Friday, March 15, 2013

The Oil Tanker Incident: Things Between Italy And India Become… Complicated

Posted by Peter Quennell





India and Italy have long been close allies but an incident a year ago perversely reverberates on.

We posted on it here and here with some excellent commentary from our Indian posters Sara and Chami.

Italy maintained that the shooting of two fishermen who the soldiers above had wrongly assumed were pirates happened in international waters, and the oil-tanker company offered to pay substantial damages to the grieving families, which they appeared at one point to have accepted.

But though the tanker was long gone from the port of Kochi, the soldiers remained under house arrest, and in the state of Kerala there remained a disposition to put them on trial though the central government told Kerala they had no jurisdiction. On the say-so of the Italian Ambassador in New Delhi that they would return, the soldiers were recently allowed to return to Italy.

Now it seems Italy doesnt want to send them back. In quick retaliation, the Indian mission to Rome may be in the process of being diplomatically downgraded, the Italian Ambassador to India is being prevented from leaving India, and the Indian Express sees a sardonic side to all of this. 

To complicate the lives of the diplomats, Sri Lanka has arrested 53 Indian fishermen which it said were illegally fishing in its territorial waters, and is still holding 19 of them captive. And Italy is seeking to have a number of CIA operatives returned to Italy to stand trial there for kidnapping.

One bit of genuine good news is that piracy is at a five year low. Phew. Thanks for that one.


Posted by Peter Quennell on 03/15/13 at 08:46 PM in The wider contextsItalian context


Comments

Thanks for bringing up this case Peter. I think once the Italian soldiers set foot on Indian soil, it’s obvious India was going to try to put them on trial. And once they were permitted to go back it Italy, it was almost as obvious that the Italians weren’t going to send them back. Hopefully the fishermen will get a civil settlement with the oil-tanker company and that will be the end of it.

Posted by brmull on 03/15/13 at 10:13 PM | #

No, Italy did send the two men after the Christmas holidays. In fact, they came back well before the scheduled day when most of us were talking that they will just stay back!

The most worrying problem is that the case is taking too long… In this matter, Italy does have a very valid point.

According to the Indian experts, the Italian Ambassador has given an undertaking to the supreme court of India and by doing so has forfeited his diplomatic immunity granted under Vienna convention.

Add to that the local politics.

The family of the killed men are very much interested in accepting some form of financial compensation (these are poor fishermen on the coastal area) but the local politicians are also getting involved…

These two articles are from a respected Indian newspaper:

http://www.telegraphindia.com/1130312/jsp/nation/story_16662039.jsp

also see:

http://www.telegraphindia.com/1130313/jsp/nation/story_16666531.jsp

Posted by chami on 03/16/13 at 12:07 AM | #

Hello Chami,

I thought you might be interested in reading what the Italian POV is on what is now known as the “Mancini matter”:

http://www.repubblica.it/esteri/2013/03/15/news/crisi_mar_nuova_delhi_conferma_allerta_aeroporti_l_ambasciatore_italiano_non_pu_lasciare_il_paese-54618938/?ref=HREC1-7

I do not have the time to translate the whole article. However, I did translate what the diplomats’ union wrote:

The diplomats’ union has intervened on the matter. India is violating the Vienna Convention, and in particular Article 44, which is designed to prevent diplomatic agents from “being taken hostage in the line of duty,” the SNDMAE (http://www.sndmae.it) writes in its statement. “The decision taken by the Indian authorities, which restricts the Ambassador’s movements, clearly contrasts with the provisions of Articles 29, 31 and 44 of the Vienna Convention on Diplomatic Relations, ratified by India on 14 November 1965.” Article 44 in particular “like all diplomatic immunities, is designed to prevent diplomatic agents from being held personally responsible for the actions of their governments,” the union writes.

Vienna Convention on Diplomatic Relations: http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

Posted by Clander on 03/16/13 at 03:54 AM | #

The post should have made clear that there were two visits home, one for Christmas, and one for the recent election in Italy. It is after the second visit that the Italy military and foreign office said in effect “Enough is enough.”

So the soldiers are still there. The global shipping authorities have clear satellite-tracking evidence that the incident happened in international waters, and the Delhi government had conceded as much (and told Kerala as much).

I sat in various UN meetings where Italy and India were represented and both were always low-key and constructive. I dont recall either ever taking a hard line. But messy things, these federal systems. Central power is often not real power.

Posted by Peter Quennell on 03/16/13 at 05:43 AM | #

@Peter,

I have heard several times that if India had made the slightest mistake, Italy would have hauled her to any of the several International bodies. India does not have the political clout of Italy (as a member of EU) and have very poor muscle in public relations (PR). The case was being heard in the Supreme Court from this year and the marines had excellent lawyers.

The basis of the Supreme Court order is the undertaking given by the Italian Ambassador. The case is coming up for hearing on this monday (March 18) but one or the other party will invariably ask for more time.

One commentator wrote recently:

The issue of the Italian marines, seen in isolation, would appear like an embarrassment. However, read with the investigations in Italy into the bribes given for the purchase of AgustaWestland helicopters and the real estate greed of Vadra, there is every danger that the Gandhi family could suffer huge collateral damage. The mood in Italy is dead against any return of the absconding marines to India. But Indian national pride could equally come to the fore if New Delhi attempts a workable compromise solution. Already there are dark hints of a quid pro quo that would involve the Italian authorities going very slow on the inquiries into the bribes allegedly paid by AgustaWestland.

It is never so simple as it appears.

A good lawyer knows the law. A great lawyer knows the judge

Posted by chami on 03/16/13 at 12:47 PM | #

Hi Chami

Interesting. A new depth. Here’s a new take: http://timesofindia.indiatimes.com/india/Italian-envoy-runs-out-of-option-in-Supreme-Court/articleshow/19011670.cms  As you say, the Congress Party v The Rest!

India actually has excellent clout in UN bodies as a populous and respected democracy. There is no obvious body for Italy to appeal to, except maybe now on the basis Clander mentions, to the World Court.

The one agency with some jurisdiction all along was the UN’s WMO in London, which established quite fairly pro-Italy last year that the ship was in international waters, with which [someone in] New Delhi then agreed.

The US now has incredibly strict rules against any companies bribing anyone anywhere for contracts because of past minefields like this, and Italy is already investigating so I guess they have such a law too.

One thing it now turns out that Italy and India have in common is unbending Supreme Courts. We can admire them both for that.

Posted by Peter Quennell on 03/16/13 at 05:26 PM | #

Here’s an even-handed analysis out of India which notes that the correct jurisdictions for the maritime dispute would be the International Tribunal for the Law of the Sea in Hamburg, the International Court of Justice in The Hague, or an ad hoc arbitration tribunal.

http://blogs.wsj.com/indiarealtime/2013/03/15/italy-vs-india-untangling-a-mess/

When it announced the marines would not return to India as promised, Italy said India’s position is contrary to international law.

Italy points to the 1982 United Nations Convention on the Law of the Sea, which says that a ship on the high seas falls under the exclusive jurisdiction of its “flag state.” In the case of the Enrica Lexie, that would mean Italy.

And If Italy believes the Supreme Court’s restraint order on its ambassador contravenes the Vienna convention, it can take India to the International Court of Justice to resolve this dispute.

Unfortunately for India this story of a gang rape of a Swiss tourist and gang rapes of many Indian women is simultaneously getting a lot of international play. Google News has nearly 1000 hits.

http://india.blogs.nytimes.com/2013/03/16/swiss-tourist-gang-raped-in-central-india/ 

The electoral impasse in Italy is getting a lot of play too. Punt this tanker case to the international bodies asap, guys, where good face-saving things can happen on the quiet.

Posted by Peter Quennell on 03/16/13 at 11:41 PM | #

For India, at least at this moment, ‘any compromise’ may appear as a weakness. It is best to pass it on the courts and then plead helplessness. Indian judges, mostly the supreme court judges, are usually respected but sometimes they too have been blamed for ‘activism’. In the last ten years or so, the senior judges of the Indian supreme court have been quite assertive and have worked hard to restore the people’s faith in the judiciary.

Why Italy has not approached any of the international bodies so far baffles most of the Indians. Perhaps their bereaucarcy is equally great! But the best solution lies there- and both India and Italy will save their own honour- and move forward with dignity. In fact, it will not even get the routine publicity it is getting on the TV these days,

Indians are most embarassed about the rape incident that took place in one of the most remote and law-less region of the country. But still, the US leads the world in rape (just behind Botswana, Sweden and some other equally third world countries) and still has the classic don’t care attitude.

One commentary recently reads:

Indian reaction to the New Delhi gang rape is in many ways more promising than American reactions to US rapes. Take the Steubenville, Ohio, case, which hasn’t generated the same public outrage as the case in India. Indian protesters’ calls for justice are a heartening sign of progress.

Read the full commentary here: http://www.csmonitor.com/Commentary/Opinion/2013/0315/Steubenville-Ohio-rape-and-India-gang-rape-show-India-isn-t-so-backward

I think it is going to cool down and solved quietly with discussions and without any bad feelings. There are too many things at stake.

Posted by chami on 03/17/13 at 08:28 AM | #

Hi Chami

Its hard to gauge from outside what was going on, I think we agree, but several times it seemed to be over and nobody in Italy foresaw this roller-coaster. In the last few days Italy might have had reason to assume that no fair trial was any longer possible. It’s painful for countries to initiate cases against allies.

Italy has now issued a travel advisory for Italian visitors to India and especially to Kerala. http://news.yahoo.com/italy-issues-india-travel-warning-over-marines-standoff-122433136.html

The point of my mentioning the rape case was simply to show that India is in the world news in another case. Not to whack it!

The article you linked to correctly pointed out that rapes in many countries are barely reported so although the rape record here is appalling nobody within the UN would confidently rank countries.  The messiness of the global statistics is discussed here:  http://messymatters.com/rape/ 

Like you I cant wait for this to go quiet. I hope both India and Italy now examine their systems, perhaps starting with why Italian soldiers ride on civilian tankers. Other countries sent their warships, and their tanker owners hired their own onboard security.  .

Posted by Peter Quennell on 03/17/13 at 06:00 PM | #

Looks like finally some hopeful movement toward the middle in this sad affair and at the end of the road, maybe better systems.

The travel restriction on the Italian Ambassador has been lifted by the Indian Supreme Court, a special court is being considered for the Italian marines, and the charges have been downgraded so at least there could be no death penalty.

Meanwhile it is being reported (though only in Italian)(Chami and Sara might take note!) that an Italian recreation of the actions of the tanker has placed some blame on the captain for not sounding his horn more, not maneuvering the ship more, and not ordering the use of water canons.

There was a first hint at this over over a year ago; I posted this comment on 4 march 2012.

Captain Umberto Vitelli, meet Captain Francesco Schettino? It now seems the ship’s captain could have calmed Italian reactions very quickly by conceding that he did several things wrong.

He seems to have put the ship in the wrong place, come far too close to a fishing vessel, invented a radioed pirate alert, allowed shooting long before it was absolutely necessary, and did not switch the bridge’s voice recorder to preserve permanently what was said there. One report on this:

http://www.deccanchronicle.com/channels/nation/south/noose-tightens-enrica-lexie-captain-umberto-vitelli-922

But Italian opinion toward India seems to be adjusting quickly, much quicker than American opinion ever did toward Italy in Meredith’s case.

 

In effect systems did exist but the captain failed to use them. 

And back in India, one commentary points out that a lot of victims of piracy (including deaths) have been Indian seamen, and there is some peril to Indian nationals if the fight against piracy is needlessly chilled.

In each country opinion seems still a bit inflamed and solidly on the side of their nationals, and in Italy the lights of the Colosseum the other night were dimmed.

We need another planet to declare war on. That will bring us all solidly together. Okay, Pluto…

Posted by Peter Quennell on 04/08/13 at 10:32 AM | #


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