India has received partial vindication in the dispute with Italy over the killing of two fishermen, Ajesh Binki and Valentine, by special force marines on board an Italian merchant vessel, the oil tanker, Enrica Lexie on February 15, 2012.
However, India's ‘athithi devo bhava’ attitude towards the two Italian marines, who were arrested for the deaths, has precluded India from judging them. The Arbitral Tribunal, which is constituted under the United Nations Convention on Law of the Sea (UNCLOS), said 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 from judging the marines. It also said that both countries had concurrent jurisdiction over the incident and a valid legal basis to institute criminal proceedings against the marines.
Italy had gone to the tribunal in June 26, 2015 over the dispute with India. The tribunal upheld the conduct of the Indian authorities with respect to the incident and said that the actions of the Italian military officers and consequently Italy breached India's freedom of navigation under UNCLOS Article 87 (1) (a) and 90. Italy's claim for a compensation for the detention of the marines was rejected, but it took note of the commitment expressed by Italy to resume its criminal investigation into the events of February 15, 2012.
The tribunal said that India was entitled to payment of compensation in connection with the loss of life physical harm, material damage to property and moral harm suffered by the captain and crew of the fishing vessel St Antony. The two countries have been told to consult with each other over fixing the compensation amount, though the tribunal will retain its jurisdiction if any one, or both, approach it for quantifying the compensation due to India.
The incident led to much diplomatic tension between the two countries after the Indian Coast Guard apprehended the Italian vessel and two of the marines on board, Salvatore Girone and Massimiliano Latorre were arrested by the Kerala police. After the postmortem of the two fishermen, the Kerala Police charged them with murder.
The boat was returning from a fishing expedition while the Italian tanker was on its way to Egypt from South Asia. The trigger happy marines shot at the fishing vessel as it came too near. Those were the days of active piracy in the Indian Ocean and Arabian Sea.
However, India delayed with the case. It even allowed the marines to return to Italy next year, on temporary leave. Once back home, Italy said they wouldn't let the marines return without a guarantee from India that they wouldn't be given capital punishment. India refused, and after hectic diplomatic parley, the marines returned without the guarantee. India though watered down the charge from murder to violence, thus ensuring there would be no capital punishment.
India also allowed the marines to stay in the Italian embassy in New Delhi, a concession that is not usually given to foreigners awaiting trial in Indian courts. Latorre was allowed to go to Italy again in 2014 for surgery following a brain stroke, and allowed to remain there. The other marine was also granted bail in 2016.
“India has taken note of the award and will be in touch with relevant entities on the matter,'” said MEA spokesperson Anurag Srivastava, in response to the mixed-bag verdict.
