From Facebook:Subroto Roy hears the Italian PM say “We have started a political dialogue, we have pinpointed a road towards a rapid solution, either negotiated or reached judicially, reorganising the judicial itinerary”,and can only wonder if there is any better solution to the one I have proposed:– a Special Court as asked for by the Supreme Court of India,
– perhaps housed in the Supreme Court in New Delhi,
– perhaps designated a UN Special Tribunal if necessary,
– consisting of four judges, two Indian and two Italian,
– (hence there is no further conflict over jurisdiction — and indeed both countries have concurrent jurisdiction requiring a cooperative approach in the interests of justice)
– with judges well-versed in the Law of the Sea (for example, Judge Rao and Judge Treves of the International Tribunal on the Law of the Sea)
– to calmly and objectively try the evidence of the case:
Was there murderous intent? Yes/No.
Was there criminal negligence? Yes/No.
Was there honest error? Yes/No.
That is it. Three questions are to be investigated for answers based on the evidence at hand.
This will require a **joint prosecution** — the Kerala police can give the experience of the victims, the Italian military prosecutor will be needed to depose the shooters themselves or otherwise ascertain the presence or not of mens rea. In any case, whatever the verdict, the men will return to the custody of the Italian military to serve any sentence.
The case will set a precedent in the Law of the Sea.
The personal nationality of the shooters and of the victims is wholly irrelevant — only the nationality of the vessels is relevant and the location in the waters. The shooters could have been nationals of a third country, the victims the nationals of a fourth. Italy has been disingenuous in claiming sovereign immunity saying they were military personnel — because the Italian vessel was not a warship but a merchant; and an Indian warship was within its rights under the Law of the Sea to arrest it and board it on suspicion of it having caused illegal violence on another vessel under Article 101 of the Law of the Sea: “Article 101 Piracy consists of …any illegal acts of violence … committed for private ends by the crew or the passengers of a private ship … and directed… on the high seas, against another ship … or against persons or property on board such ship…”. Equally, I do not think it salubrious if India has moved to designate an ordinary criminal court in Delhi as the Special Court required by the Supreme Court. Neither the State of Kerala nor the NCT of Delhi has standing in law except as a witness as this is a matter of international law on the high seas between the Republic of Italy and the Republic of India. The Supreme Court has asked for a *Special Court* to be established to try a case without known precedent in international law and diplomacy; it did not mean to merely change the venue from Kerala to Delhi.
My proposed design of such a Special Court may be the best there is.