Designing a “Special Court”: On solving the Italy-India conflict under the Law of the Sea

March 28, 2013 — drsubrotoroy

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.

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Posted in Case by Case Philosophical Technique, Common Law and Equity, Comparative Government, Delhi, DHN Johnson, Diplomacy, Diplomatic protocols, Enrica Lexie case, India in international law, India's Diplomacy, India's Foreign Service, India's Judiciary, India's Jurisprudence, India's Rule of Law, India-Italy Conflict, International diplomacy, International Law, International politics, Italian marines case in India, Italy, Italy-India conflict on the high seas. 2 Comments »

Solving the Italy-India conflict lawfully **without**mutual diplomatic expulsions

March 19, 2013 — drsubrotoroy

 

solving

Posted in DHN Johnson, Homicide at Sea, India in international law, India's Diplomacy, India's Judiciary, India's Jurisprudence, India's Rule of Law, India-Italy Conflict, International diplomacy, International Law, International politics, Italian marines case in India, Italy, Italy-India conflict on the high seas, Jurisprudence, Law, Law of the Sea, Maritime Law. 2 Comments »

Homicide at Sea: Which Vessel is the Pirate in the Italy-India Conflict?

March 12, 2013 — drsubrotoroy

Please see the current issue of the Denver Journal of International Law and Policy

http://djilp.org/3711/homicide-at-sea-which-vessel-is-the-pirate-in-the-italy-india-conflict/

Some two dozen rounds of a powerful automatic gun are suddenly fired from one vessel on the high seas onto another. The latter is an unarmed Indian fishing boat with nets cast. Two fishermen are killed on deck, some eleven are asleep below deck and are injured. The vessel has some 16 bullets on it. The shooter, an Italian oil tanker, departs the scene and apparently does not report to the closest maritime authority that it has fired at presumed pirates. But of course, it *itself* may be the pirate by the Law of the Sea convention because the specific gunmen might just have been, while on their long voyage, bored or drunk when they saw some dark thin figures in the distance in the water and thought they would get some target-practice for fun.  Viz., “Article 101 Piracy consists of …any illegal acts of violence … committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed…  on the high seas, against another ship … or against persons or property on board such ship…”.  These homicides that took place on the high seas may have been accidental (e.g. the gun jammed) or unintentional or deliberate murder, we do not know because the facts have not been allowed to be tried in court proceedings.

The fishing vessel returned weeping to port, the Indian Navy and Coast Guard to their credit engaged in hot pursuit, and managed to arrest the Italian vessel on the high seas, and the Italian vessel to its credit did not make a run for it but came into port.  Then the local provincial police arrested the alleged gunmen and charged them with murder etc under domestic law; and also refused to let the ship free until it had paid a bond etc.

Who has had jurisdiction? Italy or India? From the beginning I, on the basis of my little learning in 1973-74 under the late great Professor DHN Johnson at the London School of Economics, one of the authors of the Law of the Sea Convention being written at the time, said the answer was both — it is a case of *concurrent * jurisdiction, where Italy obviously has jurisdiction as it was an Italian vessel that caused the homicide at sea, while India too has jurisdiction as an Indian vessel was assaulted and India made the ship-arrest on the high seas.   The case needed clinical adherence to law and forensics by both countries in cooperative pursuit of the truth such that that elusive thing *the interests of justice* could prevail.

Italy rightly said the local domestic law of  *the land* did not apply, and the Supreme Court of India agreed with them. But Italy wrongly said India did not have jurisdiction at all, and the Supreme Court of India was clear that India had to create a *Special Court* for the purpose of a trial under international law.  *Had India not made the ship-arrest and prosecuted the case, the possible criminal act that may be involved in this homicide at sea would have disappeared altogether.*

Italy then asked for the two alleged gunmen to go home on parole for Christmas, the Supreme Court was assured by the Italian Government they would return to face trial, the Supreme Court granted them parole to do so, and they did return; some weeks later Italy asked for the two to go on parole again, this time to vote in their elections; again, with the same assurances, the Supreme Court of India allowed them to do so.

Now Italy has breached its undertaking to the Supreme Court and refused to return them, saying India is in breach of international law, and Italy has sent the alleged gunmen back to normal work without even any purported trial of facts in the case under Italian law or Italian military law.

The Italian Ambassador would normally be in clear Contempt of Court — except he has diplomatic immunity and cannot be arrested or prosecuted.  India, it seems to me, has no recourse but to take the drastic measure of declaring the Italian Ambassador and perhaps others of his staff *persona non grata*, and to expect an equivalent retaliatory measure from Italy, and for a chill in trade and business relations and tourism etc to set in for a while before things can get better.  Diplomatic expulsions need to demonstrate swiftness of purpose because they are a metaphor for warfare; waiting until March 22 because it is a court deadline or to give the other side a chance to respond is both tedious and silly. Besides, an expulsion is retaliated with by an expulsion usually; where it is not, it is the diplomatic equivalent of a military surrender.

It is an unfortunate rift in relations between friendly countries due to a random event on the high seas; it required the right application of international law to the facts, which neither Government separately or together managed to do; that was something I have feared and warned against from when it started.  In June, the local Italian Government consul asked to meet me and came to be fully apprised by me of what I thought the legal facts were and what could be done in the interests of justice. But they chose not to accept the advice.

Dr Subroto  Roy blogs at www.independentindian.com

See also
also
http://independentindian.com/2013/03/19/solving-the-italy-india-conflict-lawfully-without-mutual-diplomatic-expulsions/

Posted in Common Law and Equity, Comparative Government, DHN Johnson, Diplomacy, Diplomatic protocols, Enrica Lexie case, Government of India, India in international law, India's Diplomacy, India's Foreign Policy, India's Foreign Service, India's Foreign Trade, India's Judiciary, India's Jurisprudence, India's Supreme Court, International Law, International politics, International trade, Italian marines case in India, Italy, Italy-India conflict on the high seas, Law, Law of the Sea, Piracy, Piracy at sea. 2 Comments »

A basis of India-Pakistan cooperation on the Mumbai massacres: the ten Pakistani terrorists started off as pirates and the Al-Huseini is a pirate ship

January 1, 2009 — drsubrotoroy

One of my finest teachers at the London School of Economics many years ago had been Professor DHN Johnson, a pioneer of the Law of the Sea Treaty; reflecting upon the aftermath of the Mumbai massacres, it occurs to me that the Law of the Sea Treaty may provide the most expedient and lawful recourse in present circumstances, as well as a proper and clear basis for cooperation between the Government of India and the Government of Pakistan in the matter.

Both India and Pakistan have signed and ratified the Law of the Sea Treaty which reads at  Article 101

“Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”

From the captured Kasab’s confession, it is clear he and his companions began their criminal activities within Pakistan (by training as terrorists and engaging in a conspiracy to commit mass-murder) and this continued outside Pakistan at sea:

“On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone.  Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman (Tandel) in the basement of the launch.”

Pirates in law are Hostis humani generis or “enemies of mankind”.    As signatories to the Law of the Sea Treaty, India and Pakistan may act jointly against the Al-Huseini and others associated with the acts of  piracy including the maritime murders of the Indian fishermen that preceded the Mumbai massacres, thus solving the question of jurisdiction before it arises.  The remains of the nine dead Pakistani terrorists presently in a Mumbai morgue  can be buried at sea in international waters by whatever funeral procedure is due to dishonourable sailors and pirates.  (The fish will not refuse them.)  Kasab can be tried as a pirate too — though he really needs an American defence attorney to plea-bargain for him as he turns State’s evidence against the real masterminds of the plot, some of whom may be presently in the custody of the Pakistan Government.

Subroto Roy

Posted in DHN Johnson, India-Pakistan cooperation against terrorism, International Law, Law of the Sea, London School of Economics, Mumbai massacres, Mumbai terrorist Kasab, Mumbai's Police, Mumbai/Bombay, Pakistan's exports, Pakistan's terrorist masterminds, Pakistan, Balochistan, Afghanistan, Iran, Piracy, Terrorist techniques. Leave a Comment »
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