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Saturday, August 1, 2015

Enrica Lexie killings - Italy goes to International Tribunal for Law of the SEa !!

Who should play the victim – the killed or the killer – this case is presenting newer twists and turns -

... from Neendakara coastal police station in Kollam in February 2012, the Italian marines’ case,  has come a long way – it  is a case of Marines – the Italians,  accused of  killing two fishermen off the Kerala coast.  Unlike some Countries, where ship owners have had to resort to private security forces, Italy had been  assigning military teams to protect its merchant vessels in the Indian Ocean last year after a series of attacks by Somali pirates on Italian ships.  The killings are not disputed – but the place, the jurisdiction of Courts and the laws that would apply.  While India has taken a stand that the killing of innocent fishermen happened in its territorial waters, Italy has been denying and questioning everything related to the incident. 

The vessel  wason voyage  from Singapore to Egypt with a crew of 34 including 19 Indians. It had on board  6 Italian marines from the San Marco Regiment. The 243M LOA Aframax double hulled tanker built in 2008 at Shanghai Waigaogiao had Italy flag.  Fishing is common and fishing trawlers are sighted throughout Indian coasts, Arabic sea off Kerala is no exception.  An ill-fated fishing trawler named St. Antony had left Neendakara in Kerala with a crew of 11 to fish for tuna.  In what is reported to be a mistaken apprehension, the ship showered bullets on the fishing boat killing two fishermen AjeshPinki from Kulachal in Kanyakumari district in Tamil Nadu and Jalestine from Kollam in Kerala on February 15, 2012.  The perpetrators of the crime were the  Italian Guards identified as LatoreMassimiliano and Salvatore Girone.  Lot of drama unfolded with diplomatic and political pressures trying to settle and make it a non-issue.   The marines  were to be arrested, lodged  in jail in Kerala after making some hue and cry initially about the arrangement and food and finally understanding that they are incarcerated and not on any pleasure trip.

The International Tribunal for the Law of the Sea (ITLOS) is an inter-governmental organization created by the mandate of theThird United Nations Conference on the Law of the Sea. It was established by the United Nations Convention on the Law of the Sea;  theConvention entered into force from Nov 1994 established as an international framework for law over "all ocean space, its uses and resources". The tribunal is based in Hamburg, Germany.

Newspaper reports suggest that India will contest the Italian government's decision to the take the matter of two of its marines, accused of killing two Indian fishermen three years ago, to the  international tribunal which is going to hear it in the second week of August.India has decided to oppose the plea when the case comes up for hearing at Hamburg, Germany, in August.   It is stated that Additional Solicitor General PS Narasimha will be representing the Nation and that before ITLOS, it will be contended  that India alone has jurisdiction to try offences within the country and that the tribunal has no jurisdiction.  It will further be contended that Italy has not exhausted all remedies, which is a requirement before invoking the jurisdiction of ITLOS. Finally, India will also contend that there is no compelling circumstance to pass any order for provisional measure.

On 21 July, the Italian Republic submitted a request to the Tribunal for the prescription of provisional measures under article 290, paragraph 5, of the United Nations Convention on the Law of the Sea (“the Convention”) in Enrica Lexis case.   Byan  Order dated 24 July 2015, the President of the Tribunal, Judge Vladimir Golitsyn, fixed 10 August 2015 as the date for the opening of the public hearing in the case. The hearing is expected to last two days. The hearing, which will be presided over by President Golitsyn, will be held in the main courtroom of the Tribunal and is open to the public.  ITLOS web states that unobtrusive audio and video recording of the public sittings is permitted. Filming is subject to special authorization from the Press Office. Photographs (without flash) may be taken for a few minutes at the opening and at the end of the hearings. The hearing will be broadcast live on the website.

The case has seen many turns – the arrested Italians went home for voting in general elections, celebrating Christmas and in between cited failing health….now it is in International [waters] Court.

With regards – S. Sampathkumar

27th July 2015.

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