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Italy goes back on its word
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Kanwal Sibal | Date:16 Mar , 2013 3 Comments
Kanwal Sibal
Former Foreign Secretary of India

The latest turn of events in the Italian marines case is most unfortunate for both India and Italy as the bilateral relationship is being put under serious strain. The Indian side had greater reason to feel aggrieved by the cause of the crisis. Indian nationals were killed near the Indian coast, plainly without justification, by Italian marines.

For the marines to believe that Somali pirates operate near the Kerala coast shows their limited awareness of the geographical reality of threats against which they were supposed to defend the Italian cargo ship. That they killed so readily showed the inadequacy of their training in dealing with suspected piracy situations.

…there is no clarity in international law about the sovereign immunity of military personnel deployed on commercial vessels because such vessels, unlike military vessels, have no sovereign immunity.

The marines being in Indian custody, it was inevitable that there would be pressure on the government to bring them to justice in India.

The Italians argued from the beginning that the marines being Italian naval personnel, India had no jurisdiction over them. If an Italian warship were involved, international law would have upheld Italy’s position. However, there is no clarity in international law about the sovereign immunity of military personnel deployed on commercial vessels because such vessels, unlike military vessels, have no sovereign immunity.

It was unrealistic on Italy’s part to expect that India would simply hand over the marines to the Italian authorities and lose control over the judicial process to bring them to justice.

For India, it was for its courts to determine whether it would have jurisdiction over a crime committed against Indian nationals in the contiguous zone and whether naval personnel deployed on Italian cargo vessels under Italian law for protection against acts of piracy were entitled to sovereign immunity. These issues could not be decided purely at the diplomatic level.

If the Italians felt aggrieved that their marines were being subjected to Indian jurisdiction it was because of technical legal grounds, not for any crime committed against them. They were being subjected to due process of law, though in India and not in Italy.

India is considering retaliatory options should the marines not return by the due date. The Ambassador could be declared persona non grata and all high-level official contacts could be frozen.

In reality, the Italy accepted, however unwilllingly, to submit the marines to Indian jurisdiction, challenging India’s legal position right up to the Supreme Court, unsuccesfully though as the Supreme Court has ruled that India has jurisdiction over the case.

Other developments have been favourable for Italy, in that the case was moved out of Kerala to the Supreme Court. The Indian side showed abnormal consideration for the marines, allowing them to join their families for Christmas on the basis of the Italian Ambassador’s affidavit guaranteeing their return. The marines were allowed to go home again in February, again on the basis of a similar affidavit by the Italian Ambassador. The Supreme Court’s generosity may have been intended to placate the agitated public opinion in Italy by treating the marines humanely. The India-Italy agreement on the exchange of prisoners also opened the possibility of transferring the marines to Italy to serve their prison sentence after conviction here.

The Italian government has suddenly escalated matters by reneging on the Ambassador’s affidavit. That a major European power, a law-abiding democracy believing in the rule of law and sanctity of accords between countries, should so flagrantly disregard its own solemn commitment to a friendly country and show contempt for its highest court is unprecedented. That it ceded to domestic pressure is neither here nor there, as India too has to contend with public opinion, and, on top of that, with the ignominy now of being treated in such a cavalier manner.

Italy’s explanantion that there is now an international dispute with India and that it is open to a solution through arbitration is doubly injurious as it presents India with a fait accompli, asks India to reject the finding of its own Supreme Court and indirectly endorse the legitimacy of the Italian government’s step. The Italian Ambassador’s second affidavit seems, with hindsight, a cynical ruse to get the marines out.

The fact that the marines were received on return by the Italian Prime Minister shows that they are not being seen as criminals but heroes who have escaped Indian persecution.

The Indian Prime Minister is right in describing the Italian decision as unacceptable and has warned of consequences if the marines are not returned. His statement that Italy has violated every rule of diplomatic discourse has called into question the solemn commitments given by an accredited representative of its government and that bilateral relationships have to work on the basis of trust is entirely to the point.

…the only option for the government would be to declare him (Ambassador) a persona non grata and expel him. Italy may actually be ready for this.

India is considering retaliatory options should the marines not return by the due date. The Ambassador could be declared persona non grata and all high-level official contacts could be frozen. Besides the repercussions on the Augusta Westland case, business relations will be affected by the downturn in bilateral relations.

The Italian government would have weighed all possible Indian reactions while taking its highly provocative decision. It is apparently not overly concerned about the consequences.

The Supreme Court has asked the Ambassador to explain why the Italian government is reneging on its commitment and told him not to leave the country. The court is within its right to ask for an explanation as the Ambassador had voluntarily submitted himself to its jurisdiction. The Geneva Convention of diplomatic relations protects the Ambassador so long as the Italian government does not expressly waive his diplomatic immunity — which it assuredly will not do.

The court cannot physically prevent the Ambassador from leaving the country should he choose to do so, as this will be violative of the Convention. If he refuses to explain to the court the Italian government’s position on the ground that he is not subject to its jurisdiction and attempts to leave the country, the only option for the government would be to declare him a persona non grata and expel him. Italy may actually be ready for this.

It is most unfortunate that the Italian government has provoked this unnecessary crisis.

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3 thoughts on “Italy goes back on its word

  1. “The Italian government would have weighed all possible Indian reactions.”
    Of course! If Italy were to cut all ties Indian exports would suffer much more (check Indian embassy in Rome).
    Any other pressure on Italy is pressure on the EU where Italy holds veto rights it could use to counter anything connected with India.
    Not to mention Indian tourism and the many thousands of Indian expats that could be made to return.
    A big discrepancy of this case is that the marines always stated it was a different boat and they only fired 20 warning shots into the water, whereas Mr Freddy, the only witness who never identified the tanker, stated he heard continuous firing for 2 minutes.
    Now any former military like me knows that continuous machine gun fire only needs 2 seconds for 20 rounds and the witnessed 2 minutes really make you wonder …..
    Let’s not forget that the initial arrest was carried out through deceit by India (your coastguard boasted that they lured Enrica Lexie into Kochi to help recognise a supposed pirate boat).
    All Italian requests for joint investigation, international arbitration etc, were rejected because of Kerala political issues.
    The Kerala attitude was “we cheated them and we hold them by the balls”.
    Can’t any reasonable Indian understand that, after over a year of this, not returning the marines on a technicality (they were not formally charged by the SC) was a welcome checkmate!
    Our Ambassador likes India and has no intention of leaving. So the airport notice is laughable.
    He will probably be made a persona non grata and that’s all.
    Unfortunate as it may be, after over a year of time wasted, India is being repaid with the same coin.

    • @ Mario Ricci
      On Italy’s import of Indian goods and tourists, I think you have reversed the gears. By tourism it will be Italy’s economy that would be hit if you compare Italians coming to India v/s Indians traveling abroad and to Italy.

      As far as reasonable Indians, well most Indians are of the opinion that a through investigation should have been on v/s the judgement already given by the Italians…so i guess the question of being reasonable vis a vis italian thought is that Italians firing were / are commandos that cannot be tried in inferior countries.The rude shock was to the Italians that had the pre conceived notion of macho-ism that led them to fire. The figment of imagination of the story of Indian coast guard having to lure the boat in Indian waters perhaps stems out from such notions that led the italians into a shock of being arrested and tried.

      Agree on the term that the SC decision of holding the envoy is laughable , this stems from us acknowledging our folly v/s the bloated ego that led you to believe that economically India would be hurt whose economy rised by atleast 5-6% growth instead of Italy whose economy might hover around 0.2% if not maintaining itself at 0%
      A contradiction on your part….on the one hand you talk of italy not being hurt with diplomatic ties being cut off with India , on the other hand you try and seek shelter in the European Union….
      The other european Union countries would be better of thinking of their economic situation vis a vis Italy’s….this has been show cased many a times…but perhaps yor insecurity of your own boastfullness makes you seek shelter in the EU against India imagination.
      The reasonable Indian acknowledges a weak PM, when will the Italians realise that living in a imaginative superior world led them to World wars.
      Perhaps the right decision will be to cut of Diplomatic ties with Italy…we shall see how the EU reacts in contrast to your imagination…but for a weak Indian PM

  2. The whole concept of letting the marines go after holding them on account of murder was flawed.
    If the Govt thought they were not guilty, why hold them apart from vote bank politics that bit the Govt in the backside.If they were guilty, then why let them go in the first place, its no rocket science that they could have voted thru their consulate. Now holding the envoy is as absurd. How long does the Indian Govt think, they can ask the Italian envoy to stay put, if the Italians cared to hoot about India’s Supreme court decission in the first place , what makes one think the Italians will care about the second supreme court’s decision, after all the envoy is on Italian lands when in his embassy abroad.

    The Indian Govt doesn’t have the gall to do a ‘Honnicker’ as in East Germany, they cant even do that to terrorists. The IAS ,the President of India and the Prime Minister of India have only once again managed to make a fool of and Tarnish the image of all Indians. In this case the scape goat will the supreme court judges..

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