Italians Trial a Test Case

The Enrica Lexie case could potentially set a precedent to evaluate cases of fatal shootings involving privately contracted armed guards deployed to protect cargo ships against pirate attacks

Italian marines trial a test case for maritime sector

The international maritime community is keenly awaiting the outcome of a trial involving two Italian marines detained in India since 15 February last year for killing two unarmed Indian fishermen off the coast of the southern Indian state of Kerala.

India has handed over the case to its National Investigation Agency (NIA), which functions as the nation’s counter-terrorism law enforcement agency.

The marines, members of a military security team protecting the Italian cargo ship, Enrica Lexie, from Somalian pirates, fired on the fishermen’s boat killing two persons. Italy says the men mistook the fishermen for pirates.

The Enrica Lexie case is of particular interest to the maritime community as it could potentially set a precedent to evaluate cases of fatal shootings involving privately contracted armed security personnel deployed to protect cargo ships against pirate attacks.

The marines in this case were not commercial armed guards but Italian military personnel, and the case gains added importance because it puts the spotlight on a security team’s counter-piracy operation going wrong.

This is exactly what the International Maritime Organization (IMO), a United Nations agency tasked with the safety and security of shipping, dreaded while agreeing to issue guidance in 2011 to private maritime security companies providing armed security guards on board ships in the high-risk area of the western Indian Ocean and the Gulf of Aden.

IMO says that it does not endorse the use of privately contracted armed security guards and that its guidance was not legally binding. Nor was the guidance a set of certifiable standards.

The Enrica Lexie shooting has become a dispute over jurisdiction and appropriate rules on the use of force.

The case has soured relations between New Delhi and Rome. Italy has challenged India’s right to try the two marines—Massimiliano Latorre and Salvatore Girone—arguing in India’s top court that the shootings took place in international waters.

Indian authorities accuse the marines of killing unarmed fishermen in a contiguous zone where Indian law applies.

The case took a dramatic turn when Italy told India in early March that it would not return the two men to stand trial in New Delhi when their court-granted leave ended.

This led to a huge uproar in India, forcing Prime Minister Manmohan Singh to say that Indo-Italian relations risked being undermined by Rome’s refusal to honour its commitment to the Supreme Court to return the two marines. India had first allowed the two marines to go home for Christmas. Then, on 23 February, India’s Supreme Court allowed them to return to Italy for a month to vote in the general election.

Following India’s diplomatic offensive, and faced with the threat of isolation within the international community over the issue, Italy finally agreed to return the two men to stand trial in India before the court deadline ended but only after extracting an assurance from India that they won’t be sentenced to death whatever be the outcome.

NIA registered a first information report (FIR) on 4 April, charging the two marines with “murder by firing” under Section 302 (murder), 307 (attempt to murder) and 427 (mischief) of the Indian Penal Code (IPC) and also Section 3 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002 (SUA). India invoked SUA to back claims that it had the jurisdiction to try the marines here. SUA forms a part of NIA’s charter.

SUA only provides for the death penalty while IPC provides for death or imprisonment for life.

Despite booking the two marines under Acts that provide for the death sentence, India has said that it will honour its assurance on the death penalty as the case was not one of those that fell into the “rarest of the rare” crimes in which execution is applicable.

Having settled the issue of jurisdiction, and with the extent of the penalty more or less decided even before the trial starts, the maritime community will be keen to know what the judgement will have to say on the rules for the use of force during a pirate attack.

According to IMO guidance, all reasonable steps should be taken to avoid the use of force and, if this is to be used, it has to be done so as part of a graduated response plan, in particular including the strict implementation of “best management” practices.

The use of force should not exceed what is strictly necessary and reasonable in the circumstances and care should be taken to minimize damage and injury and to respect and preserve human life, according to the guidance.

Privately contracted armed security personnel should only use firearms in self-defence or in defence of others, the guidance says.

Was the IMO guidance overlooked in this case? It should be noted that the IMO guidance deals only with privately contracted armed security guards and not with the presence of government military personnel, as in this case.

IMO says it does not address the concept of “rules of engagement” as this is a military concept outside the organization’s remit.

A ship with armed guards is yet to be hijacked by pirates, underscoring the fact that the shipping industry’s effort to eradicate the menace of Somali pirates through this initiative has started yielding results.

The outcome of the trial will hopefully bring more clarity on the use of force and set a benchmark for future cases involving states and commercial armed guards hired to protect cargo ships against pirate attacks.