Part 1 – Tanker, Jailer, Soldier, Sailor: Functional Immunity and the Enrica Lexie Award

(Editor’s Note: This is the first of a two-part series on the significance for international law of the recent arbitral award in the “Enrica Lexie” case. Part 2 discusses the territorial tort exemption and the legal position of armed forces present on foreign territory.)

International law owes much to the exploits of sailors. Whether as harbingers of trade, colonial expansion or war, mariners have contributed a great deal to the development of the international system, for better or worse. Landmark cases such as The Caroline, The Franconia and The S.S. Lotus bear witness to their enduring impact on the doctrine and practice of public international law.

The arbitral award published on Aug. 10, 2020 in The “Enrica Lexie” Incident (India v. Italy) has now joined this list of naval precedents with significance for international law. The case arose out of the fatal shooting of two Indian fishermen on Feb. 15, 2012 by members of a military vessel protection detachment (VPD) tasked with protecting the Enrica Lexie, an Italian flagged oil-tanker navigating off the Indian coast. The incident raises a range of legal questions, including the exercise of State jurisdiction beyond territorial waters and the application of the United Nations Convention on the Law of the Sea (UNCLOS). Yet at the heart of the dispute lies a question of jurisdictional immunity: given that the personnel responsible for the shooting were members of the Italian armed forces, was India barred from exercising its criminal jurisdiction over their acts? The Arbitral Tribunal answered in the affirmative, but not without attracting vocal dissent.

The purpose of this analysis is to revisit the immunity question raised by the Enrica Lexie and to highlight certain blind spots in the Tribunal’s reasoning. Part I provides a brief overview of the incident, addresses the question of jurisdiction (both the Tribunal’s and India’s) and discusses whether or not the shooting was a commercial act. Part II will turn to the territorial tort exception and to the lex specialis position of national armed forces.

The Incident

Like other sea-faring nations, Italy has found itself the target of piracy and armed robbery at sea in recent times. Between 2007 and 2011, thirty Italian-flagged vessels have come under pirate attack across the globe. In several cases, the ships involved were hijacked and their crews taken hostage for extended periods of time. In response to this threat, Italy joined international anti-piracy operations and in July 2011 adopted domestic legislation authorizing the use of armed security personnel on Italian vessels. Decree 107 (later affirmed by Law 130) thus enabled the Italian Ministry of Defence to enter into agreements with private shipowners to deploy military protection units (nuclei militari di protezione) on vessels flying the Italian flag.

The Enrica Lexie was one of the vessels that benefitted from these arrangements, carrying a detachment of six Italian marines on its voyage from Singapore to Egypt in February 2012. In the afternoon of Feb. 15, 2012, the Enrica Lexie encountered an unidentified craft approximately 20 nautical miles from the Indian coast. The craft, which later turned out to be an Indian fishing boat, the St Antony, was heading towards the Enrica Lexie on what seemed to be a collision course. Believing themselves to be under pirate attack, the Enrica Lexie’s crew initiated security procedures, during which the marines on board opened fire and killed two fishermen on the St Antony.

Following the incident, the Enrica Lexie proceeded to Kochi, on India’s southwest coast, at the request of the Indian authorities. In port, the two Italian marines implicated in the shooting were arrested and charged with murder. Italy claimed exclusive jurisdiction over its personnel and asserted their immunity, but its claims were rejected by the High Court of Kerala. In January 2013, the Supreme Court of India upheld India’s jurisdiction, but subsequently permitted both men to return to Italy on bail and to remain there as of 2016. However, the criminal proceedings against them remain pending.

Jurisdiction

Italy initiated arbitration proceedings against India under Article 287 of UNCLOS on 26 June 2015. Amongst other things, it claimed that by asserting and exercising its criminal jurisdiction over the two marines, India violated its obligation to respect their immunity as Italian State officials, in breach of Articles 2(3), 56(2), 58(2) and 100 of UNCLOS (para 75).

For Italy, this immunity claim was the centerpiece of the entire case: a finding in its favor would essentially compel India to release the two Italian nationals and terminate the criminal proceedings against them. To achieve this goal, Italy not only had to convince the Arbitral Tribunal that India failed to respect their jurisdictional immunities, but also that this failure somehow concerned “the interpretation or application” of UNCLOS, thus conferring jurisdiction on the Tribunal under Article 288(1) of UNCLOS to decide the immunity question in the first place. Italy was only partly successful in this.

The two marines were arrested by the Indian authorities on land, after they were disembarked from the Enrica Lexie while it was moored at Kochi harbor (para 168). Consequently, the Arbitral Tribunal held that the UNCLOS provisions on which Italy based its immunity claim were inapplicable: those provisions deal with the exercise of jurisdiction and related matters on the high seas, the exclusive economic zone and in territorial waters, whereas the disembarkation and arrest occurred in India’s internal waters and on land (para 798). However, the Tribunal decided, by a narrow majority, that the immunity issue was an “incidental question that necessarily presents itself in the application of the Convention” and thus one it was entitled to resolve (para 811). This finding has elicited strong objections, but both the Tribunal and its critics seem to overlook the fact that India’s exercise of jurisdiction rests on multiple bases.

Once the two marines found themselves within Indian internal waters and on dry land, the principle of territorial sovereignty entitled India to take enforcement measures against them, such as disembarking them from their ship and arresting them, subject to any applicable immunities. However, since the shooting incident occurred outside Indian territory, the territorial principle on its own was not sufficient to justify such enforcement measures. In fact, India relied on two additional principles to complement its territorial jurisdiction.

First, pursuant to Article 92(1) of UNCLOS, States have “exclusive jurisdiction” over ships flying their flag on the high seas. By virtue of Article 58(2), this principle of exclusive flag-State jurisdiction also applies in the exclusive economic zone, the location where the Enrica Lexie incident took place. Based on this principle, Italy enjoyed jurisdiction over the events that occurred on the Enrica Lexie, whereas India enjoyed jurisdiction on board the St Antony. As the Tribunal remarked, the parties therefore had concurrent jurisdiction over the incident (para 839). Basing itself on the flag-State principle, India submitted that it “had jurisdiction to investigate upon the shootings against the St Antony and, as a necessary consequence of this right, it must have jurisdiction to sue and try the authors of these shootings” (paras 331 and 340). Second, India also argued that it enjoyed jurisdiction over the marines based on the passive personality principle (para 342), which entitles a State to exercise its jurisdiction over offences committed against its nationals.

The exercise of criminal jurisdiction over the two marines on land therefore cannot be divorced from the exercise of flag-State jurisdiction pursuant to Article 92(1) of UNCLOS. Accordingly, whether or not India’s exercise of jurisdiction is barred by any immunities is a question that pertains directly, and not merely incidentally, to the interpretation and application of UNCLOS. While the Tribunal was right to find itself competent to address the immunity claim, it should have done so in the exercise of its core jurisdiction pursuant to Article 288(1) of UNCLOS, rather than as an incidental matter.

Sovereign or Commercial Act?

National armed forces are State organs entrusted with protecting and defending the State and projecting its power. As guarantors of its political independence and territorial integrity, they are as close to the paradigm of State sovereignty as one can get. Nevertheless, not every act undertaken by the armed forces is necessarily sovereign in character. The requirements of the armed services are many. Soldiers need boots, army barracks cement, and military bases milk. Pursuant to the modern restrictive doctrine of State immunity, the immunity of States from foreign jurisdiction is justified primarily with reference to the sovereign nature, rather than the purpose, of an act (see Article 2(2), UN Convention on State Immunity). Ordinary commercial transactions therefore no longer benefit from State immunity, even if undertaken by or on behalf of the armed forces.

However, there is some disagreement as to whether this distinction between sovereign and commercial transactions is relevant when it comes to the immunity of State officials from foreign criminal jurisdiction. The Arbitral Tribunal itself was split on this matter.

For the majority, the immunity of State officials depends on whether or not they act in an official capacity. The test to apply here is one of attribution (para 857). Acts performed by State agents in the course of their official duties are imputable to their State and for this reason benefit from functional immunity. In essence, this approach treats functional immunity as a vehicle for apportioning responsibility: since State officials act on behalf of their State, claims arising from the performance of their official duties should be directed not against them, but against their home State. From this perspective, what matters is the official nature of the act, not whether it involves sovereign activities or commercial transactions. In the present case, the majority found that the marines acted in an official capacity as State agents entrusted with guaranteeing the maritime defense of Italy (para 862). Their activities were attributable to Italy and therefore benefitted from functional immunity (para 859).

In their dissenting opinions, Dr Sreenivasa Rao Pemmaraju and Judge Patrick Robinson subscribed to the competing view, arguing that the immunity of State officials is limited to sovereign activities and does not extend to commercial transactions. This approach is based on the idea that the functional immunity of State agents derives from the immunity of the State itself. If State immunity is limited to sovereign acts, the same limitation must also apply to functional immunity (Robinson, para 61). In accordance with the Italian enabling legislation adopted in 2011, the two marines were operating on the Enrica Lexie pursuant to a Memorandum of Understanding signed between the Italian Ministry of Defense and CONFITARMA, the Italian private shipowners association. Rao (paras 75–80) and Robinson (paras 62–63) both took the view that this Memorandum constituted a commercial transaction for the supply of services, meaning that the acts of the marines were commercial in character too. Accordingly, they concluded that their acts were not entitled to functional immunity.

Even if the minority was correct in holding that the distinction between sovereign acts and commercial transactions is relevant in the present context, the arguments for characterizing the shooting as a commercial transaction are not compelling. Rao and Robinson suggest that the correct test for determining the sovereign or commercial character of an act is one that focuses on the “nature” of the activity. However, in the present case, the relevant transaction is the one subject to Indian criminal proceedings, that is the use of force against the St Antony, rather than the conclusion of the Memorandum between the Italian Ministry of Defense and the shipowners association.

It is well-established that the application of military might constitutes a sovereign act (see Iranian Embassy Case, para 162; Jurisdictional Immunities of the State, para 60). Given that private individuals may resort to hostilities, the only factor capable of distinguishing private acts of violence from the sovereign deployment of combat power under the “nature” test is whether or not the force was employed in the exercise of State authority, so as to render it sovereign by nature. In the present case, the marines resorted to lethal force pursuant to national rules of engagement, acting under their military chain of command in defense of themselves, other Italian nationals, and an Italian merchant vessel. On this count, their action was undoubtedly sovereign in nature.

By focusing their attention on the Memorandum rather than the shooting, Rao and Robinson in fact are relying not on the “nature” test, but on the broader “context” approach. It is true that certain elements of the Memorandum are of an ostensibly commercial character. For example, the text makes repeated references to the service (servizio) being rendered by the Ministry. However, that wording cannot detract from the fact that the marines employed lethal force in the exercise of sovereign prerogatives and authorizations deriving from national law, rather than from the Memorandum (contra Robinson, para 63(v)).

Similarly, the fact that CONFITARMA undertook to reimburse the Ministry for the costs associated with the deployment of military protection units is not determinative. Reimbursement of costs is a standard feature of military operations. If it were to deprive an operation of its public character, we would be forced to conclude that the act of contributing troops to UN peacekeeping operations is a commercial transaction. At any rate, if the “context” approach is adopted, this cannot be a selective exercise. Regard must be had not only to the Memorandum, but to the Italian enabling legislation too. Decree 107 authorized the deployment of vessel protection units “as part of the international activities to counter piracy and to ensure the freedom of navigation of national commercial shipping” (Article 5(1)). It is clear from the Decree that these deployments were conceived as “international missions of the armed forces and the police”, rather than as commercial undertakings.

Consequently, regardless of whether or not the distinction between sovereign and commercial activities is relevant, the use of force against the St Antony constituted a sovereign act that attracts immunity.

Image: Italian marines Massimiliano Latorre (C) and Salvatore Girone (L) arrive with Admiral Luigi Binelli Mantelli (R) at Ciampino airport near Rome, on December 22, 2012. An Indian court allowed two Italian marines awaiting trial for shooting two fishermen to go home for Christmas, despite prosecution fears that they will not return. The marines shot dead the fishermen off India’s southwestern coast near the port city of Kochi in February while guarding an Italian oil tanker, but they deny murder on the grounds that they mistook their victims for pirates. Photo by VINCENZO PINTO/AFP via Getty Images.

 

About the Author(s)

Aurel Sari

Associate Professor of Public International Law at the University of Exeter, Director of the Exeter Centre for International Law, a Fellow of Supreme Headquarters Allied Powers Europe, and a Fellow of the Allied Rapid Reaction Corps. You can follow him on Twitter (@aurelsari).