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].
Conclusion
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.
[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.
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