Marines' detention illegal: Italy

Italy has countered the arguments given by India on the return of its two marines, saying New Delhi had wrongly detained them. Even as the two were detained by the order of the Supreme Court, it did not charge the marines. In the absence of any charges, they left the country.

The two were detained to decide which agency would try them. Their jurisdiction was never established. Besides, India failed to create any special court or assign any investigating agency for the case, which is a normal practice, a representative of Italian government told Business Standard on condition of anonymity.

During the period between January 18, when SC quashed Kerala state High Court’s right to prosecute the marines till March 11, when the Italian government formally communicated to India that the marines will not return, not a single action had been taken against the marines.

“As of now the SC had leveled no charges on them (the marines). SC was only determining who has the jurisdiction to prosecute them. The process of jurisdiction was not even initiated. As a result, India and Italy were to settle this jurisdiction issue and come to an understanding. Italy kept asking India for a diplomatic solution to this but there was no response from the Indian side,” the official said.

Technically, they were detained in India “without any charges.” So, legally, there is no case pending against them. The official also said that under Article 97 of United Nations Conference on the Law of the Sea (UNCLOS), it is the flag state which has the right to jurisdiction and the flag state in this case is Italy.
The Indian fishing vessel had no national flag.

On Thursday, the SC barred Italian ambassador Daniele Mancini from leaving the country based on the undertaking he gave guaranteeing the return of the marines after they were allowed to visit their home country to cast their votes for the ongoing elections there.

Today lookout notices were put out at all airports to prevent the Ambassador from leaving India.

However, according to officials involved with the issue, the undertaking does not mean that Mancini is devoid of the diplomatic immunity and legally, he can leave India if he so wishes. The ambassador has been asked to appear before SC on Monday.  

“We have been consistent since day one, supremacy of the international law to be re-assessed, in last few days we tried and put several proposals to Indian government and want this to be to resolve by consensual meanings… I am confident that two mature democracies such as our and India will overcome with these difficulties and we are working with the Indian Institutions and the government in order to do whatever is to be done to pass and overcome this moment. It will be appropriate for me not to shy away from this and to remind you that it is very much present in our mind,” Mancini said.

Officials in Ministry of External Affairs said that this might sour the bilateral ties between India and Italy, which have gone through such tensions previously also.

MEA spokesperson Syed Akbaruddin had told reporters on Thursday that the government is evaluating the “entire expanse” of the bilateral agreement signed between India and Italy and necessary action will be taken only after that.