Only two years ago, the incident of the Enrica Lexie divided Italian opinion, and created an international incident that neither country has been able to quell.
At the heart of the matter, are the suspected killings of two Indian fishermen in the territorial waters off of Laccadive Sea in South West India.
The Enrica Lexie is an oil freighter guarded at the time by Italian Marines, detailed to the ship to avoid international piracy in a non official manner.
The two Indian victims were both fishermen. According to accounts from the Italian side, the Marines shot the Indian fishermen because they were concerned they could be pirates. On the Indian side, the story becomes that of rogue Marines who decided to do some target practice on some innocent fishermen.
As the latin saying goes, guilt and innocence are rarely able to be separated with a knife. But the disparity of the recollections, and the basic facts of the incident play in favor of the Indian findings.
The incident occurred at the 20.5th mile off of the city of Kerala, in what is considered territorial waters. As a matter of fact, the Enrica Lexie's own tracking puts in Indian Customs waters, which is the maritime area defined as the waters extending into the sea up to the limit of contiguous zone of India.
At stake is also the fact that the Enrica Lexie neglected to notify Indian authority once in those waters and obtain a PreArrival Notification for Security clearance. That would have to be obtained before the vessel could be allowed inside the Exclusive Economic Zone. Use of weapons in those zones is strictly forbidden.
Once Indian authorities were alerted that the fishing trawler had been hit by gunfire and two people had been killed, they immediately intercepted the vessel and took the contracted Marines, who were not on the vessel under official orders, in custody. Since then, a long and protracted judicial procedure has kept the two countries at odds.
Unfortunately, the Italian authorities have portrayed the incident as a successful piracy defense situation, and in so doing inflamed Indian sensibilities.
The fact that the chairpersoon of the UPA party in the Indian congress is one Sonia Ghandi, wife of Indira Ghandi's slain son, and an Italian national, has been closely monitored by the Singh administration for improprieties.
At stake however, are the Marines' own statements during depositions, in which they declared that the deaths were accidental and were due to them firing 'warning' shots. The problem is that the fishermen had no weapons on board, thereby voiding the need for shooting anyone. No other bullet holes were found on the side of the vessel, indicating that the only bullets fired were aimed directly at the fishermen. In addition, the waters off Kerala are not known for piracy activity.
The Enrica Lexie crew proceeded for 70 km in its attempt to reach Egypt before it was intercepted and asked to return to Kochi, after Indian authorities learned of the incident. Video evidence on board was overwritten instead of being preserved as evidence. The Indian fishing trawler had the right of way in the waters according to maritime law, but the oil tanker made no attempt to correct its position and ended up in close proximity with the fishing vessel, then claimed that the fishing vessel's persistence in advancing became suspicious to the Marines. However, the captain of the tanker in his deposition said that he expressed surprise when he noticed the Marines shooting, leading investigators to believe that until then there was no sign of danger or that none was communicated to the bridge by the Marines before they fired.
The Italian government, since then, has paid an out of court settlement - in exchange for waiving individual criminal liability claims - a total of 150,000 Euro to each of the victims' families. This deal, which essentially removes all possibility of future criminal claims filed by the deceased's family members, was strongly criticized by Indian government, in that it had been a secretive and underhanded manouevre to void further prosecution of the Marines. The Italian government replied that the sums were not compensation for loss, but a gesture of goodwill towards the families.
During the proceeding of the International court investigation, Italy broke its commitment to produce the other four Marines present on the Lexie, who would have been able to provide eyewitness testimony to the facts. The reason for such a change of heart, was Italy's own belief that India was seeking to press charges against the additional Marines, due to the fact that Indian investigators believed that the two Marines already in custody had taken the blame for the shooting but that more of the contracted Marines might have been involved.
Not long after, India reclassified the charge to that of violence, instead of murder, so that the death penalty would not apply. In so doing however, it placed the two Marines under indictment for terrorism, or piracy, a charge that offended the Italian authorities.
A subsequent investigation done by Italian authorities dismissed the charge of violence, and declared the incident an accidental manslaughter, and also stated that India could not try the Marines, because they were in international waters according to Italy own's determination of the area of the incident at the time.
India however, has retained jurisdiction on the matter, and has not acquiesced to Italy's demands that they be tried in Italy alone. Italy, for its part, has steadfastly refused to offer up the 4 remaining Marines for testimony and cross examination, citing of all things, political tensions, i.e., public sentiment against sending the four Marines to India. However, a careful study of the maritime laws does prove that India is trying to use a drug enforcement/law enforcement type of judicial reach over waters that are usually considered outside the continental zone proper, or a set of laws used for enforcement of anti-piracy measures. But India had also subscribed to the UNCLOS body of Law in 1995, and that would allow it to extend its jurisdiction in matters where there are military manouevres or where there is use of firearms or explosives in the EEZ. Since the Lexie had not obtained premission to be in the EEZ as it should have, it had not permission for the use of any firearms or weapons inside that zone.
More undiplomatically, Italian president Napolitano received the returning two Marines accused of the killing as national heroes, giving the Italian public the perception that the two men were being persecuted by Indian authorities. In addition, the Italian president made clear that the two Marines would not be handed over to India again under any circumstance.
Needless to say, the diplomatic ties between the two countries quickly deteriorated. Things took a turn for the worse when Sonia Gandhi was accused of colluding in the release of the two Italian Marines. Since the return of the Marines to Italy, India has considered reviewing all relations with Italy, economic military and trade.
After much political wrangling the Italian government finally abided by its promise and returned the two marines to India. Although the Marines have been given permission to reside within the Italian Embassy as a concession for their return to India, their permanence in the diplomatic quarters and the downgrading of their accusations have created a wide protest in the Indian mainland, fomented in part by pre-election showdowns between political parties.
Beyond the obvious diplomatic and juridical wrangling, the case has been complicated by an Italian press campaign that has consistently ignored India's plight, and has depicted the two Marines as national heroes. The Ferrari Formula One cars are both adorned with Italian navy flags for their participation in the 2014 races, a move that has angered India's population. To make things worse, India has opened an inquest into kickbacks offered to Indian politicians on the sale of helicopters to India nicknamed ChopperGate, which many in India see as payback for India's request to bring the two Marines to justice.
The problem on both ends, is that the trial and the incident have become politicized. Both countries are in the midst of electoral throes, and politicians in both countries are trying to use the incident to stoke public sentiment. The truth however, might never be had, and in that sense, truth is the casualty in this case. It is unthinkable that such an incident should be treated so shabbily by the country whose individual are accused of the crime. But such is the problem that arises when international incident have the luck of bad timing.
Italy's refusal to deal with this matter, and honor those who died, is placing it in that league of countries that do not wish to honor other country's requests or judicial resolutions.
Just today, the latest chapter of this saga is being written. Following the decision of the Indian Supreme Court to delay the decision on a trial, the Italian government decided to retaliate and recall its ambassador. In this tit for tat, Italy is claiming that India is unnecessarily delay the decision on whether to proceed in the trial by employing anti-piracy legislation. But such a stance is disingenous and terribly one sided, from a country that is unable to bring justice in a timely fashion in its own land. Decades sometimes pass before a final verdict is rendered in Italy. Its own slow judiciary crawl has often been criticized because it often results in verdicts after the crime has fallen beyond the statute of limitations' time limit.
Even more absurd, is the contention that Italy has a right to try the Marines in its own courts, claiming a sovereignty through some labyrinthine interpretation of maritime law, or even more absurdly, by claiming that the Marines were operating in an official role.
At greater stake, at least for the EU and the rest of the world, is that the whole body of anti-piracy laws could be undermined by India's lengthy approach to its decision and lack of timely resolution.