Im­mu­nity of marines who shot In­di­ans ques­tion­able

The Asian Age - - Edit -

The ver­dict of an ad hoc tri­bunal of the Hague-based Per­ma­nent Court of Ar­bi­tra­tion (PCA) that In­dia has no ju­ris­dic­tion to de­cide the case re­lat­ing to the killing of two In­dian fish­er­men off Ker­ala coast by two Ital­ian marines on board a pri­vate oil tanker is re­gret­table. The tri­bunal, con­sti­tuted to set­tle dis­putes re­lated to the United Na­tions Con­ven­tion for the Law of the Sea (UNCLOS), re­jected In­dia’s con­tention that Mas­si­m­il­iano La­torre and Sal­va­tore Girone, ac­cused of shoot­ing and killing Ajeesh Pinky and Valen­tine in their boat St Antony on Fe­bru­ary 15, 2012, were not en­gaged in gov­ern­ment ser­vice and hence can­not claim the priv­i­lege avail­able to ser­vice per­son­nel. In­stead, it ac­cepted the Ital­ian plea that the duo en­joyed im­mu­nity avail­able to “state of­fi­cials” and are ex­empted from the ju­ris­dic­tion of the In­dian courts.

The five-mem­ber tri­bunal com­pris­ing ju­rists from Rus­sia, Ja­maica and South Korea, apart from one each from In­dia and Italy, by a ma­jor­ity vote also re­jected In­dia’s claims on the rights of a coastal state over its ex­clu­sive eco­nomic zone. The tri­bunal, how­ever, ruled that the marines vi­o­lated the pro­to­cols un­der UNCLOS, and hence must stand trial in Italy. As per the or­der, In­dia is, how­ever, en­ti­tled to pay­ment of com­pen­sa­tion in con­nec­tion with the loss of life and ma­te­rial dam­age to prop­erty and di­rected the two coun­tries to con­sult with each other on the amount of com­pen­sa­tion.

The im­me­di­ate im­pact of the ver­dict is that the Supreme Court of In­dia, which had sent the two marines home on bail, can­not pro­ceed with the le­gal process in a case re­lated to the killing of two In­dian cit­i­zens as per In­dian laws. The Na­tional In­ves­ti­ga­tion Agency has already slapped charges against the two Ital­ians un­der sec­tions of the In­dian Pe­nal Code re­lated to mur­der, at­tempt to mur­der, mis­chief and com­mon in­tent. The court had ear­lier stayed the pro­ceed­ings as per an or­der of the ITLOS (In­ter­na­tional Tri­bunal for the Law of the Sea) in 2015.

It is a trav­esty of jus­tice if of­fi­cials who are on se­cu­rity ser­vice on pri­vate en­ter­prises are given state im­mu­nity but it is ev­i­dent that In­dia has been un­suc­cess­ful in con­vinc­ing the tri­bunal about it. This is im­por­tant be­cause UNCLOS speaks of im­mu­nity in case of war­ships and gov­ern­ment-con­trolled ves­sels.

It is per­plex­ing that the Gov­ern­ment of In­dia chose to keep se­cret the or­der, which was is­sued on May 21 this year, de­spite an or­der of the Supreme Court that the de­ci­sions of the tri­bunal be com­mu­ni­cated to it and the af­fected par­ties with­out de­lay. The min­istry of ex­ter­nal af­fairs chose to com­ment on it only when the tri­bunal on its own is­sued a state­ment giv­ing de­tails of the or­der. Set­backs in in­ter­na­tional tri­bunals are not un­com­mon but attempts to keep them se­cret need an ex­pla­na­tion from the gov­ern­ment.

What is left to the gov­ern­ment is to en­sure that the two marines un­dergo trial as per the or­der of the tri­bunal and the fam­i­lies of the in­no­cent vic­tim get a de­cent com­pen­sa­tion pack­age. This is the least it can do to en­sure jus­tice for two slain In­dian cit­i­zens.

It is per­plex­ing that the Gov­ern­ment of In­dia chose to keep se­cret the or­der, is­sued on May 21, de­spite an or­der of the Supreme Court that the de­ci­sions of the tri­bunal be com­mu­ni­cated to it and the af­fected par­ties with­out de­lay

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