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.
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.