(i) On 16 February 2012, the day after the incident, the Indian Coast Guard boarded the "Enrica Lexie" and informed the marines that the incident fell under the jurisdiction of India's territorial waters. The marines responded that they were only answerable to the Italian authorities, who had already commenced an investigation. They gave the Coast Guard a written document stating that they were entitled to immunities as military forces in transit. The Coast Guard nonetheless carried out its investigation. On the same day, Italy sent a note verbale to India stating that the Italian marines were, "exclusively answerable to the Italian judicial Authorities, under Article 97".9 On the following day (17 February 2012), Italy sent a note verbale to India indicating that "based on international law, the Italian judicial Authorities are the sole competent judicial Authorities for the case in question".10 These communications constitute the first twinning by Italy of the Indian exercise of criminal jurisdiction over the marines and their claim to immunity therefrom as the core elements of the dispute. The subsequent notes examined also illustrate this twinning.
(ii) In the second paragraph of the note verbale of 29 February 2012 from Italy to India, fourteen days after the incident, Italy states, "State organs enjoy jurisdictional immunity for acts committed in the exercise of their official functions. The Italian Navy Military Detachment that operated in international waters on board the ship Enrica Lexie must be considered as an organ of the Italian State".11 The note verbale in its fifth paragraph reasserts Italian exclusive jurisdiction in respect of the said military personnel, and in its penultimate paragraph it states that the marines were carrying out official functions and that their conduct "should not be open to judgement scrutiny in front of any court other than the Italian ones". In the same note verbale, Italy also stated that "State organs enjoy jurisdictional immunity for acts committed in the exercise of their official functions". Italy also asserted that it had exclusive jurisdiction in respect of the marines.
(iii) In the first paragraph of another note verbale dated 11 March 2013, less than a month after the incident, from Italy to India, Italy refers to the "Supreme Court decision of 18 January 2013, in which it was denied the Italian jurisdiction on the incident".12 In the second paragraph, Italy stated that India was in "violation of International Law obligations including the principle of immunity of jurisdiction for agents of a Foreign State and the provisions of the [UNCLOS]". This note verbale, just like the others, provides the basis for an objective determination that both the exercise by India of its criminal jurisdiction over the marines and their claim to immunity therefrom are the core elements of the dispute. In the third paragraph of this note verbale, Italy states that "in the light of said decision of the Indian Supreme Court and of the lack of answer to the Note Verbale dated 6 of march... there is an existing controversy with India concerning the provisions of said Convention and the general principles of International Law applicable to this incident". This statement reveals that Italy did not accept the "said decision of the Indian Supreme Court" which rejected its claims of immunity for the marines and that it had jurisdiction over the "Enrica Lexie" and the marines; this statement also reveals that Italy did not accept the Indian Court's exercise of jurisdiction over the marines. It is beyond doubt that in this note verbale, Italy twins the elements of the Indian exercise of criminal jurisdiction over the marines and the Italian claim to immunity therefrom as the core elements of what that country describes as "the existing controversy [dispute] with India".
(iv) In the note verbale of 7 February 201413 Italy stated that "the two Italian Marines enjoy immunity from jurisdiction of Indian courts under international customary law, and that Italy has jurisdiction over the matter".
(v) A note verbale of 15 February 2014 in similar terms to the one of 7 February 2014.14
(vi) In the note verbale of 10 March 2014,15 Italy stated that it expected the Indian authorities to dispose of the case in conformity with international law and "with special regard to the international rules on immunity of State officials on duty and on the exclusive jurisdiction of the flag State on the high seas".
On 15 February 2012, the very day of the incident, the Kerala Police started investigating the complaint about the killing of the two Indian fishermen - this was an investigation into the crime of murder. On 16 February 2012, an Indian party of thirty-six police officers boarded the "Enrica Lexie". The Coast Guard told the marines that the Incident came "under the jurisdiction of their territorial waters".27 Following a discussion between the Indian officials and the marines, Sergeant Latorre maintained that the VPD is "exclusively answerable to Italian Judicial Authorities" and that Italian authorities were investigating the incident.28 Sergeant Latorre then gave the boarding party a written document which included the statement that "[u]nder International Law the detachment is afforded with judicial immunities as internationally recognised in respect of military forces in transit". Nonetheless the Indian boarding party "'formally detained' the 'Enrica Lexie'"29 and continued to put "pressure... on the crew and master to furnish details of the weapons and surrender them".30 The Indian Ministry of External Affairs instructed Commandant [REDACTED] "to bar the 'Enrica Lexie' from leaving the Kochi anchorage and to bring the ship into port".31
(i) On 16 February 2012, the Indian officials required the "Enrica Lexie" to enter the port of Kochi.32
(ii) On 19 February 2012, the Indian police "disembarked Captain Vitelli for questioning" and the Indian mercantile marine department boarded the vessel to commence investigations.33
(iii) On the same day, "the Kerala police escorted the Marines from the 'Enrica Lexie' and arrested them... 'on an allegation of murder'."34
(iv) On 20 February 2012, the "Enrica Lexie", obviously on the instruction of the Indian Coast Guard, moved from Kochi oil terminal to another position in Indian internal waters, with fifteen Indian policemen remaining on board.35
(v) On 1 March 2012, the marines challenged their detention before the "Chief Judicial Magistrate in Kollam on grounds of safety concerns and their immunity..." and on 5 March 2012 "the Chief Judicial Magistrate ordered that the marines be transferred to 'judicial custody' in the central prison.".36
(vi) On 2 May 2012, the Supreme Court ordered that the Government of Kerala and its authorities shall allow the "Enrica Lexie" to commence her voyage.37
(vii) On 9 May 2012, the Supreme Court gave leave for the marines to apply for bail and the bail application was rejected by the Chief Judicial Magistrate in Kollam on 11 May 2012.38
(viii) On 18 May 2012, the Kerala Police concluded their investigation and filed a "Final Report" (or "Charge Sheet") against the marines, referring to the crime of murder.39
(ix) On 19 May 2012, the Court of the Sessions Judge, Kollam, rejected another bail application by the marines.40
(x) The marines were detained in custody until 30 May 2012, when they were granted bail by the High Court of Kerala subject to certain conditions.41
(xi) On 18 January 2013, the Supreme Court found that the Union of India had jurisdiction over the marines.42
(xii) On 22 February 2012, Italy and the marines filed Petition 4242 in the High Court of Kerala. They contended that India did not have jurisdiction, Italy had exclusive jurisdiction "and that in any event, under international law, the marines had immunity from Indian criminal jurisdiction".43 On 29 May 2012, the High Court of Kerala dismissed the Writ Petition, finding that India and the Kerala authorities had jurisdiction, and in what can only be described as a blunt rejection of immunity, the Court stated that the Incident "can be treated only as a case of brutal murder and can in no way be masqueraded as a discharge of the sovereign function".44
It is true that the application of the Geneva Convention is hardly possible without giving an interpretation of Article 256 of the Treaty of Versailles and the other international stipulations cited by Poland. But these matters then constitute merely questions preliminary or incidental to the application of the Geneva Convention. Now the interpretation of other international agreements is indisputably within the competence of the Court if such interpretation must be regarded as incidental to a decision on a point in regard to which it has jurisdiction.
(i) To begin with, it is to be noted that Article 5 of the Law Decree of 12 July 2011 enables the Ministry of Defence of Italy to enter into framework agreements with shipowners for the protection of ships flying the Italian flag. It is also significant that in order for a shipowner to benefit from the protection of its vessel through the emplacement of marines on the vessel, the shipowner was obliged to make a specific application for the services of the marines. Those services were only provided to the shipowners who applied and were prepared to accept the onerous obligations imposed by Italy for its provision of the services of the marines. There was therefore, a very peculiar, direct and specific contractual relationship between the Italian Government and the shipowners of the "Enrica Lexie".
(ii) On 11 October 2011, the Ministry of Defence of Italy and the shipowners concluded a Memorandum of Understanding. Its preambular paragraph indicates that the purpose of its adoption was the supply of services to shipowners. On the same day, 11 October 2011, there was also concluded an Agreement between the Ministry of Defence of Italy and the shipowners intending to avail themselves of the services of the marines. Article 2.1 provides that there is available to applicant shipowners the services of the marines for protection of vessels from piracy and armed robbery. The Article also refers to "service supply" in the form of VPDs "made up of armed military personnel equipped with individual and team weapons". It is therefore clear that the transaction between the Government of Italy through its Ministry of Defence and the shipowners was carried out on the basis of what in many jurisdictions would be an ordinary contract for services. This is a commercial transaction, that is, an act jure gestionis, not attracting immunity. The fact that the contract between the Government of Italy and the shipowners had an ostensibly public purpose of providing protection for vessels from piracy is irrelevant in determining whether it had the character of a commercial or sovereign transaction. What is decisive is the essentially commercial nature of the Agreement between the Government of Italy and the shipowners. For that reason, a contract between a government and a private entity to purchase equipment for its armed forces is a transaction jure gestionis that would not attract immunity.
(iii) The essence of a commercial transaction is the exchange of goods and services between persons or entities. That element of exchange is very strong in the Agreement between the Ministry of Defence and the shipowners. Essentially, under the Agreement, the Ministry of Defence undertakes to supply the services of the VPDs in exchange for commitments on the part of the shipowner set out in Article 2.2. This subparagraph identifies seven commitments on the part of the shipowners. Any one would suffice to illustrate the commercial character of the transaction between the Ministry of Defence and the shipowners. All of them are characteristic of the give and take or quid pro quo that are at the heart of a commercial transaction. But two provisions are particularly striking in that they indicate the extent to which the Government of Italy went to protect itself. First, subparagraph (c) of Article 2.2 obliges the shipowner to maintain suitable insurance contracts for third party liability, more specifically in relation to damage incurred by the VPDs for fault-based liability of the shipowner or his subordinates. It would not have been unreasonable to expect the Government of Italy to take out insurance contracts for the marines who, after all, are on the vessels in the service of their country. Nonetheless, the Italian Government was able to secure an Agreement in which the shipowner bears the burden of entering into insurance contracts for third party liability in respect of damage from acts carried out by the VPDs. This is by no means an inconsequential commitment. The shipowner would incur the expense for insurance in respect of a VPD which consists of at least six persons. Second, subparagraph (d) of Article 2.2 obliges the shipowner to waive compensation claims for contractual liabilities incurred by the shipowner due to a deviation from the trade course to allow the embarkation and disembarkation of VPDs, as well as detention and disembarkation requirements as regards individuals possibly arrested or subject to provisional arrest. Both subparagraphs (c) and (d) are the kind of provisions one finds in a commercial transaction between two private persons, one of whom is bent on protecting himself/herself, and who has the negotiating strength to do so. The risk of damage resulting from acts of the VPDs has been placed on the shipowners in a manner that almost suggests that the VPDs have become employees of the shipowner. In any event, the entire set of commitments in Article 2.2, in particular subparagraphs (c) and (d), highlight the extent to which the Government of Italy went to ensure that, if something went amiss in the performance by the VPDs of their functions, it would be protected. The shipowners undoubtedly paid a significant price for the services of the VPDs provided by the Government of Italy. There is, of course, nothing wrong with that, but it needs to be acknowledged that the transaction that led to the marines being placed on the "Enrica Lexie" was an essentially commercial one.
(iv) However, the most striking feature of the transaction illustrating the element of the exchange of goods and services that characterizes a commercial transaction is Article 6 of the Agreement. Under that Article, the shipowner is obliged to "repay costs incurred for the employment of the VPD". These costs are set out in Article 2 of the Addendum to the Agreement, which shows that for a total amount for daily service onboard, the shipowner must pay the sum of 467 euros to repay the costs linked to the employment of the VPDs. Three comments may be made. First, the sum of 467 euros per person per day amounts to 14,010 euros for 30 days of service, 170,455 euros for 365 days of service, a sum that appears to be much higher than the average salary of a member of a VPD. Regardless of whether the sum is considered high or low, it does illustrate the commercial character of the transaction. In assessing the commercial character of the transaction, it is irrelevant that the repayment is for costs incurred by the Italian Government in providing the services, because, given that the criterion is the nature and not the purpose of the transaction, it is immaterial whether the Italian Government was prompted by a profit motive. Second, the Majority states that "this reimbursement to the Italian Government, as opposed to a direct payment of salary by the shipowners is a standard and common practice designed to simply compensate the Ministry of Defence for the costs incurred by the VPDs when stationed onboard a vessel".89 It matters not whether the practice is standard or not; what is decisive is that, at any rate, in the case of Italy, it is a practice that is part of what is an essentially commercial transaction. Third, there is another problem in Article 6, which speaks of "repay[ing] costs linked to the employment of VPDs". The word "employment" in English (the official language of the Arbitration) strongly suggests that the VPDs were in the employment of the shipowners. It would be entirely reasonable to read the phrase this way: "repay costs linked to the employment of VPDs by the shipowner". It warrants comment that no explanation has been offered for the use of this word, which, if given its ordinary meaning in English, would mean that the VPDs as employees of the shipowners would certainly not be entitled to immunity for their acts.
(v) A question that deserves consideration is whether the act of the marines firing the shots that killed the two Indian fishermen can be isolated and severed from the commercial transaction that led to their emplacement on the "Enrica Lexie". In other words, can the shooting be isolated and severed as a sovereign, governmental act attracting immunity? Can it stand on its own? Those questions must be answered in the negative. The presence of the marines on the vessel is so intertwined with the essentially commercial transaction between the Italian Government and the shipowners that it is not possible to separate the one from the other. After all, absent that transaction, they would not have been on the vessel. Even though it is argued that the marines acted in accordance with the Ministry of Defence's terms of engagement, it is not possible to separate their conduct from the context in which they were placed onboard the "Enrica Lexie". When they fired the shots, they did so against the background and on the basis of a commercial transaction in which (a) the Government of Italy received from the shipowners the sum of 467 euros per person per day, amounting to 14,010 euros for 30 days of service and (b) the shipowners were obliged to accept onerous obligations in order to protect the Government of Italy from claims arising from the conduct of the marines. Although in accordance with the Agreement the sum paid by the shipowners was to "repay the costs incurred for the employment of the VPDs", it is not unreasonable to see that sum as being in effect a payment by the shipowners for the services of the marines. While the provision of security by a government for its citizens is usually seen as a sovereign, governmental act, it need not necessarily have that character. In some countries today, the provision of security has a commercial component. In this case, the commercial component is such that it completely nullifies the public purpose that is usually associated with the provision of security by a government. The shooting that led to the death of the two Indian fishermen was by its nature a commercial act carried out in defence of the interests of the shipowners. It is as though the Agreement between the Italian Government and the shipowners was in effect a contract for the employment of the marines by the shipowners. The services provided by the marines to the shipowners cannot attract immunity in the circumstances of this case.
(i) Italy bears the burden of establishing to the satisfaction of the Arbitral Tribunal that the marines are entitled to immunity from the exercise by India of its criminal jurisdiction over them.
(ii) The act of Italy that resulted in the emplacement of the marines on the "Enrica Lexie" was by its nature commercial and not sovereign; therefore, notwithstanding that the emplacement of the marines on the vessel served the public purpose of protecting the ship from piratical attacks, Italy does not enjoy immunity under customary international law; the shooting by the marines is not severable from the commercial transaction that led to the embarkation of the marines on the "Enrica Lexie"; it was by nature a commercial, and not a sovereign, act.
(iii) Since the immunity of the marines is for the most part a reflection of the immunity of the State of Italy, the absence of Italian immunity for the acts leading to the shooting of the two Indian fishermen means that there is no immunity from which the marines can benefit as State officials; the marines cannot generate their own immunity and it is not decisive that they were acting in an official capacity.
(iv) In order for the marines to enjoy immunity, Italy has the burden of establishing that in their service on the ship they remained in the employment of the Italian Government and did not become employees of the shipowners. The following factors raise serious questions as to whether the marines were not in the employment of the shipowners. First, the sum paid by the shipowners for "repay[ing] costs linked to the employment of VPDs" is of such an amount that it is not unreasonable to see it as a payment by the shipowners for the services of the VPDs. Second, the language in Article 6 - "repay[ing] costs linked to the employment of VPDs" suggests that the marines were in the employment of the shipowners; in English, it would be reasonable to read the sentence as meaning, "repaying costs linked to the employment of VPDs by shipowners"; if the marines were so employed their actions would not attract immunity because the possibility of immunity only arises if they were performing sovereign functions on behalf of the Italian Government. Third, the nature of the very onerous obligations imposed by the Agreement on the shipowners also raises doubt as to whether as a result of the Agreement the marines did not become employees of the shipowners.
(v) In light of the foregoing, Italy has failed to discharge its burden of establishing that the marines are entitled to immunity ratione materiae.
Even though NATO has generated substantial relevant practice and the NATO SOFA is often used as a precedent, there is no consensus about the existence of a corresponding rule of customary international law. Indeed the contents of modern SOFA tend to vary by the circumstances.108
(i) The dispute, properly characterized, concerns the question of the exercise by India of its criminal jurisdiction over the marines in the face of their claim to immunity therefrom; the Arbitral Tribunal has no jurisdiction over the issue of the immunity of the marines because it does not concern the interpretation or application of the Convention; since that issue is a core element of the dispute, the Arbitral Tribunal should have declined jurisdiction over the dispute.
(ii) The issue of the immunity of the marines is not an incidental question; rather it is a core element of the dispute; it is the real issue in the dispute between the Parties.
(iii) The Arbitral Tribunal derives no help from the doctrine of the incidental question in determining whether it has jurisdiction over the issue of the immunity of the marines. The case relied on by the Majority, Case Concerning Certain German Interests, is not pertinent to the facts of the instant case. It is the UNCLOS Annex VII cases of Chagos Marine Protected Area Arbitration, South China Sea Arbitration, and Ukraine v. Russia that are pertinent. Those cases stress the need to separate a so-called incidental question from the real issue that is in dispute. In this case, the issue of the immunity of the marines is the real issue separating the Parties; since it does not concern the interpretation or application of the Convention, the Arbitral Tribunal would, in any event, be obliged to decline jurisdiction over the dispute.
(iv) Even if the Arbitral Tribunal had jurisdiction over the issue of the immunity of the marines, the marines do not enjoy immunity either because: (a) the State of Italy engaged in an essentially commercial transaction in order to emplace the marines onboard the "Enrica Lexie" to protect the vessel from pirates; that act, jure gestionis, does not attract immunity for the State of Italy under customary international law; therefore the State of Italy had no immunity from which the marines could benefit in their act of firing shots from the "Enrica Lexie" that resulted in the death of two Indian fishermen aboard the "St. Antony"; or (b) the marines can be assimilated to the status of visiting forces which do not enjoy immunity under customary international law for acts carried out in the receiving State. Since there was no agreement between Italy and India to grant immunity to the marines, the act of the marines that was completed onboard the "St. Antony", over which India had jurisdiction as the flag State or on the basis of the principle of objective territoriality, does not attract immunity.
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