On Monday, 16 April 2012, I had the pleasure of attending a lecture by Professor Natalino Ronzitti at the Libera Università Internazionale degli Studi Sociali Guido Carli in Rome where he discussed the arrest, prosecution and punishment of pirates. Prof. Ronzitti has taught at universities around the world from Italy, the United Kingdom, the United States and Egypt. He has also served as and advisor to government ministries and published on the issues of piracy, national sovereignty, armed conflict and international law generally. The lecture hit a high point of interest when Prof. Ronzitti discussed the events on the Enrica Lexie, something that has been discussed often on this blog. He argued that Italy should have exclusive jurisdiction over the Italian guards accused of killing the Indian fishermen.
Prof. Ronzitti started by setting out what is meant by “piracy” in international law. By definition, piracy is a crime that is committed on the high seas, meaning not within the territorial sea of any State. That is to say that “piracy” for the purpose of this discussion is the crime iure gentium (international crime), as opposed to any set of acts called “piracy” by the laws of a particular State. Within this context, Prof. Ronzitti set out two necessary criteria for an act to be considered “piracy”: (1) that the events involve at least two ships and; (2) that the would-be piratical acts were committed for private ends. This last criterion, for example, excludes acts that are committed for political ends.
Next the professor turned to the methods available to prosecute and punish piracy. The primary method he identified was the arrest and trial of the alleged pirates by national authorities (a solution acknowledged to be often inconsistent due to varying national laws and practices). He emphasized that only national military ships (and those other clearly identified ships dedicated to the purpose by national authorities) are authorized to stop pirates. Private individuals or vessels are not permitted to go pirate hunting. The right to seize pirates on the high seas includes the limited right to stop vessels that fly under the flag of a State different form the one of the military vessel conducting the stop. In the case of pirates off the Somali coast, the United Nations Security Council has authorized States to conduct piracy suppression actions in Somali national waters and under certain circumstances to pursue the pirates aground in Somalia.
This brought the discussion to the legal methods available to private ships to protect themselves from pirates. Prof. Ronzitti referred to the work of the International Maritime Organization (their website can be found here). In particular he referenced the fact that it is permissible to have armed security on commercial ships to repel pirate attacks. However, these armed personnel are limited to a defensive role and are not permitted to pursue the pirates. He pointed out that France uses its own military to provide security, while Spain employs private guards and Italy (at least legislatively) permits both.
At this point the lecture turned to address the growing dispute between India and Italy over the Enrica Lexie. This is the incident involving the Italian guards on the oil tanker that allegedly fired on, and killed, Indian fishermen whom they mistook for pirates. These two Italian guards are currently in Indian custody awaiting trial. The controversy centers on whether or not India can rightly assert jurisdiction over the case under governing principles of Public International Law. (A more detailed description of the events and the controversy can be found here.)
Prof. Ronzitti started by noting that the events took place on the high seas (admittedly within India’s exclusive economic zone, however, that is still the high seas) and that the facts of the incident are in dispute. However, he wished to point out that the current incident would have been avoided had the Italian vessel not diverted to Kochi. The reason stated for the Lexie going to Kochi was to identify the pirates who had attacked the ship earlier in the day. This of course was a pretext that permitted the Indian authorities to seize the vessel and arrest the two Italian military guards. Had the vessel not diverted to Kochi, there would have been no arrest.
On the issue of jurisdiction over events on the high seas, Prof. Ronzitti discussed three articles of the United Nations Convention on the Law of the Sea (UNCLOS). He first mentioned Article 97 as a cited basis for denying Indian jurisdiction over the events in question. This article provides,
1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. […] 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.
Prof. Ronzitti quickly pointed out that while the provisions of this article refer to “any other incident of navigation”, the real meaning of this phrase is to encompass other collisions that may not be between two ships (such as a vessel colliding with an offshore oil rig). Another article referred to was Article 94, however it too is of little assistance to the Italian case. Prof. Ronzitti then turned to Article 92 which reads in pertinent part,
Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
The professor argued that this article would be a better basis to assert exclusive Italian jurisdiction over the events on the Enrica Lexie. However, he also admitted that it could be argued that the shooting events took place both on the Italian vessel and on the Indian ship thereby establishing jurisdiction under Article 92 for both States. A more complete description of the applicatoin of this “objective” teritorial principle to this case can be found here.
Prof. Ronzitti’s strongest argument for exclusive Italian jurisdiction over the guards accused of killing the Indian fishermen was based on the idea of functional immunity. He emphasized that the Italian guards are members of the Italian military (he noted also that the legislative framework for private Italian guards has not yet been workably put in place). In particular, he pointed out that both national Italian law and United Nations resolutions support the use of armed guards to repel pirates. As agents of national and international policy, he argued, the actions of the Italian military guards should be attributed to Italy, not the guards individually. This would exclude their criminal trial in India. Prof. Ronzitti noted that this kind of function immunity has a basis in customary international law going back to the early 1800’s.
The lecture was graciously organized by Professor Marina Mancini of the Dipartimento di Giurisprudenza at LUISS.
 Prof. Ronzitti made reference to UN Security Council Resolution 1851 of 2008.
 It reads in pertinent part “7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.”
 He specifically referred to the McLeod Case which can be found in, Moore: A digest of international law as embodied in diplomatic discussions, treaties and other international agreements, vol. 2, Washington, Government printing office, 1906 at § 217.