Italy's bluff makes India blub

Law of land: The trial of the two marines falls squarely within the domestic jurisdiction.
Last Updated 17 March 2013, 05:00 IST

The Ciampino Airport near Rome had a festive look on December 22 last when a special plane flew in from faraway Kochi in southern India. Onboard the aircraft were Italian marines Massimiliano Latorre and Salvatore Girone.

Italy’s Defence Minister Giampaolo di Paola and Navy Chief Admiral Luigi Binelli Mantelli joined the families of the two marines to give the duo what appeared to be nothing less than a ‘Hero’s welcome’. The ceremonial reception was preceded by brief addresses of Girone’s father Michele and Latorre’s sister Franca to mediapersons and was later followed by the two marines’ meeting with Italian President Giorgio Napolitano and Prime Minister Mario Monti.

So much for the two trigger-happy naval guards, who deemed it fit to open fire on a fishing boat off the coast of Kerala on February 15, 2012, merely on suspicion that it could have pirates onboard and might pose a threat to the vessel they were assigned to protect! They have been accused of murdering two Indian fishermen and are still on trial in India.

Massimiliano and Salvatore did return to Kochi on January 4, adhering to the order of the Kerala High Court, which had granted them a brief – and rather rare – leave to celebrate Christmas with their families in Italy. Talking to mediapersons in Kochi, Giampaolo Cutillo – Consul General of Italy – waxed eloquent to stress that Italian Government had ensured the return of the duo in keeping with its commitment to the Kerala Court.

None guessed it was in fact a ‘dry run’ before the Italian Government could choreograph the two marines’ final flight – thanks to certain gullible, surprisingly unsuspecting and ready-to-help elements in the State of India. The Supreme Court on February 22 last allowed them to go home again, this time for four weeks to cast vote in the parliamentary elections of Italy. Massimiliano and Salvatore then left India, a little more than a year after the bullets they fired from onboard MV Enrica Lexie snuffed out the lives of Ajesh Binki (27) and Jelestine (45) – both sole breadwinners for their families.

New Delhi was not outraged by the grand reception the two marines – both accused of murder – were accorded in Rome! Neither could it see through the deceptive diplomacy of Italy or its game plan even when Rome asked for meetings with New Delhi at the diplomatic level to resolve the disputes over Indian judiciary’s jurisdiction over Massimiliano and Salvatore’s trial!

It was only after the Ministry of External Affairs received a note verbale from Rome’s envoy to New Delhi, Daniele Mancini, that India woke up to the fact that the proverbial long arm of its law might now fall helplessly short to catch the killers of Ajesh and Jelestine.

“Italy has consistently considered the conduct of the Indian authorities a violation of the obligations imposed by international law to which India is subject by virtue of customary international laws and treaties, in particular the principle of immunity from the jurisdiction of the bodies of any foreign State, and the rules of the United Nations Convention on the Law of the Sea of 1982,” the Ministry of Foreign Affairs of the Italian Government stated on March 11 – the day Rome conveyed to New Delhi that the marines would not return to India.

Italy stated that its decision was prompted by lack of response from India to its call for a diplomatic solution to the case.

Rome’s snub to both judiciary and executive of India immediately triggered furore and the ruling Congress-led United Progressive Alliance found itself in a tight spot with the Opposition accusing the Government of going soft on the marines. The Bharatiya Janata Party even referred to the Congress first family’s links with Italy to embarrass the Government.

Another Italian businessman Ottavio Quattrochhi’s role as a conduit for bribes in the Bofors scam of 1980s and his escape from the law were recalled. Attacking the Government in Parliament, the principal Opposition party referred to the probe into Italian company Finmeccanica for alleged bribery in its UK-based subsidiary AgustaWestland’s deal to supply 12 civilian choppers to Indian Air Force.

The critics of the Government also referred to New Delhi’s past failures to get the fugitives of law from foreign land – like former Union Carbide chief Warren Anderson and terror plotter David Coleman Headley from United States in connection with the 1984 gas tragedy in Bhopal and the November 26, 2008 attacks in Mumbai respectively, or Kim Davy from Denmark for his lead role in 1995 arms dropping at Purulia in West Bengal.

Immunity clause

The cornered Government talked tough with Prime Minister Manmohan Singh warning Italy of ‘consequences’ if the marines are not sent back to stand trial in India. Rome showed no sign of budging from its stand. “Our very solid position, of which we are fully convinced and that is shared by many of our major international community partners, is that we are acting in full compliance with international legal standards and customary international laws and treaties”, Foreign Minister of Italy, Giulio Terzi, told journalists in Jerusalem.

The Supreme Court – after being informed by the Government about Italy’s decision not to send back Massimiliano and Salvatore – issued notices to Rome’s envoy to New Delhi and also asked him not to leave India.

While Italian Government is expected to file responses to the Supreme Court notices on Monday, speculation is rife how New Delhi would react in case envoy Mancini did make an attempt to leave the country. External Affairs Minister Salman Khurshid said that all agencies of the Government would comply with the apex court’s order.

But then,  wouldn’t any such action by the Government violate the diplomatic immunity enjoyed by Mancini? Article 31 of the 1961 Vienna Convention on Diplomatic Relations grants diplomats of all countries immunity from the criminal jurisdiction of the country they are stationed in.

It also grants them immunity from the civil and administrative jurisdiction, except in certain cases, when they act as private persons, and not as official representatives of their countries. New Delhi, however, is understood to be relying on the Article 32 (3) of the same treaty, which says that initiation of proceedings by a diplomatic agent shall preclude him from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.

Mancini, himself, had filed an affidavit in the Supreme Court taking “full responsibility” on behalf of the Italian Government to ensure the return of the marines to India after casting votes in Italy. It was on his solemn commitment that the apex court had on February 22 last granted the duo a four-week-leave from the trial.
Still, Article 29 of the Vienna Convention prevents the Government from arresting or detaining the Italian ambassador.

At stake

New Delhi started a review of the “entire expanse” of its relations with Italy and even asked its new envoy to Rome, Basant K Gupta, not to take up his assignment immediately; dropping enough hints that it was contemplating to downgrade the ties if the marines do not return to India. New Delhi also asked the European Union to prevail upon Italy and make it respect its own commitment to the apex court of India.

If pressure at home prompted Italian Government to opt for the brazen move to renege on its own commitment, the same is likely to compel New Delhi to respond sharply and strongly. The two countries, however, have at stake a relation, which has seen bilateral trade growing by 18% from €7.21 billion in 2010-11 to €8.52 billion in 2011-12.

Italy is among India's top five trading partners in the EU and the 12th largest investor in India. Around 140 Italian companies have presence in India. A number of Indian companies have presence in Italy, particularly in sectors like Information Technology, electronics, pharmaceuticals, automobile, textile and engineering. Also at stake are several ongoing and prospective defence deals, including Italy’s involvement in indigenous aircraft carrier project of India.

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(Published 16 March 2013, 17:42 IST)

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