By Aparna Raman

The unnecessary and unexpected loss of civilian lives has always been a cause for great public concern and introspection in the fight against terrorism, both on land and at sea. This is especially the case if it happens despite the best-intended security measures and practices adopted by State actors and their representatives. That is precisely why the February shooting of two unarmed Indian fishermen in the Arabian Sea by two military marines belonging to an Italian Navy Vessel Protection Detachment onboard a commercial Italian vessel (which the Kerala High Court in India has already observed as a “terrorist act”) sparked off a bitter diplomatic row between Italy and India which is now threatening to escalate in the face of the Indian police initiating a criminal enquiry, pressing murder charges under section 302 of the Indian Penal Code (IPC) and then arresting the two marines.[1]

In the aftermath of the incident, both the Italian and Indian governments cited several provisions and limitations of International Law including the United Nations Convention on the Law of the Sea (UNCLOS) (to which both of them are signatories) in order to establish and justify jurisdiction over the investigation and the prosecution of the accused, without coming to any mutual agreement. While the Italians claimed immunity from prosecution on account of the two personnel being part of the Italian state and argued for the release of the ship under Article 97 of the UNCLOS[2], India cited provisions under The Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) Convention 1988 supported by the “passive personality” principle of International Law that irrespective of the location of the ship (whether in international or territorial waters), a crime had been committed against Indian citizens on an Indian boat and hence, India had the jurisdiction to bring the case to trial. The truth of the matter is that the UNCLOS confers jurisdiction on Italy alone while the SUA Convention allows India to claim jurisdiction under Articles 6(1)(a) and 6(2)(b) and Italy to claim jurisdiction under Articles 6(1)(a) and 6(1)(c). Therefore, from a legal perspective, both Italy and India do have concurrent jurisdiction over the marines, but as a purely administrative matter, jurisdiction falls to the country that reaches the alleged perpetrators first, subject to the principle of aut dedere aut judicare (“extradite or prosecute”).

Now, as far as the UNCLOS is concerned, it is absolutely clear that all vessels enjoy the right of innocent passage even in the territorial waters of any country as long as it is peaceful and does not infringe the laws of the land which extend up to 12 nautical miles of territorial waters. That is why while one cannot turn a blind eye to the fact that in recent years commercial vessels have been tormented by Somali pirates who have held the ships along with their crew to ransom (often for months on end), on the other hand, nothing can remotely explain, let alone justify, the killing of the two unarmed fishermen by marines specially trained and deployed as part of anti-piracy measures. Yes, the crime of piracy is a breach of jus cogens (or a peremptory international norm) and large merchant ships need to be aware of the risks involved in sailing in certain waters of the world, but there can certainly be no reason or justification for sudden panic and unprovoked use of force at the first sight of an approaching boat or dinghy.

Moreover, the reason several ships sail closer to the Indian shores is to avail the security cover provided by the proactive patrolling of the Indian Navy and Coast Guard that has helped prevent piracy attacks in the middle of the ocean even at extended ranges from the pirate-infested waters of Somalia. And so, it is indeed ironical to think that these very ships that stick closer to the coast to be safe may, even unintentionally, endanger the safety and lives of the vessels and fishermen in or near Indian waters.

The moot point, however, is not only whether the marines over-reacted given the level of preparedness on board but also whether the captain was responsible for escalating the situation and if so, the extent of his culpability. Per the International Regulations for Preventing Collisions at Sea 1972 (COLREGS) which are the navigation rules set out by the International Maritime Organization (IMO), nothing can exonerate the master or crew of any vessel from the consequences of their negligence to adhere to ordinary seafaring practices.[3] And this incident may well become a classic case study to understand the consequences of the failure of following a sequence of well-established protocols and best management practices in the event of spotting a suspected pirate vessel, especially the ones laid down by the IMO and the maritime industry itself.[4] However, without the master’s trial and deposition in a court of law, it would not be possible to establish the role of the entire crew in not complying with international codes of conduct and to determine the scope of improvement in the level of due diligence and the usage of technology required to deal with a similar scenario in the future. Such a trial, if it happens, will most likely be a persuasive reason for the IMO and the global shipping industry to re-evaluate the quality of its security procedures.

While this tragic episode has put beyond question the urgent need for the international community to take steps to safeguard and ensure that no more innocent lives are sacrificed in the fight against piracy, unsuspecting fishermen across the world also need to be made aware of these new “perils of the sea” they might have to face today in pursuit of their daily livelihood. Having said that, both India and Italy must not allow political differences of opinion in the aftermath of such a tragedy to overshadow what has been and continues to remain a healthy and fruitful bilateral relationship but instead let the law take its own course.

[2] Article 97(3) of the UNCLOS states that in relation to penal jurisdiction in matters of collision or any other incident of navigation, 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.

[3] See Rule 2(a) of the COLREGS 1972 pertaining to general responsibility without any exception

[4] The IMO’s International Convention for the Safety of Life at Sea (SOLAS) adopted in 1974 which came into force in May 1980 and the Best Management Practices (BMPs) for the protection of seafarers from piracy developed by the maritime industry adopted by the IMO via MSC Resolution 324(89) both provide guidelines and standards that a Master and crew of a vessel should follow in the event of a suspected pirate attack.

[Editor's Note: This article was written by Aparna Raman and not Eugene Ang as previously stated. The mistake has since been rectified.]