The President of the Council of Ministers on the Enrica Lexie Case and the Resignation of Minister Terzi

CHAMBER OF DEPUTIES, XVII LEGISLATURE, 5th MEETING, 27 MARCH 2013.

Following the resignation of the Minister of Foreign Affairs, Giulio Maria Terzi di Sant’Agata (whose statement before the Chamber of Deputies can be read here), the Italian President of the Council of Ministers, Senator Mario Monti, was asked to report at the Parliament on the Mr. Terzi’s resignation, as well as more broadly on the recent developments of the ongoing dispute between Italy and India. The dispute broke out after the arrest by Indian authorities of Sergeant Major Massimiliano Latorre and Sergeant Salvatore Girone, 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 follow some excerpts from Mario Monti’s statement before the Chamber of Deputies.

At the outset, Senator Mario Monti recalled that in December 2012, during the Christmas holidays, the Indian authorities granted Latorre and Girone a permit to return to Italy. A second permit was issued in February 2013, in order to make it possible for the two marines to vote in the political elections. He then specified:

“[i]n both cases the government, as well as our two soldiers individually, formally committed – by means of an affidavit – to the return to India at the end of the agreed period. These formal commitments were given by the government within the limits laid down by our constitutional system”.

Meanwhile, on 18 January, the Indian Supreme Court ruled on the matter. President Monti commented as follows:

“[…] [T]he 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 was silent on the issue of functional immunity of organs of the State. On the contrary, it held that the Union of India had jurisdiction to try the two marines. In particular, the Supreme Court – stating contradictory grounds and without adequate reasons – claimed the sovereign right of India to exercise jurisdiction in the stretch of sea where the incident occurred, in contravention of a provision of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The Convention limits the powers of the coastal State in the contiguous zone – between 12 and 24 miles – to specific cases, without including the incident of navigation. 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 indicated that this special court would in the first place consider whether the case of the two marines was to be dealt by the two governments in the context of the UNCLOS, which makes reference in Article 100 to the duty of signatory States to cooperate in the repression of piracy”.

He then illustrated the action taken by Italy in the light of the Supreme Court’s decision, and the events that followed:

“On this basis, the Government promptly took action to open consultations with the Indian Government in order to establish an arbitration procedure. In this way, it could have been possible to solve the most controversial issue, i.e. that of jurisdiction, objectively and in a neutral venue. However, our request for bilateral consultations met with lack of cooperation on the part of India”.

“[…] [O]n the Indian side, there had not even been any willingness to inform us of the characteristics of the special tribunal which was to be constituted. This resulted in the possible violations of constitutional and international law principles, thereby voiding the terms of the affidavit. Let me remind you that the affidavit expressly linked the commitments given by Italy to the necessity of putting them in place – I quote – ‘within its constitutional powers’. As you can see, this verification of constitutional compatibility was not a pretext, but rather it was necessary also and above all in the light of the commitments given by Italy. Our action has always aimed to ensure the context in which our two Italian soldiers were to be tried: a fair trial within reasonable time, and the exclusion of penalties not compatible with our constitutional system. On March 11 we informed India of our request to open bilateral consultation on the basis of Article 100 UNCLOS, and that our two soldiers would not return to India, pending the start of a consultation process between Rome and New Delhi – even informally, between the legal experts of the two States”.

As a result, the Indian Government strenghtened their position. What was more, the Supreme Court issued an order not to leave India to the Italian Ambassador, Mr. Daniele Mancini. Senator Mario Monti stated that, at the same time, India indicated that she could be open to dialogue, provided that the two marines returned to India by 22 March, as previously agreed. He then recalled in these terms the subsequent action on part of the Italian Government:

“[…] I decided to take personal responsibility for the government’s conduct at this crucial stage. Thus, on 20 and 21 March I convened two meetings of the Comitato Interministeriale per la Sicurezza della Repubblica (Interministerial Committee for the Security of the Republic – CISR), which met in order to analyse the situation in light of these developments”

“[…] It was noted that there was a serious and objective risk of Italy being isolated internationally if a major crisis with India results. Therefore, the CISR (the CISR is chaired by the President of the Council of Ministers, and it consists of the Ministers of Foreign Affairs, Defence, Justice, Internal Affairs, Economic Development, and Economy and Finance) unanimously agreed on the need to verify whether, on the part of India, it could be possible to receive formal guarantees on two fundamental issues: firstly, the conditions and dignity of our two marines in the case of their return to India; secondly, the exclusion of the death penalty from the new special court. Other assurances, as part of the same strategy aimed at reopening the dialogue with India, were examined, but were not considered crucial preconditions. They related, in particular, to the start of the arbitration process in accordance with Article 100 UNCLOS, and to the restoration of our ambassador’s immunity. This latter issue was in fact extremely important, and Italy has done and will do everything in her power to reaffirm this fundamental principle. However, in this case the question would be resolved by the return of the marines by the agreed date, as the Indian authorities guaranteed to the Undersecretary for Foreign Affairs De Mistura. These written assurances were received in the afternoon of 21 March”.

The two marines thus returned to India by the agreed date. The Minister of Foreign Affairs, Mr. Terzi di Sant’Agata, expressed before the Chamber of Deputies his unease with the decision taken by the government and declared his intention to resign. On his part, the President of the Council of Ministers strongly denied that Mr. Terzi had voiced his dissent in any of the Government meetings that led up to the decision to return the two marines.

The full Italian version of the statement made by the President of the Council of Ministers can be found at:

http://documenti.camera.it/leg17/resoconti/assemblea/html/sed0005/stenografico.pdf

On the same day, the President gave a similar speech before the Senate of the Republic (XVII Legislature, 6th Public Meeting), which can be read at:

http://www.senato.it/service/PDF/PDFServer/BGT/698406

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