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Will justice have its way or Rome bite populism bullet?

world Updated: Apr 04, 2013 01:41 IST
Noopur Tiwari
Noopur Tiwari
Hindustan Times
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“Free our marines” was the message projected on the facade of the two thousand year-old Colosseum in Rome last year in March.



Now, Rome’s right wing mayor, Gianni Alemanno, who came up with the idea of turning off the lights of the Colosseum and several other landmarks in Rome, wants to draw more attention to what he calls the “shameful case of the two marines”.

More protests are being planned against the Italian government as the marines case stokes anger in Italy. A right wing group wants outgoing Italian PM Mario Monti who has the support of the centre-left, to resign from his position as Senator for life. Some want Italy to shut down its embassy in India and recall the ambassador.

Right leaning parties are gearing up to step up protests, adding more chaos to the political stalemate in Italy over government formation. Fresh elections are likely to take place if no agreement is reached between Italy’s political parties.

Italy’s caretaker government is being blamed for what is being seen as a series of blunders in the marines’ case. The government was severely criticised for promising the marines and their families that they would not have to return to India and then sending them right back.

Former Prime Minister Silvio Berlusconi’s People of Freedom party (PdL) said on Monday that outgoing Prime Minister Mario Monti did not have the authority to send the marines back to India. Ex-Foreign Minister Terzi who resigned over the marines’ issue did not agree with his government’s decision to let the two marines go to India.

“Sending the marines back to India goes against Italian laws”, says Professor Natalino Ronzitti of the Istituto Affari Internazionali. “Italian laws clearly state that no citizen can be surrendered or extradited to a country if there is a possibility that capital punishment can be inflicted.

Death penalty was abolished in Italy more than a hundred years ago. It is not clear whether there has been a formal written agreement in which India has promised there will be no death penalty”.

The guarantee given by India seems based on the perception that such a case would not merit a death sentence. India may have given an assurance to Italy, however, the executive branch cannot impose a line of conduct to the judiciary. This uncertainty is making Rome uncomfortable.

More than a year has passed since Massimilano Latorre and Salvatore Girone were arrested by the Kerala Coastal Police, the two marines have still not been tried in any court. The Supreme Court of India held that the State of Kerala has no jurisdiction to investigate the case but that India does have jurisdiction to proceed with the investigation and trial.

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The court however, left a door open on the question of jurisdiction which, it says, can be taken up again at the trial court. The Supreme court also maintains that if both the Republic of Italy and India had the power to prosecute the accused, it would be much more convenient and appropriate for the trial to be conducted in India.

This case seems to have no precedent as most cases in international waters deal with collisions between ships and not to crimes involving homicide. Parallels are being drawn with a case called the ‘Cavalese cable-car disaster’ in Italy in 1998. A low flying aircraft with two US marines cut the wires of the cable car leading to the death of twenty people on Italian soil.

Italy wanted the marines to be tried in an Italian court but had to send them to the US. The ‘Status of Forces Agreement’ between the two countries gave special immunity to foreign armed forces from criminal prosecution in Italy. India, so far, has not been in favour of entering into any such pact.

Even if they are declared immune in India, legal experts say, the marines would technically not be immune in Italy, where they will then be tried, by military or ordinary courts for voluntary or negligent homicide. Given the heroes’ welcome they received in Italy, it is unlikely that they will receive harsh punishment even if they were found guilty.

However, the first step will be the setting up of a special court in India where the Italian side will again be able to ask for a trial and Italy.

They can also argue that as organs of state, the Italian marines enjoy functional immunity because they are military personnel of the Italian Navy.

If the Special Court accepts this argument, the Italian state, taking responsibility for the deaths of the Indian fishermen will pay compensation to the victims’ families.

In the Cavalese disaster, Italy fought hard for a compensation of 1.9 million dollars for each victim. If this example is anything to go by, Italy should ideally offer a much bigger compensation to the families of the fishermen.

If the trial takes place in India and the marines are found guilty, they are likely to serve their sentences in Italy under a treaty recently ratified by both nations.

India and Italy also have the possibility of going to an international court to settle the dispute. Italy alone however, cannot make an appeal. However, both India and Italy would have to agree for an international adjudication.

One possibility is that the International Court of Justice, could settle the dispute. Italy and India could also go the International Tribunal for the Law of the Sea. India however is reluctant to go down this path.