By Adith Charlie
India and Italy have always enjoyed excellent economic and diplomatic relations despite fighting the second world war in opposite camps. The countries have the distinction of being ancient civilizations, but young states. (Italy was unified in 1861 while India gained independence from the British in 1947) Geographically, both boast of having a large peninsula, with a high, relatively young mountain range in the North. Their societies are driven by the consciousness of their antiquity and traditions. A strong bureaucracy, circles of power that are not always so transparent, and a tradition of cautious coalition government are the other parallels that can be drawn. While Italy is the birthplace of the Renaissance, the thoughts from this period echo in Indian writing and traditions across many centuries.
Italy-born Sonia Gandhi, the President of the ruling Congress party in India, is considered to be one of the most powerful politicians globally. The word goes around that if the Indian workers in Italy‚Äôs dairy industry go on strike, the production of Grana Padano, a hard, grainy cheese, will come to a standstill.
Politically and economically, the relations have been have been booming. However, the equilibrium was disturbed in the last 12 months. An unfortunate accident at sea, involving Italian marines‚Äô Massimiliano Latorre and Salvatore Girone, has snowballed into a diplomatic mess thanks to a series of wrong steps and angry rants by politicians and diplomats of both countries.
Though the matter is sub-judice, emotions are running high on both sides, threatening to erode the strength of a historical strong relationship.
In February 2012, unarmed Indian fishermen, Jelestine and Ajeesh Pinku, were shot dead while they were fishing in a mechanised boat in the sea off the coast of Kerala, the southern-most state of India. The ship from which the fishermen were fired was identified as the Enrica Lexie, an Italian Aframax oil-tanker, en-route to Egypt. The Lexie claimed it thought the fishermen were pirates. The Indian Navy apprehended the Enrica Lexie, for flouting the laid-down counter-piracy measures, which resulted in the ship’s armed guards, the two Italian marines, gunning down two Indian fishermen.
Both countries have not been able to agree on the jurisdiction issue. Italy has insisted the shooting happened in international waters and hence the case should be heard by its own courts, as laid down in international maritime guidelines. On the other hand, India claims that the episode unfolded in a region under India‚Äôs economic zone. Hence, India went ahead and detained the marines and initiated judicial proceedings against them.
An extra-judicial proposal was proposed by the Italian Government, which offered to pay Rs 1 crore to the kin of the dead fishermen. Though the families agreed and dropped charges against the fishermen, the Indian judicial system does not acknowledge the concept of blood money. Hence, the case against the marines stands.
Even as the logjam continues, differences in interpretation of international law related to maritime incidents and accidents have divided public opinion on the case. Article 97 of the United Nations Conference on the Law of the Sea (UNCLOS), as quoted by the Italian authorities, states that ‚ÄúNo 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.‚Äù Since the flag state in this case is Italy, Italian law should have preponderance, its diplomats say.
The Indian point of view has been that the aforesaid Article deals with ‚ÄòPenal Jurisdiction in Matters of Collision or any other incident of Navigation’ and hence, is being quoted out of context. In this particular case, neither collision nor other navigational aspects have been indicated. The root cause of the incident was the fear of piracy, something not covered under Article 97.
In a bid to combat piracy, the International Maritime Organization (IMO) adopted a resolution in 1986 on the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The resolution provides for strong action to be taken against persons committing unlawful acts against ships. In the current case, there was no unlawful act committed against the ship by the fishermen, as it was a clear case of mistaken identity.
On the contrary, Article 2 in Annexure III of UNCLOS, Article 2 stipulates certain freedoms that are recognised by the general principles of international law, wherein freedom of fishing is a part of the law. The two men who lost their lives were fisherfolk.
Tensions between the two countries reached a flashpoint recently when Italy reneged on an undertaking it gave to India‚Äôs highest court. In February, the Supreme Court allowed the two marines to travel home for the second time for voting in the Italian elections. (Earlier the Kerala High Court had let the marines fly home for a four-week Christmas break). Italian Ambassador to India, Daniele Mancini had given assurance that the marines would return within the stipulated period. However in March, Italy did a complete U-turn and told the Indian Government that the marines would not come back, as India does not have jurisdiction over the matter.
In effect, Italy broke a sovereign promise made in writing to the Indian judicial system, thereby adding to the diplomatic squabble.
At the receiving end of a scathing attack from the Opposition, the Indian Government warned Italy of ‚Äòdire consequences‚Äô. Consequently, Italy asked its citizens in India to remain cautious. Taking cognizance of the new developments, the Supreme Court forbade the Italian Ambassador from leaving the country. India‚Äôs tactics were seen as a violation the Vienna Convention which safeguards the rights of diplomats in the host country. Even the European Union was pulled into the controversy, but it exhorted the two countries to bilaterally sort the issue.
Finally, Italy bowed down to the mounting pressure and all owed the marines to go back to India on March 21. The move caused tremendous heartburn in the European country as several Italian intellectuals started questioning what they termed as their Government‚Äôs in-efficiency. Foreign Minister Giulio Terzi resigned in protest of his Government’s decision. Predictably, the mood in India was that of jubilation.
However, once the Marines were back, it was Italy‚Äôs turn to accuse India of malpractices. Italy argued that the Indian Government had assured death penalty would not be applied even if the marines were found guilty in the trial. India‚Äôs move of slapping provisions of SUA was seen by Italy as a breach of the sovereign assurance given to it. (SUA has provisions of death penalty). Italy also dialled the Supreme Court to counter the state‚Äôs move of appointing the National Investigation Agency (NIA), which functions as a counter-terrorism law enforcement unit, to further investigate the matter. Few days ago, the Supreme Court upheld NIA‚Äôs jurisdiction to investigate the case, raising the possibility of both men facing the death penalty.
For the record, Italy had abolished capital punishment in its country since 1947. On the other hand, India handed the gallons to two terrorism convicts in the last six months. A common online forum established by The Hindu and La Repubblica, the two leading newspapers in India and Italy, showed that Italians are greatly worried about the death penalty that India allows.
Difference in interpretation of certain terms further complicates matters.
For instance, the Indian Government had said that the Italian marines will be tried by a special court in Delhi. In India, a special court or a fast track court is setup for speedy trial in extremely sensitive cases where justice cannot be delayed.
For Italians, the term “special court” brings back painful memories of the Fascist era where political prisoners, who could not undergo trials by ordinary courts, were sentenced. A trial in a Fascist Special Court resulted in sentences starting from 20 years to death.
If early indications are anything to go by, the diplomatic tensions are adversely impacting the promising trade relations between the two countries. Last year Italian exports to India were down by 10.3 per cent, while imports from India to recession-hit Italy slumped by 21.5 per cent. Not a good sign considering that some 400 Italian firms are present in India while about 50 Indian companies operate in Italy.
Several questions persist over the future of India-Italy relations. If the marines are pronounced guilty will they be given capital punishment? If yes, will the Italian executive request the President of India to intervene use the special powers vested in his office to pardon the marines? If everything fails, Italy may take the dispute to the International Tribunal for the Law of the Sea in Hamburg or the International Court of Justice in The Hague, given that it has been disputing India‚Äôs jurisdiction in the matter from day one. That will make a bilateral issue an international spectacle, much to the detriment of both sides.
Adith Charlie is a contributor for USAK Center for Asia-Pacific Studies