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  • UPASANA SAIKIA

ANALYSIS ON FISHERMEN’S KILLING CASE (ENRICA LEXIE)

BY: UPASANA SAIKIA,BA.LLB(HON.S),2 ND YEAR,SCHOOL OF LAW, LOVELY PROFESSIONAL UNIVERSITY, PUNJAB

INTRODUCTION 

The Enrica Lexie case, also known as the Italian marines case, involves a shooting incident  that occurred at the coast of Kerala, India, in 2012. Two Italian marines, Salvatore Girone and  Massimiliano Latorre, aboard the Italian oil tanker MV Enrica Lexie, travelling from Egypt to Singapore. An Indian vessel too was travelling towards Indian Coast and all of a sudden the  Italian marines opened fire on the Indian fishing boat, resulting in the deaths of two Indian  fishermen. The Enrica Lexie case, involving the deaths of two Indian fishermen at the hands  of Italian marines, remains a poignant reminder of the complexities surrounding jurisdiction  and accountability on the high seas. 

THE INCIDENT: 

In February 2012 an Indian vessel St. Anthony, was returning back to its coast after its  completion of daily operation. When two Italian marines were travelling from Egypt to  Singapore at the same time, and all of a sudden the two Italian flagged ship start to gunshot on  the Indian vessel for continuous two minutes resulting to severe damage of the vessel along  with two Indian fishermen shot dead on the spot. The incident took place 20 nautical mile from  Kerala coast. After the incident the Italian ships travelled for long three hours and then arrested  by Indian navy. The trial began at the Kerala coast and the two Italian Navy officer who gunshot  were also arrested. The Italian marines were arrested and charged with murder under Sec.302  of IPC. The control over the event is being contested by Italy and India, as Italy was seeking  provisional orders from the ITLOS to force India to halt prosecutions and free the Italian  marines who were detained until such time as the UNCLOS Arbitral Tribunal shall determine  which nation has the right to assert jurisdiction. The Italian marines onboard the Enrica Lexie  claimed they mistook the fishermen for pirates and acted in self-defence.

ARGUMENTS FROM BOTH SIDES: 

The incident sparked a lengthy legal and diplomatic dispute between India and Italy.  Arguments From The Indian Perspective: 

1. Violation of territorial sovereignty: India argues that the shooting occurred within its  territorial waters, making it a violation of its sovereignty. The Indian fishermen were  unarmed and posed no threat to the Italian vessel, making the use of lethal force  unjustifiable. 

2. Jurisdiction and legal accountability: India asserts that the Italian marines must be held  accountable under Indian law for their actions. The incident resulted in the loss of  Indian lives, and therefore, the perpetrators should face trial in India to ensure justice  for the victims and their families. 

3. Upholding international law: India contends that allowing the Italian marines to be tried  in Italy would set a dangerous precedent and undermine international law. Allowing  foreign nationals to evade accountability for crimes committed in another country's  territorial waters could encourage impunity and destabilize maritime security. 

Arguments from the Italian perspective: 

1. Jurisdictional dispute: Italy argues that the shooting took place in international waters,  beyond India's territorial jurisdiction. Therefore, the incident falls under Italian  jurisdiction, and the Italian marines should be tried in Italy according to Italian law. 

2. Diplomatic immunity: Italy asserts that the Italian marines were serving on a  government-authorized mission to protect the MV Enrica Lexie from piracy threats in  the Indian Ocean. As such, they should be entitled to diplomatic immunity, protecting  them from prosecution in India. 

3. Fair trial concerns: Italy raises concerns about the impartiality and fairness of the Indian  legal system, citing issues such as delays in the legal process, inadequate prison  conditions, and the potential for political interference. Italy argues that the Italian  marines would not receive a fair trial in India and could face harsh treatment if  extradited. 

These arguments highlight the complex legal and diplomatic issues at stake in the Enrica Lexie  case, with both India and Italy advocating for their respective positions based on principles of  sovereignty, jurisdiction, and legal accountability.

LEGAL IMPLICATIONS: 

The Enrica Lexie incident immediately triggered a legal quagmire, with India and Italy locked  in a dispute over jurisdiction and legal accountability. India argued that the incident occurred  within its Exclusive Economic Zone (EEZ) and thus fell under its jurisdiction, while Italy  maintained that it took place in international waters, putting it under Italian jurisdiction. This  clash of legal interpretations raised complex questions about the application of international  law, particularly the United Nations Convention on the Law of the Sea (UNCLOS), which  delineates maritime zones and their respective legal implications. 

LEGAL PROCEEDINGS:  

In the aftermath of the incident, the Italian marines, Massimiliano Latorre and Salvatore  Girone, were detained by Indian authorities and charged with murder under Indian law. The  case proceeded through the Indian legal system, with the marines facing trial in Indian courts.  However, Italy vehemently contested India's jurisdiction, arguing for the return of its marines  and advocating for the case to be adjudicated in Italian courts or through international  arbitration. 

The Enrica Lexie case evolved into a protracted legal and diplomatic standoff, straining  relations between India and Italy. Despite intense negotiations and diplomatic efforts, a  resolution seemed elusive for years as both nations remained steadfast in their positions. Resolution and Aftermath: After years of legal wrangling and diplomatic tensions, a  breakthrough finally emerged. In 2020, the Permanent Court of Arbitration in The Hague ruled  that India was entitled to claim compensation from Italy for the loss of life but did not have  jurisdiction over the incident itself. Italy agreed to pay compensation to the families of the  deceased fishermen, effectively bringing closure to the legal dispute.

JUDGEMENTS IN FAVOUR OF INDIA: 

• The tribunal determined that the conduct of the Italian military personnel violated  India's rights to freedom of navigation as outlined in UNCLOS Article 87(1)(a) and  90. 

• Additionally, the tribunal ruled that India has the right to receive compensation for  the loss of life, injuries, damage to property, and psychological suffering endured  by the captain and crew of the 'St Antony,' the Indian vessel. 

JUDGEMENTS IN FAVOUR OF ITALY: 

• India had requested the Permanent Court of Arbitration (PCA) UNCLOS  tribunal to determine that the PCA lacked jurisdiction regarding the case  presented by Italy. Despite this, a majority of the five-member bench, with a  4-1 ruling, concluded that it did indeed have jurisdiction over the matter. 

• The Italian argument, asserting that the marines, as members of the Italian  armed forces engaged in official duties, were exempt from trial in Indian courts,  was upheld. Consequently, immunity was granted to the Italian marine officials. 

BASIS OF THE JUDGEMENT: 

• The tribunal noted that both India and Italy had overlapping jurisdiction over the  incident and possessed legitimate legal grounds to initiate criminal proceedings against  the marines.  

• However, it also acknowledged that the immunities afforded to the marines as state  officials constitute an exemption from the jurisdiction of Indian courts, thereby  preventing them from adjudicating the case involving the marines. 

IMPACT 

The killing of two fishermen case has a huge impact concerning about the jurisdiction over  territorial sea. The judgment of the case determines the India’s contiguous zone over sea upto  24nm from the Indian coast. It clearly concluded that the incident took place under the  jurisdiction of India and that Italian marine was held liable to pay compensation to India for  committing offence that caused irrecoverable damage. Therefore, this case depicts an important  highlight over territorial sea jurisdiction under International Law. 

CONCLUSION: 

The Enrica Lexie case serves as a sobering reminder of the complexities inherent in maritime  law and the challenges of reconciling competing jurisdictional claims. Beyond the legal and  diplomatic intricacies, it underscores the human tragedy that unfolded at sea, highlighting the  importance of pursuing justice for the victims and their families. As the international  community grapples with maritime disputes, the Enrica Lexie case stands as a testament to the  need for clearer legal frameworks, enhanced cooperation, and robust mechanisms for resolving  conflicts on the high seas. 

REFERENCES 

❖ http:// enrica lexie pdf, (last visited April 26th ,2024) 

❖ http:// Italian marine case (visited April 27th ,2024) 

❖ http:// google search/enrica lexie.com (Last visited April 27th ,2024 ❖ Background Enrica lexie case available at: http://cyberware-background-review.com (Last  visited April 27th ,2024) 

❖ Legal works.com (Last visited April 27th,2024) 

https://internationallaw.blog/ (Last visited April 27th,2024)

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