Tuesday, November 17, 2015

Paris 13/11 - An Analysis

This post looks into the possible lapses in intelligence, post-attack investigation and measures that may be taken to prevent another 13/11.

Investigation into Friday the 13th massacre made considerable headway with the names and identities of some of the suspects who took part in the attack was disclosed by the security agencies. Few of the suspects were either French or Belgian nationals and who appeared to have some kind of criminal antecedents.

The Suspects with connections to France/Belgium

Bilal Hadfi, a Belgian resident aged about 19 or 20 went under the names "Abu Moudjahid Al-Belgiki" and "Bilal Al Mouhajir," has been identified as one of the three suicide bombers who struck outside the Stade de France. 

Samy Amimour, a French national, aged about 28 years was born in Drancy, a north-eastern suburb of Paris was one of the suicide bombers who blew himself up at the Bataclan Concert Hall.

Ismael Omar Mostefai, aged 29 years, was a resident of Chartres, France who blew himself up at the Bataclan Concert Hall. "He was considered a radicalized person and had a security report," Paris prosecutor François Molins said. A Turkish official told the Guardian that French authorities were tipped off twice about Mostefai by Turkey, but only received an information request about him after the Paris attacks.

Ibrahim Abdeslam was a 31 year old suicide bomber who blew himself at the Comptoir Voltaire cafe on Boulevard Voltaire.

Saleh Abdelam aged 26, a Belgian-born French national and brother of Ibrahim  who escaped from the scene of the attacks. He is suspected to have rented a car used by the group.

Intelligence Lapses?  And The Molenbeek Angle

According to the Associated Press, Iraqi intelligence sent a dispatch saying the group's leader, Abu Bakr al-Baghdadi, had ordered an attack on coalition countries fighting against them in Iraq and Syria, as well as on Iran and Russia, through bombings or other attacks in the days ahead. 

The dispatch said the Iraqis had no specific details on when or where the attack would take place, and a senior French security official told the AP that French intelligence gets this kind of communication "all the time" and "every day." 

Without commenting specifically on the Iraqi warning, a senior U.S. intelligence official said he was not aware of any threat information sent to Western governments that was specific enough to have thwarted the Paris attacks. Officials from the US, French and other Western governments have expressed worries for months about Islamic State-inspired attacks by militants who fought in Syria, the official noted. In recent weeks, the sense of danger had spiked. 

According to the Iraqis the Paris attacks appear to have been planned in Raqqa, Syria — the Islamic State's de-facto capital — where the attackers were trained specifically for this operation and with the intention of sending them to France. The Iraqi officials also said a sleeper cell in France then met with the attackers after their training and helped them to execute the plan.There were 24 people involved in the operation, they said: 19 attackers and five others in charge of logistics and planning. It appears that though the timing of the attacks may not have been known, the fact that an attack on Paris was imminent was known to the French. While it may be unfair to accuse the French intelligence of lapses, the security agencies could have increased surveillance of known terror suspects both in France and Belgium.

In the previous post a reference was made to Belgium because certain parts of Belgium had become a safe haven for jihadis owing allegiance to the Al Qaeda or the Islamic State.

Molenbeek, an impoverished suburb of Brussels  for instance has a large, predominantly Muslim population of first-, second- and third-generation immigrants from North Africa that has gained an unwelcome reputation as a hotbed of jihadism.

In January 2015, police raided a suspected IS terror cell in Verviers in Eastern Belgium and killed two suspects who were alleged to be on the brink of a major Paris-style attack. The cell members, including the man alleged to be orchestrating the plot from abroad, Belgian-Moroccan Abelhamid Abaaoud, belonged to the Molenbeek suburb. Incidentally, it is now being reported by The Independent that Abelhamid Abaaoud was the mastermind of the Paris attacks. The train gunman, Ayoub El Khazzani, 25, a Moroccan national who opened fire on a train from Paris to Amsterdam in August 2015 is also said to have spent time in Molenbeek prior to the attack.

The suspected master mind of the Paris attacks, Abaaoud, who authorities suspect orchestrated the Verviers plot from Greece, is believed to have joined ISIS in Syria in early 2014, according to CNN. At some point, his 13-year-old brother joined him there, becoming the youngest Belgian jihadist in Syria.

After the Verviers plot was foiled, Abaaoud evaded European authorities' efforts to apprehend him. He later was featured in an ISIS propaganda magazine, claiming to have returned to Syria.

The information about known suspects were available with Western intelligence agencies, but for reasons best known they were not collated properly. Like in the case of Mumbai, the security agencies failed to connect the dots and preempt the attacks.

Hitting back
There cannot be a hasty, haphazard response to the carnage. What is needed is a cool, calculated and ruthless retaliation which will ultimately deter potential terrorists from executing a similar strike on any city in the West. Most of the foot soldiers save and except one Saleh Abdelam are dead. The planners and those who provided logistical support are the ones who need to be neutralised. Firstly, it would be expected that French intelligence, both the DGSE and DGSI would activate their network of agents around Europe and beyond in order to track the organisers of the attacks. Secondly, friendly states and coalition partners of France would be providing inputs in order to help France and other states in preventing a repeat of 13/11. France must be willing to use its Special Forces both within France and beyond to eliminate terrorists, their sympathisers and financiers much like the Israeli special operation teams which liquidated members of the Black September Organisation. Given the chaotic situation in Syria, with requisite intelligence and logistical support, it would be viable to send Special Forces to carry out targetted killing of the leadership of the IS. The effectiveness of air strikes which are being carried out at present is extremely doubtful.

Secondly, France and the rest of the EU members must shut its doors on migrants who enter Europe under the guise of refugees. Given the nature of the prevailing political climate and the limited resources at its disposal, none of the members of the EU, barring Germany has the capability of monitoring potential risks posed by the so-called refugees to Europe's security. Human rights' activists and civil liberty groups may protest against such a policy, nevertheless, today with the very idea of Europe and its cherished values being under attack from a group like the IS, barbed-wire border controls are necessary.

Thirdly, France and other EU members must in concert strip all those individuals, who have travelled to Syria, Iraq, Somalia, Afghanistan to fight along side terror groups like the IS, Al Qaeda, Al-Shabaab, Taliban or other Islamist groups of citizenship. The families of these terrorists must also be deported to their country of origin. 


French intelligence may not have had specific intelligence about the scale or nature of the attacks. However, the authorities were aware that an attack was likely especially attacks by lone wolves like Chérif Kouachi and Said Kouachi (Charlie Hebdo shootings), Amedy Coulibaly (Fontenay-aux-Roses, Porte de Vincennes) and Ayoub El Khazzani (train gunman) had taken place. At the same time, the terrorists failed in their plans to storm the Stade de France. Had they succeeded, the scale of the massacre would have been much greater. The French police and SWAT teams did well in rescuing hostages from the Bataclan Concert Hall. 
All said and done neither France nor its European Union partners have the means and resources or requisite laws to enable it to take wide-sweeping preventive measures - often based on sketchy intelligence - that  probably the US can.

And fail-safe operational monitoring of the sheer number of potential threats on European soil, in the form of sympathisers with groups like ISIS, many of whom have actually travelled to Syria and spent time with the group, is extremely difficult for any security service.

[At the time of writing, it has been reported that French police have continued their hunt for Salah Abdeslam believed to be one of the three brothers involved in Friday night’s attack, who is on the run – and others thought to have been involved in orchestrating the attacks on Paris on Friday.

Overnight raids have taken place in Toulouse, Grenoble, Jeumont (on the French-Belgian border), and the Paris suburb of Bobigny. The raids were carried out under the national state of emergency declared by the president, François Hollande. At least one, in Bobigny, is reported to be directly linked to the Paris attacks.

Several arrests have been reported across those locations, with buildings searched. Weapons were reportedly seized in Toulouse].

Saturday, November 14, 2015

Paris 13/11

(Source: STRATFOR)

About seven years ago, ten Pakistan’s ISI-sponsored terrorists belonging to the Hafeez Saeed-led Lashar-e-Taiba attacked India’s financial capital Mumbai and caused mayhem leaving about 170 dead and scores injured. The attacks which were coordinated and targeted multiple locations lasted for about 60 hours. It came to be known as Mumbai 26/11. On Friday 13th November 2015 about eight member fedayeen squad belonging to the Islamic State or ISIS in a manner similar to the November 2008 Mumbai attacks carried out suicide attacks at six sites in the French capital Paris, including a concert hall (where the casualties were reported to be in excess of 80 dead and several injured) and a sports stadium where a soccer match was in progress between the national teams of France and Germany. Paris became a battle zone briefly; this was indeed Paris 13/11.

The Targets

The targets were not random, but carefully chosen by the terrorists. The targets were places where large number of people congregated for the purpose of entertainment, leisure or sports. They targeted young people enjoying a rock concert and ordinary city residents enjoying a Friday night out. In Mumbai too, while the iconic Taj and high-end hotels were targeted, terrorists also struck a South Mumbai Café and the CST Railway Station and attempted to kill patients in a hospital.

Beginning at 21.16 Central European Time (CET) three separate explosions and six mass shootings occurred, including bombings near the Stade de France in the northern suburb of Saint-Denis. The deadliest attack was at the Bataclan Theatre, among the best-known venues in eastern Paris, near the trendy Oberkampf area known for a vibrant nightlife, on Boulevard Voltaire in the 11th arrondissement where the California-based American rock band Eagles of Death Metal were playing to an audience of around 1,500. About an hour into the concert, four black-clad men with AK-47 assault rifles entered the hall. Witnesses heard shouts of “Allahu Akbar” just before the gunmen calmly and methodically opened fire into the crowd.  A witness said that he saw armed men enter the Bataclan, and two or three men not wearing masks fired indiscriminately on the crowd. The attackers also took hostages and engaged in a standoff with police until it was ended at 00.58 CET into the early hours of 14 November 2015. The attack lasted about 20 minutes, with witnesses reporting that the attackers also threw grenades into the crowd.

The first attacks occurred on the Rue Bichat and Rue Alibert, near the Canal Saint-Martin in the 10th arrondissement of Paris. Attackers shot at people outside Le Carillon, a café-bar, in the same general neighborhood as the Charlie Hebdo offices, at approximately 21.20 CET. They then crossed Rue Bichat and attacked Le Petit Cambodge (Little Cambodia), a restaurant, leaving between four and eleven people dead.  According to the French police, 11 people were killed at the restaurant. The assailants reportedly fled in one or two vehicles after the shootings. One of the vehicles was known to have had a Belgian number plate. Shots were fired at the terrace of La Casa Nostra, an Italian restaurant, in Rue de la Fontaine-au-Roi south of Rue Bichat, by a man wielding a machine gun.

Three explosions occurred near the Stade de France in the suburb of Saint-Denis, and resulted in at least five deaths. At least 10 people were injured or killed in an explosion at a bar near the stadium at approximately 21.30 CET, about twenty minutes after the kick-off in an international friendly soccer match between France and Germany which the President of France Francois Hollande was attending.

Two attackers fired for several minutes at the terrace of La Belle Équipe, a restaurant on the rue de Charonne in the 11th arrondissement of Paris before returning to their car and driving away at approximately 21.50 CET. At the time of writing this post, about 127 persons were killed, out of 352 persons injured about 100 sustained grievous and life-threatening injuries.   
The targets were not random, but carefully chosen by the terrorists. The targets were places where large number of people congregated for the purpose of entertainment, leisure or sports. They targeted young people enjoying a rock concert and ordinary city residents enjoying a Friday night out. In Mumbai too, while the iconic Taj and high-end hotels frequented by foreigners were targeted, terrorists also struck a South Mumbai Café and the CST Railway Station and attempted to kill patients in a hospital. They also attacked the Jewish Chhabad House and killed innocents.

Were the attacks inevitable?

Though the attacks were shocking, they should not have caught the French intelligence napping. Several French nationals of North African/Middle Eastern descent and from other EU countries were known to have travelled to Syria in order to fight either for the Islamic State or other terror groups in Syria/Iraq and the survivors would have returned home with skills to stage violence. The Charlie Hebdo attack which served as a wake-up call demonstrated that there was a constant risk of terror strikes in France and elsewhere in Europe.

Moreover, the country had witnessed several smaller-scale attacks or attempts since, including an incident on a high-speed train in August in which American travelers thwarted an attempted attack by a heavily armed man.

The French military’s participation in bombing Islamic State targets in Syria and Iraq and fighting extremists in Africa, and extremist groups have frequently threatened France in the past.

Brian Michael Jenkins, a terrorism expert and senior adviser to the president of the Washington-based RAND Corporation said the tactic used — "multiple attackers in coordinated attacks at multiple locations" — echoed recommendations published in the extremist group's online magazine, Dabbiq, over the summer.

"The big question on everyone's mind is, were these attackers, if they turn out to be connected to one of the groups in Syria, were they homegrown terrorists or were they returning fighters from having served" with the Islamic State group, Jenkins said. "That will be a huge question." The first important part of the post-attack investigation for the Direction générale de la sécurité intérieureDGSI would be to determine the identity of the attackers; whether they were French nationals or nationals of neighbouring countries like Belgium or were they illegally brought into France for the purpose of executing these strikes. (There have been reports that one of the killed terrorist was a French national). An equally important challenge would be to trace out the cell members or accomplices who gave the terrorists logistical support. The men who perpetrated and their accomplices who were possibly French or Belgian residents were highly trained and motivated. Again these issues have transnational repercussions because EU citizens can travel freely in the Schengen area. At the time of writing this post, France had closed its international borders. International borders cannot be kept closed permanently. There is a need to increase surveillance on minority groups in France, Belgium, Germany, and Netherlands and beyond. It is a nightmarish period for the French External Intelligence Agency, the  Direction générale de la sécurité extérieure DGSE. There is an urgent need for concerted effort to track the sleeper cells in these countries and members neutralized (liquidated).  In all likelihood the men who executed this operation had sufficient knowledge of the targets because it would be impossible to execute this kind of coordinated strike without reconnaissance.

Political Repercussions

The attacks will surely have serious political consequences. They come days before France's aircraft carrier, the Charles de Gaulle, is due to set sail for the Persian Gulf for actions against the Islamic State in Iraq and Syria. France has been carrying out airstrikes in Syria since late September. Since the Islamic State has claimed responsibility for the attacks and certainly appears to be a case of the attackers being IS members France will have little choice but to target the IS with vigour both within France in the form of a crackdown and militarily strike in Syria and Iraq at notwithstanding the fact that the Syrian battlefield in particular is becoming crowded and complicated.

France will have to seriously re-think and re-consider admitting so-called refugees from the troubled hot spots of North Africa and Middle East. While the German Government led by Ms Merkel has been foolish enough to allow and admit large number of migrants from Syria and other states in the region to enter Germany, this incident can be expected to strengthen the argument of those groups that have been calling for a halt in the flow of immigrants and the closing of borders in countries such as Germany, Sweden and much of Central and Eastern Europe

According to STRATFOR, in the wake of these attacks, Marine Le Pen and her far-right National Front party could see their popularity rise. Le Pen kept a low profile after the Charlie Hebdo shooting in January 2015 and still saw an increase in her party's popularity because of its longstanding anti-immigration stance. Hollande also saw a brief upward trend in popularity after the Charlie Hebdo attack because of his reaction to the events, but a repeat of this trend is not expected because people will now question whether the anti-terrorism measures that were approved this year actually worked. The leader of the center-right Republicans Party, Nicolas Sarkozy, also has a history of taking a strong stance on security issues; he was campaigning on the subject only last week.


Mumbai 26/11 had become a template for jihadis world-wide. If lessons of Mumbai 26/11 were learnt, France could have at least partially thwarted the designs of the terrorists. Of course, unlike Mumbai, the attacks ended within a few hours and the French Special Forces,RAID and SWAT teams deserve to be commended.

The Paris attacks only underscores that open societies / liberal democracies will continue to be susceptible to terrorism. Terrorists have often found it easier to carry out such dastardly attacks on the West as compared to, say, Moscow or Beijing.

Monday, September 7, 2015

Enrica Lexie - A Legal Perspective - 2

This post examines the question whether the two Italian marines are entitled to immunity from prosecution.

The principle of state immunity probably arises as a consequence of equality of states according to the rule “par in parem non habet imperium” – no state can claim jurisdiction over another. The jurisdictional immunity of foreign states has often also been variously – and often simultaneously – deduced not only from the principles of equality but also from the principles of independence and of dignity of states.[1]

The principles of international law regarding jurisdictional immunities of states have derived mainly from the judicial practice of individual nation. This first articulation of the principle of state immunity was recognized by the United States Supreme Court in its famous 1812 judgment of The Schooner Exchange v. McFaddon[2]. Chief Justice Marshall clearly enunciated the principle: “[The] full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him”. 

A theory that long prevailed, particularly in the UK that a foreign state could not be impleaded (i.e. sued) before a municipal tribunal under any circumstances. The doctrine of sovereign immunity was originally devised to uphold mutual respect between monarchs by according immunity to the exercise of their state functions within foreign jurisdictions. However, the 20th century saw the rise of industrial enterprises funded and controlled by the state: to accord immunity to such enterprises gave them an unfair commercial advantage and the absolute view of state immunity was gradually abandoned by the international community. 

A number of states started adopting the restrictive approach to immunity, allowing the exercise of jurisdiction over a state’s non-sovereign acts. The Austrian Supreme Court in 1950 concluded that in the light of increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer a rule of international law. A significant change in American policy regarding state immunity occurred in 1952, when the then acting legal adviser to the U.S. State Department, Jack B Tate wrote a letter to the acting Attorney General of the US wherein he indicated acceptance of the restrictive theory of immunity by the US government. He pointed out that the adoption of the restrictive theory by more and more countries justified the restrictions involved. He noted that henceforth from the view of the Department of State, “private activities of foreign sovereigns” should be denied immunity in American courts. In Victory Transport Inc v Comisaria General de Abastecimientos y Transportes (1964)[3] the State Department refused to issue a certificate of immunity because the government of Francisco Franco of Spain was the appellant/defendant. Lacking a determination from the State Department of sovereign immunity, the court developed a set of operational tests by which acta jure imperii might be determined:

“Since the State Department’s failure or refusal to suggest immunity is significant, we are disposed to deny a claim of sovereign immunity that has not been “recognized and allowed” by the State Department unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories:
1.       Internal administrative acts such as expulsion of an alien
2.      Legislative acts, such as nationalization
3.      Acts concerning the armed forces
4.      Acts concerning diplomatic activity
5.      Public loans”.

The ‘acts concerning armed forces’ is relevant in the context of the case involving Italian marines.

An alternative approach treats functional immunity as a distinct principle which is concerned with attribution of acts undertaken on behalf of a State. As the International Criminal Tribunal for the former Yugoslavia explained in the Blaškić case,

State officials acting in their official capacity ... are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’.  [Prosecutor v. Tihomir Blaskić (Judgment on the Request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997), (1997) 110 ILR 607 (ICTY Appeals Chamber), at para. 38 (emphasis added)].

The norms of customary international law concerning the functional (or ratione materiae)  immunity of State officials from foreign (criminal, civil and administrative) jurisdiction remain controversial and contemporary international law scholars still disagree about their scope of application and content.[4]

The United Nations’ International Law Commission (ILC) undertook a study on a key aspect of this topic, namely the functional (as well as personal) immunity of State officials from foreign criminal jurisdiction.[5] However, according to Mazzeschi, these works did not clarify the most controversial legal issues and further have not yet produced convincing results. In fact, both the ILC Special Rapporteurs have dogmatically accepted, without any form of critical review, the old ‘Kelsenian theory’, according to which all State officials have the right, in principle, to functional immunity from foreign jurisdiction regarding their ‘official’ acts, i.e., when acting in their official capacity.

According to the traditional long held view, functional immunity is based on the conceptual premise that acts performed by an agent in his/her official capacity and in the exercise of his/her duties cannot be attributed to the individual agent, but only and always to the State for which the official is acting. Therefore, functional immunity should not be procedural in nature, but rather should represent a substantive exemption from the law. This would mean that functional immunity is due to all foreign State officials and, at least in principle, would cover all their ‘official’ acts.

An early instance of a claim of functional immunity came in the case of a criminal charge against one MacLeod in 1841. Mr. MacLeod, a member of the British armed forces, allegedly attacked a ship moored in New York State while under orders from his government to do so. Much later, he was arrested while visiting the United States on unrelated business and put on trial in New York for a murder resulting from the destruction of the ship. The British government objected claiming that the attack was an official act and therefore any responsibility born by Mr. MacLeod should be transferred to the United Kingdom resulting in his release from custody and trial. The British and American governments essentially agreed,

[t]hat an individual, forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute.

Nevertheless, Mr. MacLeod was tried in New York State on the allegations of murder.[6] While the executive branch of the United States Federal Government seems to have conceded that MacLeod should have benefited from functional immunity, this was not a universal sentiment in the federal government at the time.

It is in the light of the above discourse one needs to assess whether the Italian marines were entitled to immunity from prosecution. 

In the Indian Supreme Court, reliance was placed on behalf of the Union of India on the United Nations Privileges and Immunities Act, 1947, and the Diplomatic Relations (Vienna Convention) Act, 1972, which gave certain diplomats, missions and their members diplomatic immunity even from criminal jurisdiction. The author is of the opinion that reference to immunity of diplomats and foreign missions has no relevance to the facts of the present case. It needs to be pointed out that the vessel was not headed towards India or Indian territorial waters but was en route to Djibouti. So also the marines were not accredited to any mission in India.

The question for consideration is whether the Italian marines were members of the armed forces of the Republic of Italy? The answer to this is in the affirmative. Secondly, were they on aboard the Italian flagged tanker in their private capacity or pursuant to an order of the Republic of Italy? Though they were assigned to a commercial vessel by the Italian government, they were discharging their functions as members of the armed forces. They were not discharging the functions as private security guards hired by the owner of the vessel to protect the ship and its personnel and cargo against pirates. The argument that merely the presence of armed forces’ personnel on a private vessel does not make it a public ship or warship, again is of no relevance since the question is not inviolability of the ship but inviolability of the military personnel aboard the ship. Prof. Natalino Ronzitti emphasized that the Italian guards were members of the Italian military (he noted also that the legislative framework for private Italian guards had not yet been put in place). In particular, he pointed out that both national Italian law and the United Nations resolutions supported the use of armed guards to repel pirates. He argued that the actions of the Italian marines should be attributed to Italy and not the marines individually. This would exclude their criminal trial in India. Thus, the marines appear to have a strong case for raising the plea of immunity. Interestingly the Indian Supreme Court did not adjudicate on the question of immunity while dealing with the Special Leave Petition. At para 98 of the judgment, the Court observed:

"The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation." 

Strangely it was also argued that as per the Policy of the Government of India, no foreign arms or foreign private armed guards or foreign armed forces personnel, accompanying merchant vessels, were allowed diplomatic clearance. Nor is it the policy of the Government of India to enter into any Status of Forces Agreement (SOFA) by which foreign armed forces are given immunity from criminal prosecution. Firstly, the Italian vessel was transiting through the Indian Contiguous Zone/EEZ. It was either ‘intercepted’ or informed by the Indian Coast Guard to enter India’s territorial waters and proceed to the port of Kochi. Secondly, SOFA applies to foreign troops posted in the territory of another state pursuant to an agreement. In fact, India could not have even argued about India not having a Visiting Forces Agreement (VFA) which is similar to SOFA and which covers forces visiting the host state temporarily for the Italian vessel’s intended destination was not India but Djibouti. Thirdly, the vessel was sailing in an area which was prone to piracy and had witnessed attacks by pirates in the past. [Between 2011 and 2012, four Italian ships were attacked and boarded by pirates: the oil tanker "Savina Caylyn", with 22 crew members, boarded on February 8 by Somali pirates off the coasts of Yemen and released on December 21, 2011; the cargo ship "Rosalia D'Amato", with 22 crew members, boarded April 20 in full Arabian Sea and released November 25, 2011; the oil tanker "Enrico Ievoli", with 18 crew members, boarded in the waters off the Somali coast Dec. 27 and released April 23, 2012 following an operation conducted by the Navy and the tug platform "Asso 21" picked up in the night between 23 and 24 December 2012 off the coast of Nigeria]. 


While India’s jurisdiction to try the two Italian marines may be well founded, especially in the light of the provisions of Article 86 of the UNCLOS, the marines may well be entitled to immunity from prosecution in the Indian courts.  

On 24th August 2015, by a majority opinion of 15:6, the International Tribunal for the Law of Sea (ITLOS) asked both India and Italy to suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the ITLOS for arbitration by Italy or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.

ITLOS has further asked Italy and India to submit to it, the initial report on compliance of aforesaid measures not later than 24 September 2015.

Pursuant to the order passed by the ITLOS, the Supreme Court of India stayed all the proceedings against the Italian marines in relation to the Enrica Lexie incident.

The lawyer representing the Union of India told the Court that the Government of India was bound by the order passed by ITLOS and court ought also to honour the same. He further informed the court that a five-member tribunal (ITLOS Annex VII arbitral tribunal) would be set up to decide the issue of jurisdiction. The lawyer representing the marines requested the Court that the matter be “adjourned sine die” till another tribunal decides jurisdictional issue and the same be revived by either of the parties. However the bench did not agree with the suggestion and fixed the matter for further hearing in the third week of January, 2016.

[1] Oppenheim’s International Law 9th Edn pp 341-342

[2] [(1812) 7 Cranch 116]

[3] US Court of Appeals 2d Cir., 1964, 336 
[4] Ricardo Pisillo Mazzeschi – The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories http://www.qil-qdi.org/the-functional-immunity-of-state-officials-from-foreign-jurisdiction-a-critique-of-the-traditional-theories/#_ftn1

[5] Reports of the Special Rapporteurs: RA Kolodkin, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction’ (29 May 2008) UN Doc A/CN.4/601; RA Kolodkin, ‘Second report on immunity of State officials from foreign criminal jurisdiction’ (10 June 2010) UN Doc A/CN.4/631; RA Kolodkin, ‘Third report on immunity of State officials from foreign criminal jurisdiction’ (24 May 2011) UN Doc A/CN.4/646; C Escobar Hernández, ‘Preliminary report on the immunity of State officials from foreign criminal jurisdiction’ (31 May 2012) UN Doc A/CN.4/654; C Escobar Hernández, ‘Second report on the immunity of State officials from foreign criminal jurisdiction’ (4 April 2013) UN Doc A/CN.4/661; C Escobar Hernández, ‘Third report on the immunity of State officials from foreign criminal jurisdiction’ (2 June 2014) UN Doc A/CN.4/673.
[6] Macleod was acquitted for want of evidence.