contacted me to ask for my help with this incident when deputed as the special envoy. I did not tell him of the formula that his government had rejected. My intention was to persuade him to pay some compensation to the families of the victims. Initially, he refused on the grounds that offering a compensation would imply Italy accepted the charge of its marines having shot the fishermen. I told him that the shooting was a fact. It was in that context that he told me that the ship should have sailed off to Port Said had it not been intercepted. Finally, he agreed to pay 30 lakh rupees as compensation, which we managed to have raised to one crore rupees.
I had advised de Mistura not to involve his lawyers in the process of compensation and not to seek any written undertaking from the families. He had agreed. But his lawyers made the family sign a paper that said they forgave the marines in the name of Christ and were withdrawing their plaint, a move which later earned the displeasure of the court.
What is the way out? Having virtually surrendered our claim for jurisdiction, there is no point in keeping the marines here. The arbitral tribunal is likely to rule formally that India has no jurisdiction. Let the marines go to Italy and let us learn a lesson from our follies at many levels.