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THE ITALIAN
MARINES AND INTERNATIONAL LAW
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The
lethal firing on 15-02-2012 by the two Italian marines – Salvatore Girone and Massimilano Latorre – of an Italian Navy Vessel Protection Department
(VPD) on board the Italian oil tanker MV
Enrica Lexie on
fishermen aboard the Tamil Nadu Fishing boat ‘St.
Antony’
off the Kerala shores, probably mistaking them to be pirates, which has taken
the lives of two fishermen – Ajesh Binki and Valentine aka Gelastine – has
stirred up a hornet’s nest of controversies. Admittedly the Indian boat was not
flying an Indian or any other flag, and was in the high seas [and that illegally, it seems] – in the contiguous zone at some 20.5 nautical
miles from the coastal baseline – whereas the Italian ship, flying the Italian
flag, was protected by a detachment of Italian marines to counter any danger
from piracy on the high seas. The flag ship principle that a ship on the high seas is a
floating island belonging to the nation whose flag she is flying makes the
Italian ship basically come under the Italian jurisdiction. As such, the duty/function of proceeding with
criminal charges on the marines or acclaiming them for their anti-piracy
action, whichever be the case, ought to primarily belong to Italy and not India
However, on the plea
that two fishermen were killed when aboard a fishing boat registered in India
and that some central government notifications had extended the applicability
of section 4 of the Indian Penal Code and of Section 188/188A of Criminal
Procedure Code to the contiguous zone and specifically notified areas in the
exclusive economic zone, the Kollam police and Kollam Magistrate exercised
jurisdiction,
lured the Italian ship which was going away towards Djibouti, and was already at
about 39 plus nautical miles, to come back for discussions on the piracy
problem. But once they had anchored at Kochi, the two Italian
marines were arrested, remanded to judicial custody for several days before the Italian consulate
staff intervened and bail was secured for them under strict conditions. Italy complains that detention of their marines, enjoying strict
sovereign or functional immunity under international as also Italian law, is arbitrary, excessive and violates the fundamental
rights under Articles 14 and 21 of the Indian Constitution even.
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