Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti

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.[1]

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.[2] 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.[3]

The lecture was graciously organized by Professor Marina Mancini of the Dipartimento di Giurisprudenza at LUISS.


[1] Prof. Ronzitti made reference to UN Security Council Resolution 1851 of 2008.

[2] 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.”

[3] 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.

Advertisements

17 Comments

Filed under News and Events, Public International Law

17 responses to “Il contrasto alla pirateria marittima: le sfide attuali – A Lecture on Piracy by Prof. Ronzitti

  1. Thanks for posting the very informative article. Presenting a different perspective from India.
    THE LONG ARM OF INDIAN LAW – ENRICA LEXIE INCIDENT AND JURISDICTION OF INDIAN COURTS TO TRY THE ITALIAN MARINES.

    (Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)

    Does the arm of Indian law stop short at 12 nautical miles from Indian coast or is it long and capable enough of being stretched beyond that limit to further extents of her maritime zones so as to deal with perpetrators of crime within those zones? This is one among the many pivotal questions thrown up by the recent incident involving the Italian Vessel ENRICA LEXIE.

    ENRICA LEXIE continues to be anchored in Indian territorial waters. Two Italian marines who were on duty on board the vessel are presently in judicial custody charged with the crime of shooting to death two Indian fishermen. They have been charged for murder under sec.302 of the Indian Penal Code.

    There is tremendous public sympathy in India for the two fishermen who were shot to death.One among the diseased is survived by two minor girls, his sisters. Their parents are already dead and now their only brother has been shot dead. The other fisherman’s family consists of a widow who has to bring up her two young children all by herself. Both families belong to economically weaker sections of Indian society and deserves maximum sympathy.

    In Italy too there is great concern regarding the fate of the two marines who are now lodged in Indian prison awaiting a lengthy murder trial. A long drawn and onerous criminal trial, which could be a punishment in itself, awaits them, if the Courts in India turns down their preliminary objection regarding jurisdiction of Indian Courts to try them. Families of the marines in Italy have genuine reason to be concerned and the Italian Government is trying in earnest to resolve the quagmire.

    ENRICA LEXIE incident catches the attention of a maritime lawyers not only from the above humanitarian concerns which vexes every lawyer, but also because it throws open a number of questions within and outside the realm of International Law especially that branch of it which we term as the Law of the Sea.

    Though the questions regarding the scope and extent of coastal state’s jurisdiction over adjoining waters have engaged attention of maritime lawyers since decades and was fairly thought to be settled, 21st century problems demand 21st century solutions.

    Piracy, once thought to be dead and buried thus receiving a cursory and half baked attention even in the third UNCLOS, have spread it evil head so wide that world has to sit up and deliberate, lest incidents like ENRICA LEXIE are repeated.

    21st century piracy, though said to be originating from Somali Coast but which is perceived of being controlled from world business capitals, is even threatening the life of innocent fishermen from tiny fishing hamlets along Indian coast where they have been engaged in small time fishing since time immemorial.

    Bravado exhibited by US, Italian and even Indian navy so far in and around the Somali Coast, Arabian Sea and some areas of Indian Ocean in the pretext of containing piracy, but which many a times lead to shedding innocent blood are no more viable solutions to this deeper problem. India and Italy have learnt this the tough way with ENRICA LEXIE incident. Others might learn it later, albeit slowly but in a more gruesome way. This has to be avoided.

    Since the incident is developing day by day let us save the larger issues involved in ENRICA LEXIE incident for discussion later and confine ourselves to the limited issue of the jurisdictional power or the lack of it, of the Indian Courts to try the Italian Marines alleged to be involved in the incident.

    The Italian marines and the vessel are undoubtedly entitled to a fair trial and hearing. They should never be condemned unheard. Their legal and factual contentions deserve to be considered with due merit and they ought to be presumed innocent until found otherwise by a competent court of law. If they have a case that they are not governed by Indian law, that contention too deserves to be considered with due respect and if it is found that Indian law is not applicable they ought to be handed over to Italy for being tried under their law.

    The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE was specifically addressed before the Court by the relatives of the dead fishermen.

    They had started by pointing to Sec.3 of the Indian Penal Code and then to two specific statutes that are in force in India. The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).

    Though there exists some cloud over the exact distance from Indian base lines to the marine area were the shooting incident took place, even the State Police seems to agree that the same happened beyond the 12 nautical mile territorial waters of India but within the Indian Contiguous Zone and Exclusive Economic Zone.

    That being the factual position, one is prone to jump to the conclusion that since the incident happened beyond Indian Territorial Waters neither the Indian law nor Indian courts have jurisdiction and ENRICA LEXIE being registered in Italy, the flag state law ie., Italian Law ought to apply in view of the principles of International Law of the Sea as settled under the UNCLOS .

    But a conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines. Let us examine the provisions closely.

    Sec. 3 of the Indian Penal Code reads as follows:

    Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

    Section 3 of the Penal Code reproduced above has the following attributes:

    (a) It applies to all persons including foreigners and is not confined to citizens of India.

    (b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.

    (c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.

    (d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

    Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.

    The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.

    Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:

    Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-

    Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

    The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.

    In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.

    The Captain of the Vessel Enrica Lexie and the two Italian Marines could also be liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.

    The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.

    Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:

    Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-

    (1) Whoever unlawfully and intentionally-

    (a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;

    (b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;

    (c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;

    Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:

    (g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-

    (i) causes death to any person shall be punished with death;

    (ii) ……;

    (iii) ……;

    (iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and

    (v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.

    (emphasis supplied)

    Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:

    Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.

    Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-

    (a) …;

    (b) …; or

    (c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India.

    Take special note of the words “is on a …ship in relation to which such offence is committed when it enters the territorial waters” as also the words “or is found in India” in Sec. 3 (8) (c). In the case of ENRICA LEXIE the Italian marines were on ENRICA LEXIE when she entered Indian Territorial waters and moreover the Marines and the Captain are still in India. So the Act squarely applies to the facts of the case.

    Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. The said provision which shifts the burden of proof on to the accused could make the criminal trial a very arduous one for the accused.

    In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.

    However as on date the Government of India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused.

    Even after the lapse of more than one month after the incident and number of rounds of legal battles in the Courts, the investigating agencies have so far chosen not to invoke SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849. They have charged the marines only under sec. 302 read with Sec. 34 of the Indian Penal Code (I.P.C.). It is trite law settled by innumerable precedents including those from the Supreme Court of India that I.P.C. and the Cr.P.C. have no applicability beyond Indian territorial waters extending to 12 nautical miles except under circumstances falling within Sec. 4 of IPC and Sec.188 of Cr.P.C. That it would be onerous to prove the existence of the said circumstances in ENRICA LEXIE incident is also evident. Thus charging the marines under the IPC and Cr.P.C. without invoking the SUA Act 2002 nor the empowering provisions under the Admiralty Offences (Colonial) Act, 1849 could lead to a situation where the Courts in India will after a point be compelled to acquit the accused marines.

    By virtue of the norms put in place by the Admiralty Offences (Colonial) Act, 1849 and more recently by the enactment of the SUA Act 2002, Indian law does not invariably freeze, stultify or become ineffective upon reaching the outer limits of the territorial waters i.e., immediately upon reaching the outer limits of the 12 nautical mile territorial waters. The Courts and authorities in India are empowered, capable and competent under the said statutes to apprehend, try and punish perpetrators of crime as far as Indian Exclusive Economic Zone which is 200 nautical miles from the Base lines.

    The 21st century world and the issues endemic to our times demand that Indian law needs to have the said extra territorial operation and vibrancy so as to retain the basic quality of law as a purposive enterprise.

  2. Pingback: India v. Italy Part Four: Functional Immunity | The {New} International Law

  3. The author says:-Sec. 3 of the Indian Penal Code reads as follows:

    Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

    Section 3 of the Penal Code reproduced above has the following attributes:

    (a) It applies to all persons including foreigners and is not confined to citizens of India.

    (b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.

    (c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.

    (d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

    Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.

    If this is the argument for India to try this case, any crime anywhere done should be liable to be tried in India. Murder is a crime and if anyone commits murder he can be tried and punished in India. So murder anywhere comes under Indian law. In India if an Italian murders an English man the case will be tried in India. By that logic if an Italian or for that matter anyone murders an Englishman or anyone of any country anywhere should come under purview of Indian courts.
    It is a wrong interpretation of Section 3 of IPC. It can mean only if an Indian citizen commits a crime anywhere in the world can be tried and punished by an Indian court.
    There also there is a doubt. If an Indian is tried and convicted for an offense say in US, after he returns to India can he once again tried and punished? This section is meant for any Indian citizen who commits an offense abroad and escape to India. If he comes to India or wherever India can lay its hand on him he can be punished. Not formaking India as the Universal Court of justice.

    • Thank you very much for your comment. I would like to point out two things, one regarding international law and the other regarding Indian law (of which I am of course much less competent to comment).

      The first comment regards the scope of your analysis. It may be true that the IPC by its terms can apply to anyone, anywhere in the world. The real question is not the scope of the IPC according to the IPC, but the legal authority of India to criminalize, try and punish particular activity in the first place. If, as some argue, the provisions of the IPC that allow its extension to acts abroad are ultra vires, then they should not be enforce notwithstanding any internal validity. That is to say, if international law prohibits the exercise of Indian jurisdiction in a given case, then the text of the IPC and its face value application to any act abroad is invalid.

      This should be controversially correct. For example, in this case it would allow India to prosecute the Italian guards as their acts took place “anywhere”. The same principle would allow another State (say Italy) to pass laws governing acts in India (as this too is anywhere) without any real connection to those acts. A rule that allowed any State to pass laws that are valid anywhere in the world would create jurisdiction chaos and likely lead to conflict between the States as they enforced laws governing activity taking place entirely within the territory of other States and lacking any connection to the enforcing power. Such a universal rule would create more problems than it would resolve in a case such as this.

      My second comment goes to your reference to double jeopardy for crimes committed abroad. I recently looked into this subject in India and found the following information. The Constitution of India under article 20(3) only provides for autrefois convict. Thus in India if a person is acquitted once he can be tried again. But if a person is prosecuted and punished then he can’t be prosecuted again. Under case law, the offense must be identical legal qualification for a claim of double jeopardy to lie and prevent the subsequent prosecution. However the protection does not appear to apply transnationally, at least in part due to the requirement that the crime have the same legal qualification. This is the long way of saying, that if someone is convicted of a crime abroad, there is no reason to believe that the protection of the Indian constitution will bar a second trial. There is of course the issue of local procedural laws in the different Indian states. They, however, would be free to change their laws if they do provide for preclusion after a prior trial abroad.

      I hope this is useful, and please, if you have an alternate understanding of the Indian preclusion doctrines, I would love to hear it.

  4. You wrote : “The first comment regards the scope of your analysis. It may be true that the IPC by its terms can apply to anyone, anywhere in the world. The real question is not the scope of the IPC according to the IPC, but the legal authority of India to criminalize, try and punish particular activity in the first place. If, as some argue, the provisions of the IPC that allow its extension to acts abroad are ultra vires, then they should not be enforce notwithstanding any internal validity. That is to say, if international law prohibits the exercise of Indian jurisdiction in a given case, then the text of the IPC and its face value application to any act abroad is invalid.”

    I think that I could not make myself clear. What I wanted to convey was that ‘the interpretation that IPC applies to all is WRONG. It applies to all while they are in Indian territory. Once anyone leave Indian territory, it can apply only to Indian citizens. Otherwise it will cause conflict of laws. So it is WRONG to say that the Italian Marines are covered by IPC when they stood on the ship Enrica Lexie.
    I wrote the other part to illustrate the absurdity of assuming that IPC covers all irrespective of their nationality. It cannot.
    Incidentally I am not a student of law. This Enrica Lexie case interested me and I was checking laws with respect to that only. I told about double punishment as I got some idea regarding that from the article ‘Conflicts in Criminal Laws’ by Edward Stimson. In my layman’s opinion the verdict in Queen v.Keyn was the most appropriate. Also Lotus case has made a very BAD precedence.
    To me the crime in this case was shooting. Death was the result of that. Cause is more important. When the shooting occurred the Marines were very much in Italian territory and hence the trial should be done by an Italian court. Even if no death has occurred shooting at unarmed persons is a crime. In that case naturally the case would have been dealt by Italy or ought to have been dealt by Italy. So when there was an effect due to the shooting also it should be dealt by Italy.
    I am writing all this because you were good enough to reply to my comment.
    Regards,
    V.K.Guptan gptnvmbr-nampad@yahoo.com

    • Please excuse me for misunderstanding your comment. I too agree that the universal application of any State’s penal code would be an error of extreme proportions. Unfortunately, it seems we will have to agree to disagree in this particular case. Crimes as a legal construct are comprised of more than the action that causes a particular result. The result of the action is an intricate part of the crime without which the crime is not committed. It cannot be murder without a death caused by an intentional act. Therefore, I would argue, a crime occurs wherever the action and its result occur. This is not to judge which jurisdiction would be best to try any criminal case. This is the better rule for jurisdiction because the contrary rule would allow one State to legalize cross border killings (one might think of the former situation in Berlin) thereby preventing the victim State from criminalizing the acts and ever punishing them should the shooter enter that State’s territory. This would be because the victim State is not capable of criminalizing through its laws an action that took place abroad even though it was directed at and had its result in that State. This would likely also lead to conflict that could otherwise be avoid.

      Thank you again for your comments; this has been a very interesting conversation.

  5. Thank you for the reply.

    I cannot refute your argument that victim is the affected party and hence should have the upper hand in the proceedings. Offender’s side will not be having much of an interest .In practical terms the offenders side will not have much interest in the whole affair. But how to get the offender within the authority of the victim’s state. In this case Indian authorities used some subterfuge to get them in their hand. In the case of the Cyprus ship Virgo with Russian crew, the ship could be detained in Canada because the ship unaware of the danger awaited there docked in Canadian waters. Same case happened to Lotus also. If they had not gone to Constantinople things would have been different. So to get the offender to the victim’s country some rough work will have to be done. From the way nations behave, will extradition work properly. Here in India, the gangster Abu Salem is enjoying the Spanish climate. The other one Dawood Ibrahim is living happily in Pakistan without being molested. These people are not citizens of those countries and even then they are not deporting. So what will be the plight of their own citizen who has committed a crime? Will any country deport them? I think it is a very complicated issue and there is no simple solution.
    What my common man’s mind say is that there should be courts which deals with such crimes where two or more nations are involved. Every country can have such courts and the judges should be from some other country. It can work as part of their respective Superior courts with judges from other countries. Then establishment charges will be less. This is just my ‘foolish’ idea.
    Thank you once again for responding to my mail.
    Regards,
    V.K.Guptan gptnvmbr-nampad@yahoo.com

    • The pleasure was really all mine. The views of a non-attorney are always welcome, at least as far as I am concerned. Those who have not trained in law will see those things that an attorney has learned not to see.

      • I am very much obliged to you. So far I could not get any reply to my idle doubts from an attorney. Whosoever reply were equally ignorant persons like me.
        Can I trouble for an answer for these two questions.
        1. When a ship is berthed in port is it under the full control of the host country? If one crew member kills another who will be the person to arrest the culprit? Is the captain of the ship or the police of the host country? The whole action was very much within the ship and the crew are citizen of the ship’s flag country.
        2. If the same thing happened when the ship was in Territorial waters making an innocent navigation?
        Do the ship looses the whole authority of the flag under which it sails when it sails into territorial waters of another country?
        If you can give reference available in net it will be fine. If there is any doubt of which country’s law it is what law exists in England. Somehow I always feel that is the mother of all laws.
        With Best Regards,
        V.K.Guptan gptnvmbr-nampad@yahoo.com

      • The best reference is to look at the United Nations Treaty on the Law of the Sea (UNCLOS) which address most if not all of your questions. you can find a copy here: http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.html

  6. Thank you .It is very nice of you to reply. Guptan

  7. I was thinking I am done with this. Now some other things turned up in this Enrica Lexie affair and wanted to know what you think of them.
    1. One learned and honourable judge has ‘observed’ that this alleged shooting was an act of terrorism. He did not commit it but implied in a verbal answer to the counsel representing the Italian Marines. Would do you say it is an act of terrorism? Is it not stretching the SUA Act beyond the limits?

    2. In the case of Virgo the Cyprus registered ship with Russian crew which collided with an American trawler and sank it killing three fishermen and detained by Canada—-Canadian Government released the ship within 10 days when the replacement crew and Captain came from Russia. The Captain and the crew who were on duty at the time of collision were released in a weeks time with instructions to remain in Canada till the trial was over.
    In the case of Enrica Lexie the ship was released after 80 days or so after protracted legal hassles with the request going from the lowest court to the highest court and back and forth. The investigations of the ship was over long back and the police had removed the guns which could have been used for crime been removed and sent to forensic tests. The alleged culprits were released on bail again with too much protests from the Government of Kerala side and only after it reached the Supreme Court and that too such stringent conditions after 90 days in custody.
    When a sovereign nation Italy guarantees the to present the Marines for trial was this much hassles necessary? In what way the Marines could have tampered with the investigations.
    3.In a case like this is it not proper to have a joint investigation? Even for the forensic tests of the gun the Italian experts were just allowed what Indian experts were doing and no permission to suggest any modification. Should not the Italians also should have been involved in the investigation.
    Hope I am not bothering you with my silly doubts. I am 74 years old and have nothing much to do. You can jolly well not answer and in that case I will not pester you any more

    • I am more than happy to discuss these issues, I too find them quite interesting. Unfortunately, your questions focus a great deal on internal Indian law for which I am not the best person to ask. For example, the SUA act is really beyond my competence. The same can be said for why the Lexie was held for so long and the inclusion of the Italians in the investigation. My guess, as far as the investigation goes, is that the Italians were kept at arms length because the investigating officials did not want conflicting results. Whether this was due to mistrust or for some other less reputable reason, I am not in a possition to say. I know this is a very meager response, but I hope it address your questions.
      All the best,
      -Joseph

      • Thank you Mr.Joseph. When I asked those questions I knew it was not a question of law but of Indian politics. I got my answer.
        By the way, I went to UNCLOS and had a quick look at the points I asked. I got as regards to territorial water. As for what happens if the ship is berthed in harbour I could not get. But that is alright.
        With Best Regards,
        V.K.Guptan gptnvmbr-nampad@yahoo.com

  8. Hello Mr.Joseph, I am not sure but I think that I had posted on doubt and it is not there now. I shall ask it in another way.
    I read a case about one man being clubbed to death by a number of people. On post mortem it was found that the death occurred due to a blow on the head by sharp iron instrument. Only one of the assailants was wielding that and hence he was punished for the murder.
    In the case of Enrica Lexie shots were fired allegedly by the two marines at the two fishermen. Can they be punished if it is NOT known which bullets killed them and from whose guns they were shot. If the killer bullets were fired by the same person, how the other person who has fired but did not cause any harm can be punished for murder?
    With Best Regards,
    V.K.Guptan gptnvmbr-nampad@yahoo.com

  9. if dumping of waste has been done at a distance of 30 nautical miles from indian coast can the ship which dumped waste be liable under indian jurisdiction

  10. Fatema

    Hello,
    i am a university student, and i’ve been asked to give my legal opinion on this case, which i know nothing about, so if anyone could help me i will be very thankful !!
    this is my email : Fatema.3@live.com

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s