100 replies to this topic

[Aeros]

Get ready for this weeks "Today in International Law". The tl;dr, 2 Italian Marines as part of their countries counter piracy activities in the Indian Ocean killed 2 Indian Fishermen. The incident happened in International Waters, and ended up with the Italians in Indian custody. The Italian Ambassador managed to secure the Marines release and repatriation to Italy on the grounds that they should be allowed to vote in the Italian Election and offered an assurance they would return. Italian Prime Minister greets the Marines on the Tarmac in Rome and the Italian Government promptly tells India to get f'ed on the issue of sending the Marines back to India. India goes ape, and has now prohibited the Italian Ambassador from leaving and claims him sending a letter to their court means he accepts their jurisdiction over him. Italy is now notifying the European Commission of Indias breach of the Vienna Protocols. 

 

Fun stuff. 

 

http://www.bbc.co.uk...-india-21787357

[Icewolf]

The ambassador cannot revoke his own immunity. Only his home state can. 

 

So an ambassador could stand on the steps of the court and scream "I killed him, prosecute me." Unless his government agrees, he still has immunity. 

Edited by Icewolf, 14 March 2013 - 01:47 PM.

[Omniscient1]

Interesting stuff.

[The Disco Commandant]

India didn't have jurisdiction over anything to begin with. Unless I'm entirely misunderstanding laws governing International Waters

[Ogaden]

Didn't anyone tell India that Italy has overseas voting

[Aeros]

In olden times this would have been a good old fashioned CB. However, since neither India nor Italy have the ability to attack each other, the most they can do is thump their chests and try and convince countries that matter that they are in the right. of course, the United States is not going to support India on this, now that they've acted against an Ambassador. The US has thousands of troops in foreign countries and we will not support a precedent where detaining diplomats for the actions of some low ranking soldiers can be considered a good idea. If anything the US will side with Italy for that very issue. 

Edited by Aeros, 14 March 2013 - 04:24 PM.

[Hereno]

The Italian Ambassador managed to secure the Marines release and
repatriation to Italy on the grounds that they should be allowed to vote
in the Italian Election and offered an assurance they would return.
Italian Prime Minister greets the Marines on the Tarmac in Rome and the
Italian Government promptly tells India to get f'ed on the issue

 

Did India really believe they would come back? Holy !@#$, how !@#$@#$ dense are they?

[Aeros]

Really, the only options open to India now is to take the case before the International Court of Justice. They can argue the Ambassadors assurance to an Indian Court that the Marines would be returned to India constituted a legally binding pact between India and Italy. If the ICJ does in fact view this as a binding agreement, they could compel Italy to return the Marines to India. Obviously, Italy would not be obligated to do so, but the screws would be turned, particularly from their own allies (Like the US and Germany). 

 

of course, this would be the smart thing to do. less smart, going after the ambassador. That's a dead end and India is going to lose on that score. 

[Jyrinx]

First and foremost, it has not been established that the incident did indeed take place in international waters with India strongly disputing that and even providing the exact coordinates as to where it happened. While Italy is free to argue the point, the OP is very misleading by implying that all sides are in support of Italy's view.

 

Also, even if the incident did happen in international waters that doesn't preclude India having jurisdiction based on its nationals being harmed (the "passive personality principle" which the US not only accepts but has also used before in federal trials to prosecute individuals). The US would be incredibly hypocritical to deny Indian jurisdiction utilizing the same principle that the US uses.

 

I think we can all agree that it's very underhanded move for an ambassador to go out of his way to make assurances to the supreme judicial authority of another country and then reneg just because he feels like it. We should not be making Italy out to be the victim here.

 

In response that Ambassadors cannot revoke their own immunity: technically correct, but if the ambassador subjected himself to the courts jurisdiction by making legal assurances, and that course of action was pre-approved by the home government, then it could be argued that immunity was waived. I wouldn't accept that but I can see the case. And after breaching all diplomatic norms I hardly think Italy is in any position to say anything.

[Aeros]

At this point, both sides will claim the opposite. Italy will insist the incident happened in International Waters, and India will claim the opposite. Passive Personality only applies if the agents involved (i,e, citizens) are not acting in a State capacity. Uniformed soldiers, as these marines are, act in the name of the State. Crimes occurring through the discharge of their official duties do not automatically give jurisdiction to the aggrieved state. The matter of where the incident took place is now immaterial as the marines are now in Italy, not India. Italy now has as much a right to try the individuals as India does under International Law.

 

Simply put, its a losing argument for India to try and claim the upper hand on this issue as a matter of Jurisdiction, unless they can prove definitely the incident occurred inside their territorial waters, which is something I find unlikely given the circumstances. 

 

And their is no "Technically Correct" to the issue of Ambassadorial inviolability  These Marines could have raped young girls and eaten them, and nobody would dispute Indias right to charge them. But going after the Ambassador for it will open a !@#$ storm, and nobody will condone it. 

Edited by Aeros, 14 March 2013 - 05:30 PM.

[Jyrinx]

Oh I actually agree on the ambassador thing. I just won't shed a tear for the Italians if the Indians actually do do that though; even if the Italians are right on that, they've done nothing to earn sympathy from anyone through their actions. I also think the Italians are really underestimating how much they too have been harmed by this; their word will count for practically nothing for in any foreign criminal case from now on anywhere where "assurances" are given. I hope it was worth it for these two.

 

And while I'll freely admit I'm no expert, I thought the military personnel operating in international waters thing only applied to personnel operating on vessels that themselves are deemed warships or registered as part of the armed forces of another nation. Do military personnel operating on a civilian vessel actually enjoy those rights?

[the rebel]

Does it really matter if the incident happened in international waters? Its like for instance if a Chinese cargo ship's armed guard killed some American fishermen in international waters, would America just let them sail away? Probably not.

 

Edit: though will be interesting what the international lawyers say whether or not a Diplomat can revoke their own immunity...

Edited by the rebel, 14 March 2013 - 06:24 PM.

[Omniscient1]

Can civilians legally carry weapons in international waters? For some reason, I thought that was illegal.

[Hereno]

Can civilians legally carry weapons in international waters? For some reason, I thought that was illegal.

 

They are international waters so I don't see why not.

[Aeros]

In International Law, jurisdiction is established by several key factors in order of precedence

 

1. The Location of the Crime

 

2. The State Harmed by the Action

 

3. The Citizenship of those Involved

 

4. Universal Jurisdiction 

 

In this case, as in any crime, the clincher is where the crime took place. Establishing Jurisdiction on the matter is critical. If an incident occurs in International Waters, Jurisdiction defaults to the flag of the victimized ship. This Precedent was established when the United States sank a Canadian Flagged merchant vessel that was smuggling rum. While the Vessel was breaking US laws, the sinking occurred in International Waters. Therefore  whatever laws the US had on the matter of smuggling were immaterial. America was guilty of a crime against the Canadian State, not the other way around, and was forced to pay reparations to His Majesties Canadian Government for the value of the ship. Thankfully, nobody died in the incident. If they had, not only would the US have been liable for destroyed Canadian Property, the Captain of the ship would have been liable for Murder in Canada, as the incident occured "in Canada" in the sense that the ship was flagged in Canada. 

 

http://www.canadiang...e/ss-alone.html

 

This is what essentially puts Italy in the wrong, as a matter of natural jurisdiction. However, the situation is complicated by the fact that the Marines claim they did not know the ship was Indian Flagged. The SS I'm Alone was clearly marked as a Canadian ship and was flying its flag. However, I doubt this fishermans ship was flying the flag of India at the time of the Incident. In International Law, it is critical that all markings of the State be clearly delineated. be it a border, a military uniform, a State Agents Identification card, or even its flag. If the Fishing Ship was not flying the flag of India at the time of the incident, there can be no just cause to believe the Marines thought the Ship was Indian at the time of the crime. 

 

If that is the case, we must default to Juris Sanguinis, i.e., the blood, or citizenship of those involved. In this case, the victims are Indian Citizens, and the plaintiffs are Italian Citizens, who were acting in the name of the Italian State in the discharge of their official state duties. This means their is equal jurisdiction for both India and Italy. In essence, whoever has those involved in custody will have the strongest claim. Since Italy presently holds the Marines, it is up to Italy what should happen to them. While India was indeed harmed by the incident, the fact that the harm occured at the hands of a State actor, mainly, Italian Soldiers, means we cannot give credence to India's claim of aggrievement, without first gaining the consent of Italy which obviously has not been given. 

 

Thus, we have the matter of Universal Jurisdiction, which is, crimes against humaity, violations of the laws of war, and other major crimes of International Law, being so against the norms of nations mean any nation can prosecute. This matter clearly does not meet this high barrier.

 

For these reasons, India cannot get these Marines back, using International Law, on the subject of Jurisdiction. Italy clearly holds Jurisdiction, by matter of them holding the Marines, unless India can decisively prove Italy invaded their territorial waters, which as I said, is unlikely. 

Edited by Aeros, 14 March 2013 - 08:47 PM.

[commander thrawn]

Blah blah blah no one cares cause tin pot dicatorships were involved. lol Italy. and India.

[Icewolf]

In International Law, jurisdiction is established by several key factors in order of precedence

 

1. The Location of the Crime

 

2. The State Harmed by the Action

 

3. The Citizenship of those Involved

 

4. Universal Jurisdiction 

 

In this case, as in any crime, the clincher is where the crime took place. Establishing Jurisdiction on the matter is critical. If an incident occurs in International Waters, Jurisdiction defaults to the flag of the victimized ship. This Precedent was established when the United States sank a Canadian Flagged merchant vessel that was smuggling rum. While the Vessel was breaking US laws, the sinking occurred in International Waters. Therefore  whatever laws the US had on the matter of smuggling were immaterial. America was guilty of a crime against the Canadian State, not the other way around, and was forced to pay reparations to His Majesties Canadian Government for the value of the ship. Thankfully, nobody died in the incident. If they had, not only would the US have been liable for destroyed Canadian Property, the Captain of the ship would have been liable for Murder in Canada, as the incident occured "in Canada" in the sense that the ship was flagged in Canada. 

 

http://www.canadiang...e/ss-alone.html

 

This is what essentially puts Italy in the wrong, as a matter of natural jurisdiction. However, the situation is complicated by the fact that the Marines claim they did not know the ship was Indian Flagged. The SS I'm Alone was clearly marked as a Canadian ship and was flying its flag. However, I doubt this fishermans ship was flying the flag of India at the time of the Incident. In International Law, it is critical that all markings of the State be clearly delineated. be it a border, a military uniform, a State Agents Identification card, or even its flag. If the Fishing Ship was not flying the flag of India at the time of the incident, there can be no just cause to believe the Marines thought the Ship was Indian at the time of the crime. 

That case predates the Conventions on the Law of the Sea. It was overruled in the 1958 convention, in a provision carried through to The United Nations Convention on the Law of the Sea 1982, Article 92. If this took place on the High Seas then Italy has exclusive jurisdiction over the matter. 

 

Add in article 95 that emphasises that warships on the High Seas have complete immunity. 

 

If it was in the territorial waters then it has to obey India and leave if requires, and Article 30 places liability on Italy for the harm caused. However It retains its immunity under Article 32.

 

India has no Jurisdiction over the soldiers without the permission of Italy. 

 

Note, for this purpose I believe that the Exclusive Economic Zone counts as part of the High Seas, so unless the incident was within 12 nautical miles of Indian land (as I do not believe it regards itself as an Achipelagic state) then the Article 92 rules apply.

[Golan 1st]

Most, if not all, nations prosecute people who harm their citizens abroad. So this is definitely not the problem with what india did.

Since the offenders were servicemen of another country with whom India has friendly realtions, the whole matter should have been dealt with diplomatically. By diplomatically I don't mean the Italian ambassador lying to the Indian authorities, but negotiations aimed to reach an agreement about the place where they would be tried.

Both countries are on the wrong. Ambassadors are not supposed to abuse the trust of the host nation and the host nation just cannot "detain" diplomats.

IIRC, last time a nation stopped diplomats from freely leaving was Iraq before the first gulf war and that did not end well for them (though, admittedly, the diplomats were not the reason).

[Ogaden]

Well the other issue is that a lot of countries have their own ideas about what their territorial waters are.

 

India is one of the countries that claims a contiguous zone out to 44 km from shore, a claim they submitted in 11 May 2009, but they also claim sovereignty over their EEZ

 

From India's point of view, this is their territorial waters:

Edited by Ogaden, 15 March 2013 - 05:00 PM.

[NewPoseidon]

It seems that the Italian government broke it's word on an issue related to the death of Indian citizens.  Holding the Italian envoy under house arrest for a few weeks might be appropriate under the circumstances.  Keep in mind that internal politics demands some form of reprisal on the part of the Indian government.  They've got to punish Italy somehow, and this could be the best means as it doesn't result in any real economic damage.