Enrica Lexie, Killing of Indian Fishermen and Somali Piracy

Prabir Purkayastha, March 3, 2012

The killing of two innocent fisherman by two marines aboard the Italian tanker Enrica Lexie, has resulted in nationalist sentiments being raised on both sides. What should have been a simple matter of who has legal jurisdiction to try the two, has now been escalated to a diplomatic issue.
The latest is the Defence Minister Giampaolo Di Paola stating that India must show respect to Italy and international law. He went on to say how the two soldiers “ were doing their duty and protecting not just the ship but also the 19 crew members on board,” a strange argument considering that the fishermen were unarmed and certainly not a threat to Enrica Lexie.
In all this din about who has the right to try the Italian soldiers, the much larger question of Somali piracy and the danger of putting armed guards on board of merchant vessels have been lost sight of. The collapse of the Somalian state has been regarded as of importaance only because it threatens the trillion dollar maritime industry. And the only response the international community has been to treat this as mere law an order issue; put armed guards on ships and deploy naval vessels of maritime powers off the coast of Somalis. That originally, piracy sprang from illegal fishing of Somali waters and dumping of toxic wastes there causing the complete collapse of the fishing industry, has attracted very little attention. Instead, various countries are patting themselves on their respective patriotic backs on the “brave” conduct of their navies in attacking lightly armed Somali pirates.
The Enrica Lexie case brings out is the threat of putting trigger happy armed guards on board of merchant ships. It also bears out what the Somali fishermen having being saying all along, that they are quite often the victims of unprovoked killings.
What happened at sea on the February 15 off the coast of Kollam, which lead to the death of Jelestine and Ajesh Binku on the fishing vessel St. Anthony will be decided by a court. At the moment, the controversy is not around what the facts of the case are, but who has the right to try the two marines, Latore Massimiliano and Salvatore Girone. The high voltage campaign that Italy has launched with an array of senior and junior ministers, has been on this issue. They have also tried to rope in the Vatican and a newly ordained cardinal from Kerala to argue that the case be settled “amicably” by paying some compensation, forgetting that this is criminal case.
The issue of compensation to the family of the victims and the owners of the fishing vessel is extraneous to the criminal case in the court of First Class Judicial Magistrate in Kollam. The Italian Consul General has moved the Kerala High Court, asking that the criminal case be quashed as it believes only an Italian Court has the right to try the two marines under the UN Convention of Law of the Seas (UNCLOS). The Kerala High Court will decide the law in this case. If the Italian Government disagree with its verdict, can then appeal to the Supreme Court and if need be, take it to an international forum – the International Court of Justice.

The jurisdiction issue is not as simple as the Italian Government thinks. If the Italian vessel Enrica Lexie is Italian territory, so is St. Anthony, the Indian vessel, Indian territory. The question then hinges around where has the crime been committed – on Enrica Lexie or on St. Anthony. Since the fishermen have died on St. Anthony, consequently Indian territory, there is absolutely no doubt that a part of the crime took place in Indian territory. So by the virtue of the same UN Convention that Italy is quoting, India can also claim that the crime took place in Indian territory and therefore India has jurisdiction over the Italian marines.

Apart from UNCLOS, there is also Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation (SUA Convention). Commentators now agree that if UCLOS and SUA are read together, it will become clear that both India and Italy have valid grounds for claiming jurisdiction.
Jon Bellish has brought out a case involving France and Turkey was fought on a similar question in 1927 in International Court of Justice, where France objected to a captain of a French vessel being tried in Turkey with very similar legal arguments. The Lotus verdict however, went in favour of Turkey. If a crime involving two vessels takes place, the jurisdiction of one side is as not clear as Italy would like to believe.
This issue, even if it raises nationalist temperatures on both sides, should not be viewed through any other prism except that of law. Wisdom lies with law being allowed to take its own course. At the moment, Indian laws will operate as the case has been filed in India and the marines are in Indian custody. There is no legal way that the Indian Government – even if it wants to – can hand over the marines to Italy without going through the due process of law. This is apart from the emotions it has roused in Kerala and in rest of the country. The rest is atmospherics; the crux of the matter is that the issue is now with the courts and that is where it belongs. It has nothing to do with India's respect for Italy or international law as Di Paola, Italy's Defence Minister claims.
What is disturbing about the investigations of the case is that Voice Data Recorder's record of the incident seems to have been overwritten. Considering that the ship had reported the incident to the Italian navy, how the data of this incident could have been overwritten is a serious matter. The data would have shown whether the Master of Enrica Lexie was a party to the decision to open fire, whether all the measures that have been prescribed under the Best Management Practices by the international maritime bodies were followed or not. It certainly calls into question the conduct of the ship's Master, and why no charges have been filed against him. Unless shown otherwise, the Master is responsible for all acts carried out by the armed guards on his ship.
Enrica Lexie incident has brought out in public the deep disquiet that a number of experts have harboured about the policy of putting armed guards on ships. It also calls into question the entire policy of containing Somali piracy and treating it as a merely one of policing of international waters.
Piracy does not happen only at sea. It originates on land and unless the larger issue of Somali state's failure is addressed, piracy is not going to go away.
Somalia has the longest coastline in Africa of over 3,300 kilometres. It has rich marine resources, particularly of tuna and mackerel. Puntland, a region in Somalia with about 1,100 km of coasts, had over 80% of fisher-folk of Somalia and this the area from which the Somali piracy originated. It is now well attested that Somali fishermen took to arms only when foreign mechanised fishing fleet descended on its undefended waters after the collapse of the Said Barre Government in 1991. As Somalian authorities collapsed, the Somali waters became a bonanza for fishing fleets from Europe and Asia. As did the illegal dumping of toxic wastes in Somalian waters. Reports indicate that in Bosaso (formerly Bander Cassim), the major port in Puntland and its largest fishing centre, the catch has been reduced by 90-95% from that in the 80's.
Many of the fisherman have now given up fishing as they are victims of violence from all three – armed mechanised trawlers, pirates and military vessels.
The comparative statistics of revenue from piracy are also interesting. International piracy has caused an estimated loss of about $ 7 billion in 2011 globally. This includes all regions including Malacca Straits, the other hot spot for piracy. As against this, “the total value of current illegal and unreported fishing losses worldwide are between $10 bn and $23.5 bn annually, representing between 11 and 26 million tonnes”. This other piracy is discussed in the United Nations and in various reports, but no action is proposed. As Suzanne Dershowitz and James Paul note “..by punishing one crime and turning a blind eye to another, the Council is deepening the very crisis it is supposedly trying to solve.”
The other interesting statistics is who gets the revenue from increased piracy. While the total ransom paid to the Somali pirates was around $160 million, the $ 7 billion of the loss is actually a revenue for insurance companies, security agencies and a host of others who have sprung up as an industry around piracy. In other words, the Somali pirates get only 2% of the “revenue” in the industry that they have “created”!
It will be wrong to think that today Somali piracy is only that of fishermen, who have lost their livelihood. It is becoming an “industry” and is attracting a different set of actors. But none of it can be handled by thinking it as one of just policing the seas. Semi autonomous governments have now sprung up in Somaliland, Puntland and other areas in Somalia. Pending putting back Humpty Dumpty of the Somali state together again, at least in the short run, the international community needs to work with these semi autonomous governments. And if it has to have credibility with the Somali people, it must address the other piracy – illegal fishing . Without this, it will be seen to be against only one set of pirates while supporting the other.
The problem of the globalised world is that it also globalises the problems. It is no longer possible to ignore failed states. If we shut our eyes to problems of different regions, they will come back and bite us where we sit. This is the simple lesson from Enrica Lexie. Whether India or Italy learns from this is another matter.




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