The Enrica Lexie Case up for Arbitration, After More Than Two Years of Delays
by Giuseppe Lorenzo Rosa , Esq.

More than two calendar years have elapsed since the Enrica Lexie incident occurred, and the matter is still far from being handled the way the international maritime and legal community had reasonably expected.
Italy is currently strongly pressing for international arbitration to take over this case, which involves two marines, Marines Massimiliano Latorre and Salvatore Girone, who are awaiting trial over the killing of two Indian fishermen off Kerala coast in February 2012. Diplomatic tensions sparked between India and Italy, but bilateral efforts have failed.
“We are off the bilateral level, to raise the dispute to an international level: we are still willing to talk to the Indians,” but “we have no other option than resorting to international arbitration,” the current Italian Defense Minister stated before the Upper House of Italy’s Parliament on April 24, 2014.
Rome does not consider the court proceedings in India “valid,” Ms. Francesca Mogherini, the Italian Defense Minister, was quoted as saying by ANSA news agency. “We do not accept a (future) Indian trial whose validity we do not recognize . . . We are mapping out a panel of experts under the leadership of a coordinator to pursue the new phase,” Ms. Mogherini said.
Rome wants the marines to be tried in Italy, claiming the incident took place in international waters. However, New Delhi says it has the right to try the Italians because the victims were Indians on board an Indian fishing boat. A special Indian Court on March 31 has fixed July 31 for hearing the case of the two Italian marines.
The Italian marines’ matter has also become a further opportunity for political challenge among India’s leading political parties, soon before General Elections occur, with Ms. Sonia Gandhi—President of the Congress Party—being overtly accused by opposition leaders of influencing the Judiciary because of her Italian birth and citizenship. Based on the recent election outcome in India, it is yet unclear how the Narendra Modi administration will handle this diplomatic issue between the two countries. But the Rule of Law would be better served with the trial in Italy.
                                                            
Case Summary
On February 15, 2012, Enrica Lexie (hereinafter referred to as EL) was sailing approximately 23 nautical miles off the Indian coastline. On that very same day, according to the International Maritime Bureau (IMB), another assault was reported, as follows:
Attack Number: 054-12; Date: Wed Feb 15 2012; Type of Vessel: Crude Tanker; Location detail: Around 2.5 nm South of SPM, Cochin Anchorage; Type of Attack: Attempted; Narrations: 15.02.2012: 1650 UTC: Posn: 09:57N – 076:02E, Around 2.5 nm South of SPM, Cochin Anchorage, India. About 20 robbers in two boats approached an anchored tanker and attempted to board her. The lookout crew noticed the robbers, raised the alarm and crew mustered. The robbers aborted the attack upon seeing the crew alertness and moved away.
By widespread acknowledgement in the maritime community, the IMB Piracy Reporting Centre (PRC) has consistently managed to raise awareness within the shipping industry, which includes the shipmaster, shipowner, insurance companies, traders, etc., in the areas of the high risks associated with pirate attacks, or specific ports and anchorages associated with armed robberies onboard ships.
Since, as we know, the PRC works closely with various governments and law enforcement agencies, and is involved in information sharing with industry, law enforcement, governments, and flag states, it may be reasonably assumed that, prior to February 15, 2012, EL’s shipmaster and the shipowner, as well as the Italian Navy who had deployed its marines (members of the elite “Regiment San Marco”) onboard EL, were all well aware of the risky area EL would sail through.
India and Italy both have quite long-established membership records in global maritime agencies, including the International Maritime Organization (IMO), which is the specialized unit within the United Nations devoted to monitoring and reviewing maritime matters.
Despite what might appear a de facto well-known scenario at the time of the February 15, 2012, events, no one possibly could have expected that EL would soon become synonymous with a tragedy at sea. The events have triggered one of the most dramatic confrontations between India and Italy in years, and could pose serious challenges to international law as we know it.
 Accounts of the Event and Interpretation -

In a comment posted on February 17, 2012, in Lloyd’s List and reproduced in IMO’s own February Bulletin, it was stated as follows: “Because the Enrica Lexie incident took place outside Indian territorial waters, the law of flag state will probably apply. Both murder and manslaughter charges could come into consideration.”
Contrary to what may have appeared to be the logical follow-up, as is highlighted in its earlier comment, Lloyd’s List on February 20, 2013 reported as follows:
Indian police have opened a murder inquiry relating to the crew of an Italian tanker after two local fishermen suspected of being pirates were killed after coming under fire from the vessel. Meanwhile, the Indian defense minister AK Antony has demanded punishment for the guilty, even though investigations are still incomplete and the matter has yet to come before a court of law. In addition the state government of Kerala has pledged to underwrite any legal expenses incurred by the victims’ families in seeking compensation from operator Dolphin Tanker.
Accounts of the events are yet far from being settled, with the Italians insisting that Enrica Lexie was attacked first, that the fishermen were armed, and that warning shots were fired.
After the two Italian marines were charged with murder under section 302 of the Indian Penal Code, the incident caused very serious diplomatic tensions between India and Italy. The case is far from being over, despite the latest developments, and the hint of a more careful due process of law being applied by India, compared to an outlook of straight confrontation, in and out of court, over the several long months since the incident occurred.
Amid extensive media coverage and a strong impact upon politics and contingent government policies in India and Italy alike (the Italian Foreign Minister at the time resigned quite unexpectedly in an apparent internal contention about the way the Italian Cabinet had managed the affair over a 12-month time span), Lloyd’s List has consistently published updates and comments on the affair in an unbiased attitude—comments like “[the] incident occurred on an Italy-flagged ship in international waters; therefore Italy has jurisdiction; as members of the armed forces, the Italian marines are immune from prosecution by other states,” were stated to reflect the Italian position.
India’s position in the EL affair has appeared to be biased by that country’s attempt, which possibly dates back a few years before the incident occurred, to exclude from the piracy affected area its own Exclusive Economic Zone (hereinafter referred to as the EEZ).
In 2012 the International Transport Workers Federation (ITF) came up with recommendations to apply IMO Best Practice to an area extending eastward from the Somali coastline up to the 76th Meridian and southbound to the 16th Parallel.
The IMO Best Practice, recommended to private shipowners, applies to all vessels, which also means those that have private security guards and armed forces units on board. The IMO language specifically recites, “The provision of Military Vessel Protection Detachments—VPDs—deployed to protect vulnerable shipping is the recommended option when considering armed guards.”
Pursuant to UNCLOS, power can also be exerted in the EEZ by warships belonging to foreign countries or by private ships that have private security guards or VPDs for the purpose of protecting vessels and shipping from piracy attacks. This is universally considered the logical consequence of the principle of freedom of navigation.
The review of the Indian Government attitude to the implications of the EL matter (both at central and state level) indicates India claims to exert exclusive control over navigation in international waters, possibly because it wishes to appease the Indian fishermen who flock in large numbers to the Indian coastline and, thus, aggressively challenging vessels transiting the region.
There were reports by the Indian Coast Guard, within a few hours after the EL incident, appearing to raise the issue that Indian fisherman were attacking vessels in order to keep them away from fishing nets.
In their analyses, legal commentators and professionals should, as always, keep clear of possible political bias (in Italy and India alike), and the courts should follow suit.
The Commonwealth of Australia, back in 2004, tried to unilaterally impose an area of maritime identification for security reasons, which it ended up having to altogether repeal because the option was inconsistent with IMO rules.
Countries like Italy and Germany, upon ratifying UNCLOS, filed statements clearly aimed to oppose any extension of jurisdiction within EEZs beyond the scope of UNCLOS provisions.
Assuming the law of the sea is of adamant relevance to the shipping community at large, and UNCLOS, IMO Rules and Best Practice, ITF recommendations, and Lloyd’s List reviews have been shared by India in its longtime membership of the international legal community, I see no reason why a narrower approach should be allowed in the contingent case of the EL.

Endnotes

1. Pursuant to the presentation available on its website (www.icc-ccs.org), the IMB Piracy Reporting Centre (PRC) follows the definition of Piracy as laid down in article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and Armed Robbery as laid down in Resolution A.1025 (26) adopted on 2 December 2009 at the 26th Assembly Session of the International Maritime Organisation ( IMO).

2. See Lloyd’s List, p. 2.Lloyd’s List, p. 2.