The Enrica Lexie Incident – Private Security Counterpoint

Italian Marines on Trial in India

There has been considerable public interest in a recent incident off the coast of India where an Italian Vessel Protection Detachment (VPD) of Italian marines shot and killed two Indians aboard a fishing vessel whom they apparently mistook for pirates. Jurisdiction over the incident has been contested by the two nations and the facts are very much in dispute.  It is now reported that an Indian court has ordered the Italians be held in jail while they await trial. The report notes:

Italy’s Foreign Minister Guilio Terzi traveled to New Delhi last week to press his country’s position that the men should be tried in an Italian court, but India refused to cede jurisdiction.

New Delhi says the case should be tried in India because the killings happened on an Indian boat. Rome says the shooting took place in international waters and the case should be handled in Italy.

There are several interesting analyses about the jurisdictional arguments in this case. Douglas Guilfoyle states that UNCLOS provides for concurrent jurisdiction to India (as the flag ship of the victims) and Italy (as the flag ship of the defendants). He notes, however,

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

Jon Bellish also notes that the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation supports the finding of concurrent jurisdiction in these circumstances as it more explicitly provides for jurisdiction based on  territorial, nationality, passive personality, and protective principles.

Apart from the diplomatic drama, what makes this incident extremely important is the repercussions it may have on Private Military and Security Companies (PMSCs). If these two marines are granted State immunity and let go, it could be an encouraging sign to other seagoing nations to support VPDs on their own flagged vessels. If State immunity is denied, and VPDs risk the same liabilities that exist with PMSCs, it could discourage states from continuing to provide VPDs. In the latter case, shipping companies would be left to decide whether to hire PMSCs and take on the liabilities that come with hiring companies in a loosely regulated industry. The stakes are very high as one report valued the PMSC industry for piracy alone at around $1 billion in 2011.