Enrica Lexie Case: Minister Terzi’s Parliamentary Audition and Resignation

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 4th MEETING, 26 MARCH 2013 – URGENT INFORMATION ON THE RECENT DEVELOPMENTS OF THE CASE OF THE TWO ITALIAN MARINES UNDER CRIMINAL PROCEEDINGS IN INDIA.

On 26 March 2013, the Minister of Foreign Affairs, Giulio Maria Terzi di Sant’Agata, declared in a speech before the Chamber of Deputies his intention to resign, in protest of the Italian Government’s decision to return to India Sergeant Major Massimiliano Latorre and Sergeant Salvatore Girone, the two Italian marines accused of killing two Indian fishermen while embarked aboard the Italian-flagged oil-tanker Enrica Lexie in order to carry out anti-piracy activities.

Here follows Minister Terzi’s statement:

“The Indian decision of taking control of an Italian-flagged ship and of the Italian marines aboard, who were conducting anti-piracy activities in international waters, has been a grave injury not only to Italy, but also to the entire international community. […]

On 15 February 2012, at 3 pm Italian time, the Indian authorities asked the Enrica Lexie’s captain to invert the course of the ship, exit international waters and head towards the Cochin Port. They claimed some piracy suspects had been arrested and cooperation was needed in order to identify them. Then, armed policemen climbed on board and forced the marines to go ashore and turn themselves in to the local authorities. The seriousness of this blatant act of force has not been ignored […]. The grave injury to the Italian sovereignty, the outrage to our Armed Forces and the affliction caused to the two marines involved and their families have not been underestimated.

Since 16 February, the Government and myself […] have been fully committed to guaranteeing the safety and dignity of Latorre and Girone, as well as the protection of their rights. We have been making all the efforts in order to have them quickly back in Italy and submit them to the investigations conducted by the Italian judicial and military authorities.

To that end, since the outbreak of the crisis the Government have been acting firmly with the purpose of separating this incident – as far as possible – from the set of bilateral relations with India. […]

Strengths and weaknesses have been clear from the very beginning. The most evident weakness was for Italy the factual situation: our two men were detained in Indian territory. The only way to have them back, to protect their dignity and safety, was to resort to all the legal means existing in the Indian juridical system, as well as to carry out a wide-ranging international action that could influence the Government of New Delhi. Another clear weakness was the political exploitation of the incident in India, both at local and at national level.

On the other hand, the strengths for Italy were the principles and rules of international law on flag state sovereignty outside the territorial sea and on functional immunity of the members of armed forces. Moreover, following a broad diplomatic action, Italy could rely on the support of our most eminent European, American, African and Asian partners, worried about the risk of setting a detrimental precedent to the peace and to anti-piracy operations. […]

Alongside these matters, other aspects were important in shaping the strategy of the Italian government during the entire crisis. First of all, the government gave priority to the safety of our fellow citizens and companies in India, as well as of their employees. […] India, like Italy, is part to the G-20, the most important global economic governance tool, and has been striving for years for a permanent seat at the U.N. Security Council: due to its growing participation and efforts in international matters, India wants to achieve major influence and credibility in international economic, security, and development matters. What is more, New Delhi has entered into talks with the EU – with a view to signing a Closer Economic Partnership Arrangement – and with the Nuclear Suppliers Group. Both negotiations can be successful only with the active support of Italy, since they are based on consensus.

Keeping this is mind, the government considered that both Italy and India should be aware of the risks this crisis could pose and therefore should not rush towards the adoption of measures that might hinder their economic relations. We have always acted with the utmost restraint.

I will now describe shortly what happened in the last three months. A first permit was requested to the Indian authorities in December 2012, during the Christmas holidays. A second, one-month permit was requested in February [2013] in order for the two marines to vote in the political elections.

Latorre and Girone returned to Italy on 23 February. Soon after, on 27 February, an inter-ministerial meeting was launched, involving the Presidency of the Council of Ministers, the Minister of Foreign Affairs, the Minister of Defence and the Minister of Justice. The purpose was to evaluate all the options Italy had with regard to the issue of conflict of jurisdiction, in the new light cast by the Judgment of the Indian Supreme Court of 18 January 2013.

The Supreme Court Judgment determined for the first time that the facts did not occur in Indian waters and that the State of Kerala did not have jurisdiction over the case. However, the Supreme Court denied the jurisdiction of the flag State of the ship and did not recognise the functional immunity of our military personnel. […] This ruling also stipulated that the case be submitted to a special court in India, to be set up post factum to try the two marines. The Supreme Court also indicated that the case of the two marines was to be dealt by the two governments in the context of the United Nations Convention on the Law of the Sea (UNCLOS), which makes reference in Article 100 to the duty of signatory States to cooperate in the repression of piracy […].”

After the inter-ministerial meeting held on 27 February, another meeting was held, with a view to open consultations with the Indian government in order to establish an arbitration procedure. […] The first step – let me make it clear: a step approved by all involved institutions – was to instruct our ambassador in New Delhi to request the Indian Foreign Minister to open bilateral negotiations, especially with regard to the legal issues. Accordingly, on 5 March ambassador Mancini spoke to the India deputy minister in charge of the relations with Europe, ambassador Vyas, […] but our request was firmly declined.

On 8 March, another meeting was held at Palazzo Chigi [seat of the Italian government] with senior officers of the Presidency of the Council, of the Ministries of Foreign Affairs, Defence, and Justice, as well as of the Avvocatura dello Stato [the government legal service]. It was decided to communicate formally to the Indian Government, as well as to all international partners, the entering into a dispute with India concerning the exercise of jurisdiction – a dispute to be settled through the international arbitration mechanisms.

That decision had strong legal and political grounds. The marines had returned to Italy with a permit and were supposed to go back to India by 22 March. However, India had refused to comply with its Supreme Court Judgment, in so far as it called for consultations in accordance with Article 100 UNCLOS. This modified radically the legal framework in which the Government had signed the affidavit in which both the government and the two marines committed to their return to India.

Another serious legal issue […] concerned the punishment that could be meted out by the special court. Without any consultation it was not possible to […] have cast-iron guarantees that even the death penalty could be meted out.

On 8 March, there was also a meeting at the Ministry of Justice. The ministers involved discussed three pivotal issues: firstly, whether the special court was compatible with the principles of international law, secondly, whether the same court was compatible with our constitutional principles on due process of law, thirdly, the absolute exclusion of the application of the death penalty. It was also decided to propose to the Presidency of the Council to send formal communications to the Indian Government, as well as to our international partners,  the United Nations and the European Union on 15 and 16 March […] and that the two marines would remain in Italy until the end of the arbitration, or at least until the beginning of a trial that offered adequate guarantees. […]

On that same day, the Presidency of the Council […] – with the approval of all involved institutions – decided to initiate formally a dispute with India on the conflict of jurisdiction and on the request for arbitration. This decision was made because we were worried that the Indian Government could speed up the process and thus limit our legal arguments: if the special court were established, not only would our legal arguments be late, but also any bilateral negotiation would become meaningless, both from a legal and from a substantial point of view. […]

We also informed the Indian chargé d’affaires of our stance. We expressed our regret at the Indian Government refusal to start talks and we reiterated that we were fully available to hold consultations – even informally, between the legal experts of the two countries. On this matter, as well as on any other international issue, Italy has always been fully available and open to dialogue. […]

At the same time, we informed the U.N. Secretary General Ban Ki Moon, who immediately and publicly stated that he hoped that India and Italy could find a resolution in compliance with international law. […]

As a result, India strenghtened its position and issued aggressive statements. […] The Indian government gave ambassador Mancini a Supreme Court order not to leave the country, and informed the airports of New Delhi as well. This was a blatant violation of the Vienna Convention, and it was followed by the decision of the Government to waive the diplomatic immunity of the Ambassador himself. The only precedent to such a decision is the Iran hostage crisis of 1979.

This provoked a groundswell of concern in the international community, with calls for the respect of international law and the Vienna Convention. On 19 March, the High Representative of the Union for Foreign Affairs expressed her solidarity for the violation of diplomatic immunity. In the meantime, the Italian Government asked the U.N. Secretary General to appoint a respected international personality to act as a mediator, as a facilitator between India and Italy on the matter.

Several diplomatic talks followed – urged by the European Union, the international community and Secretary General Ban Ki Moon […]. In this situation, New Delhi threatened the adoption of retaliatory measures which might affect our bilateral economic relations as well. […]

On 20 March, two days before the end of the permit, there was a new development: we were informed by the Indian authorities (in particular by one member of the Government) that they might be willing to resolve the dispute rapidly, provided that the two marines returned to India by 22 March. For these reasons, the Inter-ministerial Committee for the Security of the Republic met urgently on 20 and 21 March (with the participation of the President of the Council and of the Ministers of Foreign Affairs, Internal Affairs, Justice, Defence, Economic Development, and Economy and Finance) in order to analyse the situation and find a proper solution, as was asked by the international community as well.

The Presidency of the Council and the Ministers involved […] considered that if Latorre and Girone were available to return to India, then this new stance could prevail over the former one, since it would make it possible to re-open negotiations with India in a less hostile context – provided that India gave due guarantees.

[…] [A]s Minister of Foreign Affairs I made clear to my fellow ministers that in my opinion four guarantees were to be accepted by the Indian Government before returning the marines to India. I deemed it necessary to maintain our credibility in the eyes of India and of all our international partners, to fully guarantee the safety of our marines, to reaffirm vigorously the principle of consultations in accordance with Article 100 UNCLOS and to immediately restore the diplomatic immunity of our ambassador.

The President of the Council of Ministers had appointed the Undersecretary De Mistura as Special Envoy for the government. He considered the guarantees received from India to be adequate. These guarantees will have to be evaluated for their effect in practice and in the light of our firm commitment to settle this matter as soon as possible with the permanent and legitimate return of our two marines. […]

As Minister of Foreign Affairs, I had expressed serious doubts as to the off-hand decision to return the marines to India. My voice went unheeded, and I deeply regret it. Our marines were in Italy and the legal framework strenghtened unequivocally our jurisdiction over the case. Our diplomatic action had received broad endorsement – even broader after the waiver of our ambassador’s immunity. The international community had shown growing support to the government’s consistent approach in protecting our country’s fundamental values, our Armed Forces, our economic interests and those of our fellow citizens living abroad.

I have waited […] until today – I wanted to be here in the Parliament to speak openly and express my position publicly. Because of my stance I cannot be part to this government anymore and therefore I resign.

I resign because of the following reasons. Firstly, my reservations on the return of our marines to India did not produce any effect because the decision taken was different. Secondly, I fully sympathise with our marines and their families. Thirdly, I strongly believe now, just like I have believed for forty years, that the honorability of our country, of our Armed Forces and of the Italian diplomacy must be maintained. […]”

The full version of the Minister’s statement can be found – in Italian – at the following link:

http://documenti.camera.it/leg17/resoconti/assemblea/html/sed0004/stenografico.pdf

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