UN tribunal asks India, Italy to suspend trial of Italian marines

A United Nations tribunal today asked India and Italy to immediately suspend all legal proceedings in a case relating to the killing of Indian fishermen by two Italian marines in 2012, saying that it may aggravate the issue.

However, it has not acceded to Italy's long time demand that one of the two marines , Salvatore Girone, who is still in India, should also be allowed to go back home till the case is finally disposed of and the criminal proceedings against them should be suspended.

The International Tribunal on Law of the Sea (ITLOS) also sought initial report from both Italy and India by 24 September into the incident.

The tribunal passed the order on Italy's plea that two of its marines accused of killing Indian fishermen should be handed over by India and tried in their own country.

In its order issued today, the tribunal noted that both parties agreed to the existence of a dispute between them relating to the `Enrica Lexie' incident.

At the stage of the provisional measures proceedings, however,  ''the tribunal must satisfy itself that any of the provisions invoked by the applicant appears prima facie to afford a basis on which the jurisdiction of the arbitral tribunal might be founded.''

After examining the positions of the parties, the tribunal has come to the view that a dispute exists between the parties concerning the interpretation or application of the convention, and it has found that the arbitral tribunal would prima facie have jurisdiction over the dispute.

The Tribunal noted that both parties agree that an extensive exchange of views has taken place and that this did not lead to an agreement between the parties regarding the settlement of the dispute by negotiation or other peaceful means. ''Having examined the circumstances of the present case, the Tribunal is of the view that the requirements relating to the exchange of views have been satisfied.''

The Tribunal has taken the view that the issue of exhaustion of local remedies does not arise in this case ''since the very nature of the dispute concerns the exercise of jurisdiction over the Enrica Lexie incident, the issue of exhaustion of local remedies should not be addressed in the provisional measures phase''.

India had earlier told the UN tribunal that it is ready to complete within four months the trial of two Italian marines accused of killing two Indian fishermen off Kerala's coast if Italy cooperates.

Italy had dragged India to International Tribunal on Law of the Sea (ITLOS) accusing delay in the trial of 15 February 2012 incident in which marines Massimiliano Latorre and Salvatore Girone, who were on board ship 'Enrica Lexie', allegedly shot dead two Indian fishermen in a canoe.

"I have been instructed to state that India is prepared to guarantee that the decision of the Special Court could be handed down within four months from the date on which the hearings open, if Italy were to cooperate and withdraw its objections to the procedure before the Indian Supreme Court," Indian representative Alain Pellet told the tribunal.

India's representative told the tribunal that the marines "used automatic weapons without warning and shot in head and stomach of the two fishermen...This case is not covered by Article 97 of the United Nations Convention on the Law of the Sea but rather a double murder at sea."

India also rebutted Italy's claim before the tribunal that New Delhi shut the door for a diplomatic solution to the marines issue and also that there was any back channel discussions between the senior Prime Ministerial advisers and Italian representative.

Italy has based its appeal on a UN law that grants jurisdiction in such cases to the country that owns the ship involved in any incident at sea.

The marines, Massimiliano Latorre and Salvatore Girone, who were on board the oil tanker "Enrica Lexie", are accused of killing two unarmed Indian fishermen off the Kerala coast on February 15, 2012. Italy maintains that the shooting took place in international waters and that the fishermen were mistaken for pirates.

Sergeant Girone is out on bail in India and sergeant Latorre has been given permission by the Supreme Court to stay in Italy for another six months for medical treatment.

The Italian government's version was short, straightforward and misleading, India said in the tribunal hearing at Hamburg.

India has also challenged Italy's contention that it has kept Sergeant Girone as a "hostage". "It is surprising that Italy is insensitive to the interests and plight of the victims of crime and is adopting a discriminatory attitude," India said in its submission.