by Dharmita Prasad and Nithin Ramakrishnan
The five-member tribunal of the Permanent Court of Arbitration (PCA) located at the Hague, Netherlands on 21 May this year passed an award in a split decision of three-two, granting immunity to two Italian marines, Massimiliano Latorre and Salvatore Girone, in the famous Enrica Lexie case which was made public on 2 July. It decided that India had no jurisdiction over the marines and should lift all criminal charges. The PCA also said India was entitled to “compensation in connection with loss of life, physical harm, material damage to property and moral harm”. Following this, the Indian government on 3 July 2020 moved to the Supreme Court of India to dispose of all the pending pleas in Indian courts, admittedly accepting the arbitral award.
There is not much that India can do against this award but there are serious implications to accepting it. A quiet acceptance sends a clear message to the international community that India will allow an international body to dictate its criminal jurisdiction, setting a dangerous precedent.
But, let us first recall the incident itself. In 2012, the two Italian marines, onboard the oil tanker Enrica Lexie, shot two Indian fishermen, mistaking them for pirates. India detained the duo, exercising its sovereign right. Diplomatic talks started between the two countries, as both sought jurisdiction over the matter arguing over territorial waters and sovereign immunity. India wanted to pursue criminal proceedings against the marines within its jurisdiction, under the Suppression of Unlawful Acts, 2002 (SUA) and Indian Penal Code, 1860 (IPC). The marines, detained in India, were allowed to visit Italy in 2013. Their government refused to send them back, citing delays and ambiguous behavior of the Indian government. Arbitral proceedings were initiated in 2015 when Italy approached the PCA with a request for provisional measures under the United Nations Convention on the Law of Sea (UNCLOS).
The PCA award directly contradicts the 2013 Supreme Court of India’s ruling in Republic of Italy v. Union of India case, which had said the incident took place within the contiguous zone and over which India was entitled to exercise rights of sovereignty.
Territory is not the only method to exercise jurisdiction. There are many provisions under the Code for Criminal Procedure (CrPC) and the IPC that confer jurisdiction on Indian courts over offences taking place in foreign territory. William Slomanson in his treatise Fundamental Perspectives of International Law explains the basics of criminal jurisdiction in which international factors are involved:
1. Territorial Objective Principle of Jurisdiction: A state can try an offence when the act or omission recognised as a crime in the nation is committed and its effect is felt within the nation, regardless of the place where such act or omission was committed.
2. Passive Personality Principle of Jurisdiction: A state can try a case when the victim of the crime is a citizen, though the crime is committed outside.
3. Protective Principle of Jurisdiction: A criminal act outside the territory can be tried if it affects the security, territorial integrity, and political independence of the state.
The principles highlighted by Slomanson are applicable in the Enrica Lexie dispute. The jurisdiction of India is questionable as the incident happened in the contiguous zone. Even though the incident happened beyond India’s territorial jurisdiction, the state still has a right to protect its nationals as Section 188 of the CrPC states that an offence committed outside India can be dealt in the same way as it would have been if it was committed within India.
The Indian government accepting the award, disregarding these principles, will set up a new usage in India’s exercise of international criminal jurisdiction prejudicial to its sovereign interests. It also jeopardizes the safety and security of the fishermen working in Exclusive Economic Zone who are affected by the maritime activities of Pakistan, Sri Lanka, and China. These states may use the PCA award in future disputes.
The immunity granted by the PCA to acts of marines also raises some important questions. Sovereign immunity is not absolute in nature and does not extend to criminal matters. There are two main categories of officials who enjoy sovereign immunity, according to the United Nations’ International Law Commission Reports on Immunity of State officials from foreign criminal jurisdiction. The first category consists of officials in the highest ranks within the government, who head ministerial departments or administrative bodies. These officials have immunity ratione personae, i.e. immunity flowing from their official position and which covers all their acts, whether private or public. The second group comprises any officials who have no power of decision and who simply carry out decisions taken by higher-ranking officials. They have no immunity by virtue of their rank or position; it is granted only for the acts committed in their official capacity.
The question here is whether officials have acted well within the scope of their official capacity after taking due considerations. This can be determined only on a case-by-case basis by the forum state (the state where the lawsuit is bought) or the courts exercising the jurisdiction, after a fair evaluation of the facts of the case. Here again, accepting the PCA award is detrimental as it may evidence a contrary state practice by which India allows an international forum to determine the question of immunity of the foreign official acting within its jurisdiction.
In short, the plea of the Indian government before the Supreme Court which reportedly accepted the PCA award without any objection is precarious. The plea tends to promote an idea that the criminal jurisdictions of the Indian Courts are susceptible to international judicial forums or organizations. The judicial acceptance will further solidify the position taken by the Indian government. International comity can be expressed in many ways, but certainly not by compromising on one’s sovereignty.