The diplomatic face-off between India and Italy over which country has jurisdiction to try the case relating to the killing of two Kerala fishermen by Italian navy personnel remains unresolved. Both sides are sticking to their stand, which sets the stage for a legal tussle.
Italy is known to be pressing for Italian extra-territorial law to prevail, and is defending the right of its navy personnel to open fire in the event of feared piracy. In addition, it is looking to invoke the provision of the United Nations Convention on the Law of the Sea (UNCLOS) under which, it claims, there is provision for prosecution in the “home country” in the event of such disputes.
India contests these claims, pointing out that there is provision even within the Indian law framework for extra-territorial enforcement, and that the UNCLOS provision that Italy invokes relates to Navy vessels (and not, as in this case, with merchant ships).
Even the right to fire at pirates applies only to Navy vessels. In any case, India argues, it is absurd to invoke that right in this casse, given that the victims were unarmed fishermen, and the place in which the shooting occurred had no recorded instance of piracy.
Meanwhile, Cardinal Mar George Alencherry has clarified the remarks attributed to him by a Rome news agency, which had set off a controversy in Kerala because it appeared to suggest that the Vatican would seek to intervene in the matter on behalf of Italy, rather than have the law take its own course.
In a press statement issued late on Wednesday, the Cardinal said that the report in the Italian news agency was incorrect, and that the agency had withdrawn the report and had expressed its apology for the “mistake”.
“I have not tried to intervene in this matter, nor have I contacted any ministers regarding this,” he noted in his statement. "Two precious lives have been lost. Strong legal action should be taken against the guilty."
The Vatican news agency Agenzia Fides had reported controversially that Alencherry “has taken an interest in mediating and seeking a peaceful solution to the delicate situation. Fides, which based its report on an interview with the Cardinal, further said that the Cardinal had confirmed that “he has contacted the Catholic ministers who are in the government of Kerala”, announcing his constant interest until the case is “clarified and resolved peacefully”, removing the risk, however real, of political exploitation.” (Read Firstpost report on this.)
That report, which has since been taken off the agency’s website, whipped up a furore in Kerala. Opposition leader in the Kerala Assembly, VS Achuthanandan, said the statement attributed to the Cardinal – that the Opposition in Kerala might look to "exploit" the situation - was condemnable. "If the statement is true, it showed that the Cardinal was with the persons who killed and not with the victims. The Cardinal tried to justify the incident more than the Italian authorities," Achuthanandan said. That such an "irresponsible statement came from a person like the Cardinal" was completely unacceptable, he added.
A new report on the Fides website (here) quotes the Cardinal as saying: “I would like to precise my views reported by the news agency Fides regarding the incident in which two fishermen were killed in the sea. This event has to be investigated and if there is a culpable action it has to be dealt with legally and the culprits have to be punished. Truth and justice have to be established. What I said the other day parenthetically was that this event shall not become a cause for conflicts and enmity in the communities and between nations. I have no intention to take a mediatory role in the setting of this matter.”
Legal battles today
Back in Kerala, the case relating to the killings will be taken up by the courts today. The two Italian navy personal have filed a petition challenging the FIR against them on the ground that the shooting occurred outside Indian territorial waters and therefore Indian law wouldn’t apply.
In another strand to the case, the Kerala High Court has rejected a petition by the widow of one of the two Kerala fishermen killed for Rs 1 crore as compensation, which the ship owners had said was “too high”.
The court instead asked the owners to instead furnish a bank guarantee of Rs 25 lakh. The court also directed the owners that the ship could be taken out of Kochi, only after securing clearance from the probe agencies.
The petition seeking Rs 1 crore compensation had been filed by Dora, whose husband Jelestine had died in the firing by the Italian Navy personnel. She had asked that the seized oil tanker Enrica Lexie should not be allowed to leave until its owners paid Rs 1 crore as compensation.
Dora’s counsel indicated that an appeal against the single judge’s order would be filed before a division bench on Thursday.
Published Date: Feb 23, 2012 06:06 AM | Updated Date: Feb 23, 2012 06:06 AM