Jurisdictional Issues in Maritime Law
Sandeep Menon Nandakumar, Lecturer, School of Legal Studies, CUSAT
The distasteful incident of Enrica Lexie, where two Indian fishermen were shot and killed by the Italian marines on the ground of alleged piracy attack, worsened the existing uncertainties and ambiguities regarding jurisdiction in maritime matters. This incident made the courts to consider two main issues namely;
1) Whether the Italian marines are liable to be prosecuted under the Indian laws for the alleged killing of Indian fishermen?
2) If yes, is it the state of Kerala or the Union of India, which has the jurisdiction in the matter?
This paper is an attempt to examine the jurisdictional issues connected with maritime law especially in relation to the Enrica Lexie incident on the basis of various national laws and international principles.
Employment of Armed personnel and the rights of the coastal state
It has been specifically stated in the submission by Italy, before the Maritime Safety Committee on Safety issues related to the use of armed personnel on board ships in the high risk area during the 90th session ((Agenda item 20; MSC 90/20/3, 22 February 2012))that the Italian Administration has allowed the use of Military Teams of Protection of the Italian Navy (NMP) on board Italian merchant ships and fishing vessels, sailing in high risk areas following the approval of the revised interim recommendations for flag States regarding the use of privately contracted armed security personnel on board ships in the high risk areas ((Draft Msc Circular Guidance To Port State Control Officers On Life-Saving Appliance Arrangements On Board Italian Ships Due To The Additional Security Personnel Engaged For A Single Voyage Through The Areas At High Risk Of Piracy Attacks; MSC 90/20/3 Idem. Safety issues related to the use of armed personnel on board ships in the high risk area. Submitted by Italy)). It is submitted that if the decision to employ armed personnel was in pursuance of the revised interim recommendations, they ought to have fulfilled the other conditions stipulated under the same revised recommendations.
In relation to deployment of Armed Guards, certain submissions have been submitted by India before the Maritime Safety Committee in its 90th session vide MSC 90/20/16 dated 27 March 2012 ((Piracy And Armed Robbery Against Ships – Armed security personnel on board ships Comments on MSC 90/20/5 (Secretariat), Submitted by India)). They are the follows:
- when privately contracted armed security personnel (PCASP) or members of armed forces are deployed on board merchant ships, the command of the vessel, for both security and safety purposes, should only be with the master of the vessel;
- there should be verifiable linkages between the flag State, the private maritime security company and the PCASP when PCASP are deployed;
- ships carrying armed security guards should have the permission/clearance from the flag State for carriage of specific personnel and the firearms and ammunition on board; and
- ships carrying armed security guards should report the details of on board armed security guards to the coastal State while they are within the limits of the exclusive economic zone of the concerned coastal State.
It should be noted that the discussion on these by India are specifically because of the Enrica Lexie incident. This has been stated by India along with the above-mentioned submissions ((According to India, in a recent incident on the Indian coast, armed security guards mistook a fishing boat in the vicinity of their ship to be a pirate boat and fired upon the boat, killing two fishermen.)).
The Italian regulation on the use of armed security personnel
The Supreme Court judgment on Republic of Italy and ors v. Union of India and ors ((Republic of Italy and ors v. Union of India and ors, (2013) 4 SCC 721))starts by stating that the marines were deployed as per an agreement entered into between the Ministry of Defence – Naval Staff and Italian Shipowners’ Confederation pursuant to the Law Decree No.107/2011 which was converted into Italian law No.130 of 2nd August 2011. Article 5 of the same legislation authorises deployment of military navy contingents on Italian vessels to counter piracy. It allows deploying of armed guards, governmental or private contractors, in case of unavailability of governmental ones on board Italian flagged vessels.
In this context, the Regulation on the Employment of contractors on board the Italian flagged ships sailing in International Waters under piracy risk was issued on 29th March 2013 ((http://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2013-03-29&atto.codiceRedazionale=13G00072&elenco30giorni=true (last visited July 6, 2013).)). It came into force on 13th April 2013 and it integrates the piracy measures adopted by Law Decree No.107/2011. Article 5(2) (d) of the said Regulation limits the use of weapons to the case of the exercise of right to self-defense under Article 52 of the Code of criminal procedure. There is absolutely no mentioning on the use of minimal force in the said regulations and there is no reference made to the The Guidance on Rules for the Use of Force (RUF) by Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV) issued by BIMCO ((The Guidance on Rules for the Use of Force (RUF) by Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV) issued by BIMCO is detailed out in the latter part of this article under the heading “Reasonable use of force”.)). The GUARDCON which is a model contract for the employment of security guards on vessels provides under Section 4(c) that the security personnel shall always have the sole responsibility for any decision taken by him for the use of any force, including targeting and weapon discharge, always in accordance with the Rules for the use of Force and applicable national law ((For a better understanding on GUARDCON, See https://www.bimco.org/Chartering/Documents/Security/~/media/Chartering/Document_Samples/Sundry_Other_Forms/Sample_Copy_GUARDCON__04_01_2013.ashx (last visited July 16, 2013); it has also been specifically stated that in the event of any actual, perceived or threatened act of piracy and/or violent robbery and/or capture or seizure by Third parties, the Team leader (of the security personnel) shall advice the Master or (in the Master’s absence) the Officer of the Watch that he intends to invoke the Rules for the Use of Force. It also specially states that the Master retains the authority to order the security personnel to cease firing under all circumstances.)). It seems that the latter part of the said section which talks about following the Rules for the use of Force has not been taken into consideration in the said Regulation. It is said, “the effects of the ISM Code ((International Safety Management Code, 2010; For a detailed understanding, see http://www.imo.org/OurWork/HumanElement/SafetyManagement/Pages/ISMCode.aspx ; What the regulation gives importance to can be clearly understood from clause 2 to Article 4
which talks about the characteristics of the vessels for the performance of services protection
wherein it is stated that, merchant ships must be prepared for the storage of weapons for the performance of protection services and be equipped with special cabinets for custody of the weapons with the characteristics specified in Article 6 paragraph 3 of this Decree[1]. The object behind his regulation is clear from sub section (2) to Article 6 as well which provides that the security guards, in the performance of security services and only within the limits of international waters in the areas at risk of piracy, may use the common firearms, as well as those ship equipment. In case of use of the weapons held regularly by the same security guards, applies the current legislation on detention, port, import and export of common firearms.)), the Risk Management Procedures and the Best Management Practices for Protection, which any shipowner has to comply with, do not seem to be considered by the Regulation ((Seehttp://www.skuld.com/Documents/Topics/Voyage_and_Port_Risks/Piracy/on%20the%20wave%202013%20-%201%20English%20version.pdf (last visited July 10, 2013).)).”
The Best Management Practices
The Best Management Practices for Protection against Somalia Based Piracy (Version 4 – August 2011) which provides for Suggested Planning and Operational Practices for Ship Operators and Masters of Ships Transiting the High Risk Area states that the measures to protect ship described in BMP are the most basic effective solutions but it does not prevent the owners from considering measures beyond the scope of BMP even if it is related to providing additional equipments or manpower so as to counter a piracy attack ((The full text is available at http://www.liscr.com/liscr/Portals/0/BMP4.pdf (last visited July 29, 2013).)). It is true that BMP suggests only the best management practices and it does not detract the master of the ship from his overriding authority to protect the ship and its crew. However, whether other such overriding authority was warranted in this specific case of Enrica Lexie is the question that has to be answered and it should be answered in the negative after having perused through facts of the case. A clear reading of BMP suggests that it is only self-defensive measures that need to be employed during approach stage and other measures short of murdering that needs to be employed during the attack stage ((R. 9.3 Attack stage: Reconfirm that all ship’s personnel are in a position of safety. As the pirates close in on the vessel, Masters should commence small alterations of helm whilst maintaining speed to deter skiffs from lying alongside the vessel in preparation for a boarding attempt. These manoeuvres will create additional wash to impede the operation of the skiffs. Substantial amounts of helm are not recommended, as these are likely to significantly reduce a vessel’s speed.)).
Other Guidelines
Moreover, it should also be noted that the IMO’s Revised Interim Guidance to Shipowners, Ship Operators, and Shipmasters on the use of Privately Contracted Armed Security Personnel on Board Ships in the High Risk Area (MSC.1/Circ.1405/Rev.1 dated 16 September 2011) prohibits the use of unnecessary force than is required in a case of an attack on the ship ((See http://www.imo.org/MediaCentre/HotTopics/piracy/Documents/1405-rev-1.pdf (last visited July 15, 2013).)). According to Rule 3.5 which lays down the rules for the use of force “it is essential that all Privately Contracted Armed Security Personnel (PCASP) have a complete understanding of the rules for the use of force as agreed between shipowner, PMSC and Master and fully comply with them and they should be fully aware that their primary function is the prevention of boarding using the minimal force necessary to do so.” The rule specifically states that PMSC should require their personnel to take all reasonable steps to avoid the use of force and it should not exceed what is necessary and should be proportionate to the threat and appropriate to the situation. The interesting fact is that the rule is clear about the fact that PMSC should require that their personnel should not use firearms against persons and it can be allowed only in cases of self defence or defence of others against the imminent threat of death or serious injury. It is submitted that there is no proof to show that there existed imminent threat of piracy for the Italian marines to open fire shoot down the Indian fishermen ((See also The IMO’s Interim Guidance To Private Maritime Security Companies Providing Privately Contracted Armed Security Personnel On Board Ships in The High Risk Area issued vide circular MSC.1/Circ.1443 dated 25 May 2012)).
The Guidance to Ship Owners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery against Ships issued by International Maritime Organization via Circular MSC.1/Circ.1334 dated 23 June 2009 ((Available at http://www.imo.org/OurWork/Security/PiracyArmedRobbery/Guidance/Documents/MSC.1-Circ.1334.pdf (last visited July 2, 2013).))allow the use of unarmed security personnel so as to provide security advice and use of privately contracted armed security personnel. Though the use of privately contracted armed security personnel on board merchant ships and fishing vessels has been left as a matter for the flag State to determine in consultation with shipowners, operators and companies, it specifically states that if armed security personnel are allowed on board, the master, shipowner, operator and company should take into account the possible escalation of violence and other risks. It is true that the privately contracted armed personnel may be empowered under the laws of the flag state to use firearms so as to prevent piracy or other maritime crimes but whenever a ship is in transit it is not just the flag state jurisdiction that comes into action. Due regard should be given to the port/coastal state’s jurisdiction as well.
Reasonable use of force
The Guidance on Rules For the Use of Force (RUF) by Privately Contracted Armed Security Personnel (PCASP) in Defence of a Merchant Vessel (MV) issued by BIMCO specifically states that RUF should be in accordance not just with the laws of flag state but should also be in accordance with the coastal state laws ((http://www.ukpandi.com/fileadmin/uploads/ukpi/Latest_Publications/Circulars/2012/BIMCO%20Guidance%20on%20the%20Rules%20for%20the%20Use%20of%20Force.pdf (last visited July 18, 2013).)). The RUF should be consistent with the use of force only being used when essential and not otherwise. It specifically states that even when force has to be used, minimum levels of the same should be used. The guidance also mentions that RUF should contain guidance to the effect that use of force should be proportionate and appropriate to the situation, should not exceed what is strictly necessary and should take all reasonable steps to avoid the use of lethal force.
The basic principle as suggested by this guideline is an attempt towards non-violent means primarily in case of an attack and it also gives some examples of the same. The matter of Enrica Lexie does not highlight the use of any non-violent means first and that they resorted to lethal means only as a measure of last resort. Rule 7(g) of the guideline specifically states that lethal force should be used only as a last resort and opening of fire may be resorted to only when the attackers have failed to heed warning shots.
In this context, it is submitted that regulations relating to deployment of armed forces and carrying of firearms can be stipulated by the flag state but once the vessel is within the jurisdiction of the coastal state, it is bound to observe the national laws of the coastal state ((Andrew Palmer, The Use of Armed Guards, Legal and Practical Issues (2012) http://www.idaratmaritime.com/wordpress/?p=386 (last visited July 3, 2013). The author has stated that another incident similar to the Indian fisherman issue happened in 2010 in Oman where a crew from a passing cargo ship fired upon a group of fishermen, thinking they were pirates, killing one of them and injuring another and according to him there have been many similar incidents, and most have gone unreported because the victims were killed far out at sea.)).
Jurisdiction: Flag State jurisdiction
It is true that though Article 97 of UNCLOS provides for penal jurisdiction to be exercised based on flag state jurisdiction (Italy in this matter) or the principle of nationality, the matters in which such jurisdiction may be resorted to are restricted to collisions and any other incidents of navigation ((Article 97 of UNCLOS: Penal jurisdiction in matters of collision or any other incident of navigation: 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.)). Under no stretch of imagination one could say that the act of the Italian marines would fall under ‘any other incident of navigation’. It is submitted that the Supreme Court has correctly appreciated this issue by observing that an incident of navigation as intended in Article 97 of UNCLOS do not involve a criminal act and hence the matter cannot be left to the flag state ((Paragraph 94 of the judgment in Republic of Italy and ors v. Union of India and ors, (2013) 4 SCC 721)). Moreover, Chelameswar, J in Republic of Italy and ors v. Union of India and ors, (([2013] 4 SCC 721)rightly points out the fact that Article 97 has been placed under Part VII of UNCLOS which is dealing with High Seas and Article 86 restricts the provisions of Part VII to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State ((Article 86: Application of the provisions of this Part: The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58)).
Jurisdiction: State of Kerala or Union of India
An analysis of the international principles relating to jurisdiction supports the fact that Indian courts can exercise jurisdiction in the Enrica Lexie incident. Territorial principle in relation to criminal jurisdiction which states that, the courts of the place where the crime is committed may exercise jurisdiction can be used with the help of section 188A of the Cr.PC ((Section 188A, CrPC: Offence committed in exclusive economic zone: When an offence is committed by any person in the exclusive economic zone described in sub-section(1) of Section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 (80 of 1976) or as altered by notification, if any, issued under sub-section (2) thereof, such person may be dealt with in respect of such offence as if it had been committed in any place in which he may be found or in such other place as the Central Government may direct under Section 13 of the Said Act.)), which has been brought out by the Notification No. SO 67/E dated 27th August, 1981, to support the fact that Indian courts can exercise jurisdiction in this matter. The objective territorial principle that states that jurisdiction could be exercised by a state if any essential constituent element of a crime is consummated on that state territory can be squarely made applicable in this case as the victims which is a part of the whole criminal activity are Indian fishermen. The passive nationality principle by which aliens may be punished for acts committed abroad that are harmful to the nationals of the forum ((Ian Brownie, Principles of Public International Law 302 (2004).))could also be made applicable here so as to charge the marines of murdering the Indian fishermen. There is nothing wrong in Indian courts assuming jurisdiction over the marines even according to protective or security principle that states that all states assume jurisdiction over aliens for acts done abroad which affect the security of the state. It seems quite weird to analyse the factual situation of Enrica Lexie on the basis of every single principle of international law regarding jurisdiction. It could be said that there is no point in segregating each international principles as they all are inter related and mutually operative. This can be verified from the following observation. “It may be that each individual principle is only evidence of the reasonableness of the exercise of jurisdiction. The various principles often interweave in practice. Thus, the objective applications of the territorial principle and also the passive personality principle have strong similarities to the protective or security purpose.”
It may be true that the Italian marines are empowered under the flag state jurisdiction to carry firearms but once they have crossed over to the Indian jurisdiction, they are bound by the national laws of India. One may argue that they were not in the territorial waters, but section 188A of CrPC extends the criminal jurisdiction of India beyond its territorial waters up to its EEZ. The submission by Mr. Harish Salve, the learned counsel appeared for the Republic of Italy in the matter of Republic of Italy v. Union of India (([2013] 4 SCC 721))has specifically stated that once a convention is ratified (UNCLOS in this case), the municipal law on similar issues should be construed in harmony with the Convention, unless there were express provisions to the contrary. He has also relied on Maganbhai Ishwarbhai Patel v. UOI & anr. (([1970] 3 SCC 400))to show that unless there is a law in conflict with the treaty, the treaty must stand. It is submitted that the learned counsel assumes that there are no provisions to the contrary in the national law. The Notification No. SO 67/E dated 27th August, 1981 that brought out section 188A of the CrPC has been done as per section 7(7) of the Territorial Waters Act, 1976 ((Section 7(7): The Central Government may , by notification in the official Gazette,- (a) extend, with such restrictions and modifications as it thinks fit, any enactment for the time being in force in India or any part thereof to the exclusive economic zone or any part thereof; and (b) make such provisions as it may consider necessary for facilitation the enforcement of such enactment, and any enactment so extended shall have effect as if the exclusive economic zone or the part thereof to which it has been extended is a part of the territory of India.))and it has to be noted that the Notification is a law according to Article 13(3) (a) of the Constitution of India ((It has been stated by Dilip Rao in his article on Italian Marines v. Union of India that “s.188A, CrPC has not been notified under the CrPC and a new provision cannot be introduced through a gazette notification under the Maritime Act, 1976 but must be incorporated only through an amendment enacted by parliament – in simple words, this is an expansion of the scope of a criminal law which cannot be accomplished in this manner.” http://centreright.in/2013/03/italian-marines-v-union-of-india/ (last visited July 3, 2013).)). UNCLOS 1982 has been ratified by India on 29th June 1995 and it should be noted that there has been no reservations or declarations made by India at the time of ratification pertaining to extension of criminal jurisdiction beyond territorial waters. On one hand, it may be argued that by ratifying UNCLOS India ought to restrict the exercise of criminal jurisdiction especially when no reservations or declarations pertaining to the same has not been made thereby signifying the intention to be bound by the principles of UNCLOS. But it is also true that as per Article 309 of UNCLOS reservations and other exceptions are not allowed and by virtue of Article 310 declarations and statements should be in such a way that it do not purport to exclude or modify the legal effects of this Convention in the particular state and these may be the reasons why India restricted itself from making appropriate reservations or declarations. One may even go to the extent of saying that in case of conflict between international law and municipal law, municipal law should prevail and thus section 188A can still be applied in the instant case contrary to the provisions of UNCLOS.
In this context, it is pertinent to note down the observations of Justice Strong in the case of The Scotia ((The Scotia, 81 U.S. 170 (1871).))which has been quoted with approval in the case of The Paquete Habana ((The Paquete Habana, 175 U.S. 677 (1900).))which is as follows, “Undoubtedly no single nation can change the law of the sea. The law is of universal obligation and no statute of one or two nations can create legal obligations for the world. Like all the laws of nations, it rests upon the common consent of civilised communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation, or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Of these facts we may take judicial notice. Foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations”. This would fundamentally go against those who may argue that section 188A CrPC may be made squarely applicable in this matter, but it is submitted that The Suppression of Unlawful Acts Against Safety Of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (in short, SUA Act) alone is sufficient to bring the Italian Marines before the jurisdiction of the Indian courts.
The Supreme Court in Republic of Italy and ors. v. Union of India and ors. (([2013] 4 SCC 721))makes the following observation that “The State of Kerala had no jurisdiction over the Contiguous Zone and even if the provisions of the Indian Penal Code and the Code of Criminal Procedure Code were extended to the Contiguous Zone, it did not vest the State of Kerala with the powers to investigate and, thereafter, to try the offence. What, in effect, is the result of such extension is that the Union of India extended the application of the Indian Penal Code and the Code of Criminal Procedure to the Contiguous Zone, which entitled the Union of India to take cognizance of, investigate and prosecute persons who commit any infraction of the domestic laws within the Contiguous Zone. However, such a power is not vested with the State of Kerala ((Paragraph 84 of Republic of Italy and ors v. Union of India and ors, (2013) 4 SCC 721)).”
Though the word used in UNCLOS 1982 in relation to exercising of jurisdiction is ‘coastal state’ the corresponding provisions in the Territorial Waters Act, 1976 uses the words ‘India’ and ‘Central Government’. It is of no doubt that the term ‘state’ implies ‘nation’ in the international context. Moreover it is true that SUA Act under section 12 and Territorial Waters Act, 1976 under section 14 require the sanction of the Central government. But no where it is suggested that the requirement of sanction from the Central Government to prosecute certain offences means that only the centre has the jurisdiction to try the matter and not the state government. Moreover it becomes extremely difficult and in addition to that the admiralty jurisdiction conferred on our High Courts becomes obsolete if the centre decides to take all the matters coming within the SUA Act and Territorial Waters Act, 1976 within the jurisdiction of the Supreme Court.
Sections 179 and 183 of the CrPC coming under Chapter XIII that deals with the Jurisdiction of the Criminal Courts in Inquiries and Trials specifically permits the court of local jurisdiction to try this matter. According to section 179, “when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.” Further according to section 183, “when an offence is committed whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.” It is of no doubt that by virtue of sections 179 and 183 CrPC, the state of Kerala has the jurisdiction over this matter as the words specifically used in both the sections are “the court within/through local jurisdiction”.
It is also pertinent to note that Article 1(3) of the Constitution of India states that the territory of India shall comprise of the territories of the States, the Union territories specified in the First Schedule and such other territories as may be acquired. It has been specifically held in the case of Masthan Sahib v. Chief Commissioner, Pondicherry ((AIR 1962 SC 797))that the expression ‘territory of India’, wherever used, means the territory which, for the time being, falls within Article 1(3). This clearly shows that the territory of India will definitely mean the territory of the state. It should also be noted that the definition of India as a Union of States emphasises the fact that states play an important role in the Constitution of India, as apart from the States, India does not exist ((H.M. Seervai, Constitutional Law of India: A Critical Commentary 119 (1975).)).
Criminal Jurisdiction
According to Article 27 of UNCLOS, the criminal jurisdiction can be exercised on board a foreign ship only in cases where the consequences of the crime extend to the coastal State or if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea or if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State or if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances ((Article 27, UNCLOS: Criminal jurisdiction on board a foreign ship: 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.)). It is true that the firing by Italian marines definitely had consequences which extended to the coastal state but the same happened not in the territorial waters but in the contiguous zone. Section 27 of UNCLOS applies to cases concerning exercise of criminal jurisdiction on board a foreign ship passing through the territorial sea and not otherwise.
Section 3 of the Indian Penal Code ((Section 3 states that 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.))which deals with punishment of offences committed beyond, but which by law may be tried within India is wide enough in as much as it makes not only Indian citizens liable for offences committed abroad, but also those covered by any special law bringing them under Indian jurisdiction ((K.D. Gaur, Commentary on the Indian Penal Code 46 (2013).)). Hence this section, when it is wide enough to cover not only Indian citizens but also any person covered by special law bringing them under Indian jurisdiction, should be taken as capable of including Italian Marines as well. The only requirement for that purpose here is to have a law bringing them under Indian jurisdiction. A combined reading of section 3 of the IPC and the two statutes namely the Admiralty Offences (Colonial) Act, 1849 and SUA Act 2002 highlights the fact that Indian courts have the jurisdiction to try the Italian Marines ((Shyam Kumar, The Long Arm of Indian Law – Enrica Lexie Incident and Jurisdiction of Indian Courts to Try the Italian Marines http://admiraltylawkochi.blogspot.in/2012/04/long-arm-of-indian-maritime-law-enrica.html (last visited July 6, 2013). According to the author, section 3 of the Admiralty Offences (Colonial) Act, 1849, which provides that “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” clearly empowers the authorities in India to deal with offences committed outside India.)).
Section 1(2) of the SUA Act states that it extends to the whole of India including the limit of territorial waters, continental shelf, the exclusive economic zone or any other maritime zone within the meaning of section 2 of the Territorial Waters Act, 1976. Hence it is of no doubt that the SUA Act squarely applies to the Enrica Lexie incident that had happened outside the territorial waters of India. The issue can be more clarified by looking into section 1(3) of the act which states that it applies to any offence under section 3 committed outside India by any person. Section 1(3) is sufficient enough to bring even a non-citizen under its ambit. Section 1(4) provides that the act applies only to offences committed by an offender when such offender is found in the territory of a convention state. India is a party to the convention state and is thus a convention state. Section 3(1) of the Act which provides for offences against ship, fixed platform, cargo of a ship, maritime navigational facilities makes it an offence to unlawfully and intentionally cause death to any person in the course of commission of or in attempt to commit, any of the offences specified in clauses (a) to (d) of section 3(1) and also offers punishment in the form of death to such offenders under its sub-clause (g) (i).
Section 3(7) of the Act which is subject to sub-section 8 provides that where an offence 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. A combined reading of section 3(7) with section 3(8) (c) makes it clear that the Indian courts can exercise jurisdiction over this matter as the sub-section 8 specifically states that the court shall take cognizance of an offence punishable under this section which is committed outside India if the alleged offender 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. It has been rightly pointed out that “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 and hence the Act squarely applies to the facts of the case ((Shyam Kumar, Long Arm of Indian Law – Enrica Lexie Incident and Jurisdiction of Indian Courts to Try the Italian Marines http://admiraltylawkochi.blogspot.in/2012/04/long-arm-of-indian-maritime-law-enrica.html (last visited July 6, 2013).)).”
It is true that the previous sanction of Central Government is necessary for prosecution under SUA Act ((According to Section 12, no prosecution for an offence under this Act shall be instituted except with the previous sanction of the Central Government.))but once the same is given, the Sessions Court which can be designated by the State Government with the concurrence of the Chief Justice of the High Court may try the offences under this Act.
The appropriateness of punishment
As regards the punishment that could be provided to the Italian Marines, it is submitted that the punishment that exists according to section 575 of the Italian Penal Code, 1931 for murder is 21 years and the maximum punishment that could be awarded in case of aggravating circumstances is life imprisonment according to sections 576 and 577. It is submitted that the same is considerably different in the Indian punitive sanctions where the maximum punishment that can be awarded is death for an act of murder under section 302 IPC. It is not intended to argue that the marines should be awarded death sentence for their acts but to show the considerable amount of difference that exists in the realm of criminal law sanctions in the two jurisdictions. Moreover capital punishment is out of question in the Italian criminal justice administration as it is generally out of use. According to Article 27 (as amended by the Constitutional Amendment Law of 2007) of the Constitution of Italy, “Criminal responsibility is personal. A defendant shall be considered not guilty until a final sentence has been passed. Punishment may not be inhuman and shall aim at re-educating the convicted. Death penalty is prohibited.” This clearly aims at reforming and rehabilitating the offender. But in India, we still give importance to deterrent and retributive forms of punishment as it is evident from the fact that we still retain death penalty. This is further clear from the fact that Italy has signed and ratified the Second Optional Protocol to ICCPR aiming at the abolition of Death Penalty, 1989 whereas Indian has not done that yet ((http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en (last visited July 17, 2013).)). Furthermore, India being a common law country does have the advantage of precedents like Nilabathi Behera v. State of Orissa (([1993] 2 SCC 746))and The Chairman, Railway Board & Ors v. Mrs. Chandrima Das & Ors ((AIR 2000 SC 988)), where the Supreme Court have clearly ruled that compensation could be granted when the violation of fundamental rights are so patent and incontrovertible. It cannot be guaranteed that Italian laws which are based on civil law could adapt to the particular facts and circumstances like it is being done by the Indian courts.
Conclusion
Once we take all the factors that were discussed into consideration, it could be said that the Italian marines could be prosecuted in India for the offences they have committed. Without a doubt, it could be established that the marines had exceeded in the use of force especially when there is no concrete evidence to show that at least a reasonable apprehension of a pirate attack by the deceased Indian fishermen existed. It is true that the incident happened in the contiguous zone but by virtue of section 188A CrPC, which has been brought out by way of a notification in the Official Gazette it is not possible to completely agree to the claim made by Italy that they have the sole jurisdiction in this matter. The fact that the Italian marines have blatantly violated international norms which have been laid down in the form of Best Management Practices and Rules for the Use of Force should have been noted down by the court while disposing of the matter. The judgment of the Supreme Court which observed that it is only the Union of India and not the State of Kerala which has jurisdiction over this matter may be true considering the fact that the issue itself has become international and has attracted international attention. But an analysis of the provisions of the sections 179 and 183 of the Criminal procedure code compels us to think that there is some error in the judgment and it should have left the jurisdiction to the state itself.