India entitled to relief in marines case: UN court

A UN court ruled on Thursday that India is entitled to compensation in connection with the 2012 killing of two crew members of a fishing boat off the coast of Kerala

A UN court ruled on Thursday that India is entitled to compensation in connection with the 2012 killing of two crew members of a fishing boat off the coast of Kerala by Italian marines guarding an oil tanker, an incident that had taken bilateral ties to an all-time low.

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But, at the same time, the five-member arbitral tribunal under the UN Convention on the Law of the Sea (UNCLOS) decided by three votes to two that the marines are entitled to immunity in relation to their acts during the incident and that “India is precluded from exercising its jurisdiction” over them.

“India has taken note of the [tribunal’s] award and will be in touch with relevant entities on the matter,” external affairs ministry spokesperson Anurag Srivastava told a weekly media briefing.

The tribunal began hearing the case after Italy contended in December 2015 that India violated the rights and immunity of the marines – Massimiliano Latorre and Salvatore Girone – by detaining them. Italy also argued that India violated its exclusive right to institute penal proceedings against the marines under UNCLOS.

The two marines, accused of killing fishermen Ajesh Binki and Valentine Jalastine, crew members of the fishing boat St Anthony, were granted conditional bail by India’s Supreme Court and allowed to return to Italy in 2014 and 2016.

The tribunal upheld the conduct of Indian authorities during the incident under the provisions of UNCLOS and held that the actions of the Italian marines breached India’s freedom of navigation under the convention.

The tribunal unanimously ruled that India is “entitled to payment of compensation in connection with loss of life, physical harm, material damage to property...and moral harm suffered by the captain and other crew members of the ‘St. Antony’, which by its nature cannot be made good through restitution”.

It said the two sides should hold consultations to reach an agreement on the amount of compensation. It added the tribunal would retain jurisdiction if either side or both sides wished to apply for a ruling from the court regarding the quantum of compensation. However, if no application is received within a year after the date of the ruling, the proceedings will be closed.

The tribunal set aside Italy’s contention that India breached provisions of UNCLOS, but decided by three votes to two that the Italian marines were “entitled to immunity in relation to the acts that they committed during the incident of 15 February 2012, and that India is precluded from exercising its jurisdiction” over them.

It also decided by three votes to two that India must take “necessary steps to cease to exercise its criminal jurisdiction over the Marines” in view of Italy’s commitment to “resume its criminal investigation into the events of 15 February 2012”.

“Originally, the legal challenge before the Permanent Court of Arbitration was over India’s jurisdiction to try the marines and to that extent the tribunal has held in favour of Italy,” Supreme Court advocate Ishaan George, who was part of India’s legal team in the initial stages of the case, told HT. “But the tribunal has held that India’s action of confiscating their vessel, arresting the marines and other actions are not in violation of UNCLOS...a limited success...,” he said.

Italy’s foreign ministry contended in a statement the tribunal had agreed on its position that the marines, being members of the Italian armed forces engaged in the official exercise of their duties, “cannot be tried by Indian courts”. It also said Rome’s public prosecutor had already opened an investigation into the incident.

“The ministry wishes to emphasise that the award of the tribunal does not make any determination of criminal responsibility in connection with the incident, which it will now be for the Italian judicial authorities alone to ascertain,” it added.

The tribunal rejected Italy’s claim for compensation for the detention of the marines, who were part of an anti-piracy deployment on board the Italian tanker.

At his online briefing, Srivastava said the tribunal observed that India and Italy had “concurrent jurisdiction over the incident” and a valid legal basis to institute criminal proceedings against the marines.

“The tribunal rejected Italy’s claim of compensation for the detention of the marines. However, it found that the immunities enjoyed by the marines as state officials operate as an exception to the jurisdiction of the Indian courts and, hence, preclude them to judge the marines,” he added.

The row over the killing of the fishermen had disrupted bilateral ties for several years, though people familiar with developments said the two sides have now decided to move on from the incident in view of their growing convergence on both bilateral and multilateral issues. The judgment largely brings down the curtain on the February 2012 incident.