Italian marines case: India entitled to claim compensation from Italy but cannot prosecute: UN court

New Delhi, July 02: The Permanent Court of Arbitration in the Hague has upheld the conduct of the Indian authorities in the Enrica Lexie case in which two Italian marines were accused of killing two Indian fishermen in 2012, and said New Delhi is entitled to get compensation in the case but can't prosecute the marines due to official immunity enjoyed by them.

The international tribunal also held that the two marines violated the international law, and as a result Italy breached India's freedom of navigation under the United Nations Convention on the Law of the Sea (UNCLOS), External Affaires Ministry Spokesperson Anurag Srivastava said during an online media briefing on Thursday.

In February 2012, India accused two Italian marines, Salvatore Girone and Massimiliano Latorre, on board the MV Enrica Lexie --an Italian flagged oil tanker-- of killing two Indian fishermen who were on a fishing vessel off Kerala coast in India’s Exclusive Economic Zone (EEZ).

The issue of jurisdiction over the case became a big argument between the two countries. While India maintained that the incident happened in Indian waters and also the fishermen killed were Indian, and hence the case must be tried as per its laws, Italy claimed that the shooting took place outside Indian territorial waters and its marines were on-board the ship with the Italian flag.

India had detained the two marines after the shooting incident but later allowed them to return to Italy on specific conditions following separate orders by the Supreme Court. Srivastava said the tribunal decided 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 St. Antony".

"The Tribunal upheld the conduct of the Indian authorities with respect to the incident under the provisions of the UNCLOS. It held 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," he said.

The MEA spokesperson also 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. Srivastava said the tribunal rejected Italy’s claim to 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 tribunal said it "decides by three votes to two, in respect of Italy’s Submission...that the marines are 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 the marines." While Judge Vladimir Golitsyn (President), Judge Jin-Hyun Paik and Professor Francesco Francioni voted in favour of Italy, Judge Patrick Robinson and Dr Pemmaraju Sreenivasa Rao voted for India in the five-member tribunal.

Italy had maintained that the two marines aboard the tanker mistook the 'St Antony' for a pirate vessel.

"The tribunal took note of the commitment expressed by Italy to resume its criminal investigation into the events of February 15, 2012," he added. Meanwhile, the Italian foreign ministry, in a statement, said the two marines are entitled to immunity from the jurisdiction of Indian courts. "India is therefore precluded from exercising its jurisdiction over the Marines.

The Arbitral Tribunal has therefore agreed on the Italian position that the Marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts," it said. It said Italy has to resume its criminal investigation into the Enrica Lexie incident, taking note of the commitment expressed during the proceedings in the tribunal.

On the verdict that India is entitled to payment of compensation in connection with loss of life, physical harm and material damage to suffered by the captain and other crew members of the Indian fishing boat, the Italian foreign ministry said the the "tribunal invites the two parties to consult with a view to reaching agreement on the amount of compensation due."

"Italy stands ready to fulfill the decision taken by the Arbitral Tribunal, in a spirit of cooperation," it said. Srivastava said the tribunal also decided that it shall retain jurisdiction should either party or both parties wish to apply for a ruling from it in respect of the quantification of compensation due to India.