The Enrica Lexie and Unintentional Terrorism
April 2, 2012 6 Comments
GUEST POST BY: Jon Bellish cross-posted at The View From Above.
An interesting exchange took place at the Kerala High Court on Friday between presiding Justice PS Gopinathan and VJ Matthew, counsel for the owner of the Enrica Lexie. Regardless of the level of significance one attributes to Justice Gopinathan’s remarks, the dialogue sheds light on the tension and deep mistrust surrounding the events of February 15th.
Mr. Matthews, representing Dolphin Tankers argued that the Italian marines had to be classified as terrorists in order for the India’s statute implementing the IMO’s SUA Convention (SUA Act)[1] to apply. In response, Justice Gopinathan said, “[t]he firing on Indian fishermen by two Italian marines- Massimiliano Latorre and Salvatore Girone-off the Kerala coast was an act of terrorism…As far as victims are concerned, their relatives are concerned, as far as Indians are concerned [the alleged shooting was] a terrorist act.”
To be fair, Justice Gopinathan did not declare the Italian marines terrorists as a matter of law. He merely stated that that is how the general public viewed them. It is nonetheless disturbing for an officer of an Indian High Court to give voice to his private opinion about the facts of a case before him, especially when that opinion deviates so far from reality.
Where Mr. Matthew’s claims are concerned, it is far from certain that the marines must be classified as terrorists for the SUA Act to apply. Although the SUA Convention was passed with the goal of suppressing international terrorism in mind,[2] the Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that if “any person” “performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” that person has committed “an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act under Indian law.[3]
The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.
But Justice Gopinathan’s response to Mr. Matthew’s good faith legal claim was far more dubious than the claim itself. Rather than satisfying himself by pointing out that an individual need not be legally classified as a terrorist for the SUA Act to apply, Justice Gopinathan declared by fiat, and counter to all reason, that the Italian marines had indeed committed “an act of terrorism.”
Though some argue that there is simply no internationally recognized definition of terrorism,[4] Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism “has gradually emerged” in customary international law.[5] According to the STL, terrorism is defined under customary international law as consisting of the following three elements:
(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.
Of the three enumerated elements, only the third, that the act must involve a transnational element, is clearly present. As for the second, there is no way to argue that the Italian marines fired upon the Indian vessel to spread fear among the Indian population or coerce the Indian government. They were acting as agents of the Italian government charged with the protection of a merchant vessel from the real and credible threat of maritime piracy. The unfortunate deaths of two fishermen do not change the character of the marines’ actions. Finally, it is presently impossible to know whether the Italians’ acts could be considered “murder” under the first prong. That determination can only be made once a competent tribunal establishes that the Italians were in fact the ones who shot the Indians and entertains any affirmative claim of self-defense made by the marines.
Furthermore, the alleged acts of the marines fails to satisfy even the minimal, “core definition” of terrorism proposed by Professor Marcello Di Filippo in the European Journal of International Law.[6] After surveying relevant international and domestic laws and sloughing aside any contested definitional aspect of terrorism, Professor Di Filippo concludes that an act of terrorism requires, at the very least: (i) an act of violence; (ii) when that act is targeted at civilians.[7] According to Di Filippo, this core definition is the absolute minimum standard under which an act could be properly considered terrorism.
Implicit in Di Filippo’s core definition is the requirement that the actor must at least believe that the targets are civilians, and one could even argue that the actor must intend to target the victims because they are civilians. Thus unless the Indian authorities can prove, at minimum, that the Italians knew that the Indians were unarmed before firing upon them, the acts of the marines do not rise to the level of terrorism. Justice Gopinathan’s statement that the marines committed a “terrorist act” accuses the Italians of a crime that does not exist – negligent or reckless terrorism.
An oral pronouncement by a Justice with no legal ramifications is hardly a groundbreaking development in what will surely be an interesting case. It does illustrate the depth of mistrust between the Italians and Indians in this particular instance, with the Italians accusing the Indians of a vast conspiracy involving fabricated evidence and the Indians accusing the Italians of murder and now, apparently, terrorism. We are therefore back where we started: waiting for the results of the ballistics report and hoping, perhaps against the available evidence, that cooler heads will prevail and due process will be afforded to all.
[1] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002
[2] The Preamble of the SUA Convention notes that the state parties are “DEEPLY CONCERNED about the world-wide escalation of acts of terrorism in all its forms.”
[3] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No. 69 of 2002, art. 3(1)(a) (Dec. 20, 2002).
[4] Jean-Marc Sorel, Some Questions About Terrorism and the Fight Against its Financing, 14 Eur. J Int’l L. 365, 368 (2003) (describing the “confused mix” of definitions).
[5] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, at para. 83 (Feb. 16, 2011), available at http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11-01_R176bis_F0010_AC_Interlocutory_Decision_Filed_EN.pdf
[6] Marcello Di Filippo, Terrorist Crimes and International Co-Operation: Critical Remarks on the Definition of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008).
[7] Id. at 558-61.
Roger L. Phillips
Hilarie Henry
Jon Bellish
Matteo Crippa
Milena Sterio
Shannon Maree Torrens
sonia messaoudi
Michael Y. Liu
Communis Hostis Omnium 
Dear Jon, What would feel if two highly trained marksmen fired at you using an assault rifle
Whether it is terrorist act or murder due to mistaken identity or whatever it might be, before the trial is over and guilt by the accused has been established how a judge can say that ‘the killing is a terrorist act’. First establish that the marines killed the fishermen.
My doubt is on what ground is the ship, the captain and the rest of the crew is detained-indefinitely? The marines have been accused of the killing have been arrested and are in judicial custody now. Why others are detained. The ship was anchored at Kochi for more than one and a half month and has been at the disposal of the police for any search. It has been searched and the guns found in it has been sent for forensic tests some 45 days ago. Even after this much time the forensic tests have not been over. The captain and crew must have been questioned and their statements taken ( One has to assume so). Then why not release the ship and crew and captain? If the alleged shots were fired from the ship is it necessary for the ship to be produced at the time of trial? If a murder takes place in a building or by shots fired from a building is the building brought for trial? Is not photographs of the location from which the shots were fired sufficient? If the ship’s owners deposit Rs.3 crores with Cochin Port Trust is it not sufficient to give compensation to the families of the victims? Also why the court is entertaining the petition of the families for not allowing the ship to sail?
The judge has not sentenced the accused, they are innocent until proven guilty.
In same light, judges say in many cases that ” its an act of murder….”.
There is a difference between saying that’ it is an act of terrorism’ and that ‘they are terrorists’.
I cannot agree with you here. A person is not a terrorist until he has committed an act of terror just as a person is not a murderer until he commits an act of murder. In my opinion, a mere insertion of the word “alleged” into Justice Gopinathan’s comments would have gone a long way.
If I were in the Italian marines’ shoes and my presiding justice made similar comments, I would not feel innocent until proven guilty.
The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE were answered by the relatives of the dead fishermen in Court basing on Sec.3 of the Indian Penal Code and two specific statutes that are in force in India.
The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).
A conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines.
Let us examine the provisions closely.
Sec. 3 of the Indian Penal Code reads as follows:
Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)
Section 3 of the Penal Code reproduced above has the following attributes:
(a) It applies to all persons including foreigners and is not confined to citizens of India.
(b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
(c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
(d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.
Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.
The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.
Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:
Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-
Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.
The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.
In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.
The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.
The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.
Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:
Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
(1) Whoever unlawfully and intentionally-
(a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
(b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
(c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;
Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
(g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
(i) causes death to any person shall be punished with death;
(ii) ……;
(iii) ……;
(iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
(v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
(emphasis supplied)
Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
(a) …;
(b) …; or
(c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)
Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. The said provision which shifts the burden of proof on to the accused could make the criminal trial a very arduous one for the accused.
In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.
However as on date the Government of India under pressure from powers that be within and outside India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused so that the Courts in India will after a point be compelled to acquit the Italians.
So far the modus operandi planned to save the Italians and executed by the Government of India and the Government of Kerala are going ahead well. In few days time the highest courts in India, notwithstanding the above said clear legal provisions, will be compelled to acquit the two Italian marines as well as permit the vessel ENRICA LEXIE to sail out of India.
The real losers in this entire episode will be the relatives of the dead fishermen, two minor girls whose parents are already dead and now their only brother shot dead by Italians and another family with a widow who has to bring up her minor children all by herself. The Indian legal system will stand shamed and ridiculed for failing to render justice to its citizens though there were ample provisions in the book which though the government failed to invoke.
Republic of Italy should thank the Government of India and the Government of Kerala State for foresaking its own citizens and making a scarecrow of its own judicial system. Where is the Gift?
(Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)
Mr.Shyam Kumar, I am not a person conversant with legal matters and do not have any personal interest in this matter. Just out of curiosity and you being a man of law I an asking these doubts. It pertains to this Enrica Lexie shooting and collision of MV Prabhu Daya with a fishing boat.
In the case of Prabhu Daya as per reports there has been some sort of understanding has been achieved between the relatives of the fishermen who were drowned and the owners of the ship regarding compensation for the bereaved families. Does it mean that the families will get compensation before the case is settled? The ship collided with the boat which is a criminal act and irrespective of the civil aspect where the compensation is settled the criminal proceedings have to be completed. So is it that the compensation will be paid after the settlement of the criminal case? If the compensation is given before hand and in the end the criminal case could not establish that it was Prabhu Daya which had collided with the boat but some other ships which were also in the vicinity, will it not be a case where the owners of the ship was unjustly made to pay compensation. So will the payment of compensation wait till the criminal case against the ship Prabhu Daya is established? The dents on the ship and portions of net are not conclusive proofs. A ship which had preceded Prabhu Daya could have knocked it and drowned. Some portions of the net could have been floating on the sea and when Prabhu Daya came in the same route could have entangled with its propeller. And the dents could have happened sometimes earlier. Were there any paints which was on the boat sticking on the ship? If Prabhu Daya establishes that it was somewhere else at the time of collision as per the electronic monitoring equipments which all ships should have how the ship can be punished? Settling the civil case before the criminal case is not proper. First the crime should be established I think.
Now regarding Enrica Lexie. As per the laws you have quoted there cannot be any question about India’s jurisdiction to try the case. Whether the ship was fifty nautical miles from the shore or 250 miles from the shore it is Indian government who should prosecute the case. But here also there are reports of the parties that is the relatives of the killed fishermen and ship’s owners trying to come to an understanding regarding the compensation to be paid to the bereaved family. And I have the same doubts I raised on the affair of MV Prabhu Daya. Here also the the alleged killers have not been yet charged. Investigations are still going on. So I repeat how the compensation can be settled at this stage? The police have taken some guns from the ship some 45 days ago. Still forensic examination is going on. Is it not really scandalous that the police have got the guns suspected to be the ones used for shooting and still could not establish it? Why the police cannot call other experts who are more experienced and competent? Even take help from Scotland Yard or FBI. The guns are yet to be identified. Now if the ship proves from its record that it was some other place at the time of shooting from its electronic data. I think apart from VDR which keeps data of only for 12 hrs at a time there are other electronic navigation equipment which send data of its position, speed and many other things on FM. These data are received by any ship in the vicinity and shore stations which have receiver. If it is proved that the ship was elsewhere the case will have to be closed unsolved. Also it may so happen that the crew of the boat must have got confused about the position and time of shooting. A good defense lawyer will make a mince meat of the illiterate crew. The boat could not have a GPS or the crew would have looked at their watch when the shooting took place. It is not yet time for Kerala government to feel smug. There can be many a slip between the cup and lip.
Now you have told the pathetic state of the families of the killed fishermen. Yes I agree. BUT what about the soldiers who get killed by the bullets of terrorists in Kashmir. Do the families of those soldiers get such huge sums the families of these fishermen are demanding? If instead of the fishermen getting shot and killed but their boat capsized do they get all these lakhs? Same case for the fishermen of Prabhu Daya. If their boat has capsized in a storm, what the families will get? These families are demanding money just because the other party is rich enough. What about those hundreds who get killed in accidents and like that? What compensation they get. Don’t those get killed also have their poor families of children siblings? I have sympathy for them. But they are just one among millions and they don’t deserve any special sympathy. The whole thing has got all this publicity because the government of Kerala is playing to the gallery.