The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel on Board
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Journal of Conflict & Security Law V
C Oxford University Press 2021.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-
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doi:10.1093/jcsl/krab014
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The Enrica Lexie Incident and the Status of Anti-Piracy
Security Personnel on Board
Marco Odello*
Abstract
This article focuses on a specific issue that emerged in the Arbitral Award on the
Enrica Lexie case delivered in May 2020. The dispute involved Italy and India in
relation to the killings of Indian fishermen by Italian marines in the waters outside
India. The incident raised several legal issues concerning the application of the law
of the sea, the legal determination of anti-piracy actions by States and jurisdictional
immunities. The purpose of this article is to focus on one specific issue that emerges
from this case: the uncertain legal status of security personnel deployed on private
vessels in relation to anti-piracy protection. The first part of the article shall con-
sider the status of military personnel deployed on merchant ships for anti-piracy
protection. The problem is central to the matter because, depending on the defin-
ition of their status, limitations on the exercise of jurisdiction by other States may
emerge. The second part of this article discusses more broadly the status of military
and private security personnel in actions that could be defined as ‘international
policing or security’ activities, which should be better clarified through better inter-
national cooperation, exchange of information and clear rules. A more defined
legal setting for anti-piracy activities would prevent possible future disputes in
similar cases. Furthermore, it would be useful to have clearer rules that could be
applied also to face other types of crimes that occur on the sea.
‘[T]here is no more important way to avoid conflict than by providing
clear norms as to which state can exercise authority over whom, and in
what circumstances’.1
1. Introduction
On 15 February 2012, an incident occurred in the waters surrounding India. An
Italian privately owned oil tanker under Italian flag, the Enrica Lexie, was
*
Marco Odello is Reader in Law at Department of Law & Criminology, Aberystwyth
University, Aberystwyth, UK. E-mail: mmo@aber.ac.uk. The author wished to thank
the two anonymous peer reviewers for their valuable comments that helped him to
improve the academic quality of this article. All mistakes and inaccuracies rest with
the author.
1
R Higgins, Problems and Process: International Law and How We Use It (OUP 1994)
56.
..............................................................................
Journal of Conflict & Security Law (2021), Vol. 00 No. 0, 1–262 of 26 Marco Odello
travelling from Singapore to Djibouti, leaving the coast of India, and sailing
from Neendakara harbour in Kollam district (Kerala State—India). At a certain
point, a small boat, the St Antony, started approaching the ship. Two Italian
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marines, from the Italian Navy—Chief Master Sergeant Massimiliano Latorre
and Sergeant Salvatore Girone—who were deployed on board for security,
mainly acting as anti-piracy escort, fired against the boat, thinking that the
boat was under a pirate attack. Consequently, two Indian fishermen on the St
Antony were killed, other members of that crew were injured and damage to
the boat resulted from the incident. The Enrica Lexie was intercepted by the
Indian Coast Guard at 20.5 nautical miles from the coast of Kerala and com-
pelled to dock at the Kochi Port. The Indian authorities arrested the two Italian
marines who were charged with homicide, receiving a First Information Report
on 19 February 2012 under the Indian Criminal Code.2
These are, in short, the facts: two Indian fishermen died following fire shots
exploded from the Enrica Lexie. However, several issues were raised during the
different stages of the dispute. For instance, it was relevant to determine
whether the exact position of the Enrica Lexie, at the time of the incident,
was in India’s territorial waters, in its exclusive economic zone (EEZ), in the
contiguous zone3 or in international waters.4 Why the shipmaster of the Enrica
Lexie agreed to follow Indian authorities request to go back to the Indian har-
bour? Why the two Italian marines were arrested by Indian authorities, as they
were members of the Italian armed forces on duty, and then subjected to Indian
criminal investigations and proceedings? All these questions were raised and
discussed in the exchange of correspondence between the two States and are not
the object of detailed analysis in this article.5
Since 2012, the dispute has been leading to a series of investigations and deci-
sions in Indian courts6 and to diplomatic exchanges between Italy and India.7 For
instance, on 18 January 2013, the Supreme Court of India claimed that the
2
India, Penal Code, 1860 Act No 45 of 1860 (6 October 1860) ss 34 and 302.
3
India, The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other
Maritime Zones Act (1976) Act No 80 (28 May 1976).
4
On the meaning of different maritime zones, see: T Treves, ‘Codification du Droit
International et Pratique des États Dans le Droit de la Mer’ Collected Courses of the
Hague Academy of International Law 223 (Springer 1990) 9, 61–217.
5
See A Mishra, ‘Case Comment: Enrica Lexie’s Case–India v Italy’ (2017) 6(1) Christ
University Law Journal 111–17; UK Raha and KD Raju, ‘The Enrica Lexie Case at
the Permanent Court of Arbitration: An Analysis’ (2016) 56(2) Indian Journal of
International Law 221–38; N Ronzitti, ‘Il Caso Della Enrica Lexie e i Rapporti
Italia-India’ in A Colombo and E Greco (eds), La Politica Estera Dell’italia (Il
Mulino 2013) 113–35; H Sankar, ‘Jurisdictional and Immunity Issues in the Story of
Enrica Lexie: A Case of Shoot & Scoot Turns Around!’ (EJIL Talk!, 25 March 2013).
6
See Massimiliano Latorre v Union of India (2012) 252 Kerala LR 794 (High Court of
Kerala); Republic of Italy v Union of India, Writ Petition (Civil) No 135 of 2012
(Supreme Court).
7
For a full analysis of these issues, see N Ronzitti, ‘The Enrica Lexie Incident: Law of
the Sea and Immunity of State Officials Issues’ (2013) 22(1) The Italian Yearbook of
International Law Online 1–22.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 3 of 26
incident occurred in the contiguous zone,8 within the 24 nautical miles, and that it
could exercise criminal jurisdiction.9 It also ruled that the High Court of Kerala
was not entitled to prosecute the case, but that ‘it is the Union of India which has
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jurisdiction to proceed with the investigation and trial of the Petitioner[s]’, and
established that India had to ‘set up a Special Court to try this case’.10
In April 2013, the Indian National Investigation Agency, the agency empowered
to combat terrorism-related crimes in India, was entrusted with the prosecution of
the case. The Agency’s legal action against the two Italian marines was based on
the Indian Suppression of Unlawful Acts (SUA) Act,11 by which India imple-
mented the Convention for the SUA against the Safety of Maritime Navigation
(SUA Convention).12 Following reactions and concerns not only from Italy but
also from international institutions, likeNorth Atlantic Treaty Organization
(NATO)13 and the European Union (EU),14 the Indian authorities excluded the
allegations of maritime terrorism against the Italian marines.15 This issue shall be
considered below in relation to international cooperation and for clarification of
applicable rules including the status of personnel involved in anti-piracy activities.
The final stages of the dispute reached The Hague in 2016, when the first
Arbitral Tribunal (the Tribunal) public hearing took place. The Arbitral Award
(the Award) was released on 21 May 202016 and published, with amendments,17
on 10 August 2020.
8
See on the contiguous zone, S Oda, ‘The Concept of the Contiguous Zone’ (1962) 11
International & Comparative Law Quarterly 131; AV Lowe, ‘The Development of the
Concept of the Contiguous Zone’ (1981) 52 British Yearbook of International Law
109.
9
Republic of Italy v Union of India (2013) 4 SCC 721 [Italy v India] para 110.
10
ibid para 111.
11
India, Ministry of Shipping, The Suppression of Unlawful Acts Against Safety of
Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No
69 (20 December 2002) accessed 23 April 2021.
12
UN General Assembly, Convention for the Suppression of Unlawful Acts Against the
Safety of Maritime Navigation (10 March 1988) No 29004 accessed 23 April 2021.
13
NATO, ‘Joint Press Point with NATO Secretary General Anders Fogh Rasmussen
and the Prime Minister of the former Yugoslav Republic of Macedonia, Nikola
Gruevski’ (Brussels, 12 February 2014) accessed 23 April 2021.
14
European Parliament, ‘Resolution on the Case of the Two ITALIAN ‘Marò’ (15
January 2015) 2015/2512(RSP).
15
See ‘MHA Withdraws Sanction to NIA to Prosecute Marines under SUA’ Business
Standards (New Delhi, 7 March 2014) accessed 2 April 2021.
16
PCA, The ‘Enrica Lexie’ Incident, Italy v India, Award, Case No 2015-28 (21 May
2020).
17
In accordance with the Rules of Procedure, as amended by Procedural Order No 7,
the Parties were provided with the opportunity to consider whether any parts of the
Award should be designated as containing ‘confidential information’.4 of 26 Marco Odello
The main outcome was that two Italian ‘Marines are entitled to immunity . . .
and India is precluded from exercising its jurisdiction over the Marines’.18
Therefore, it affirmed that ‘India must take the necessary steps to cease to
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exercise its criminal jurisdiction over the Marines, and that no other remedies
are required.’19
It may be worth noting that the Tribunal decided to avoid any decision con-
cerning the non-material damage suffered by the two marines as a result of
India’s unlawful exercise of jurisdiction over them, including restriction of their
liberty, and the economic material damage suffered by the shipping company
due to the detention of the Enrica Lexie, despite claims that were expressly
made in Italy’s submissions regarding remedies.20
The final outcomes of this complicated process were reached on 15 June 2021
when the Indian Supreme Court formally accepted the compensation offered by
the Italian government of 1.1 million Euros and it contextually declared the
extinction of all criminal proceedings against the two Italian marines and dis-
posed of all related pending matters before the court.21
The case raises several legal questions but this article shall not consider all the
legal components that surround the Award.22 The scope is much more limited in
the sense that it would focus on the legal problems related to the use of security
personnel on private vessels for anti-piracy purposes,23 particularly in relation
to their regulation and the relevance of immunities from foreign jurisdictions.24
This matter, which was defined as an ‘incidental’ aspect in the Award,25 should
be the central question for the solution of potential future legal disputes. In fact,
once the legal status, under international law, of the two marines were clarified,
the conflict of jurisdiction between the two States and the possible claim of
procedural bar, based on applicable immunities, would have been much simpler.
However, if the two States wanted to focus their claims, as they should have
done, on immunities, they could have submitted the case to another tribunal or
use alternative dispute resolution like mediation. The submission of the case to
the International Court of Justice (ICJ) was limited, as we shall see below, by
the fact that India did not accept its jurisdiction on matters related to United
18
Award, Dispositif, s B, para 2.
19
ibid para 3.
20
Award, para 69(c).
21
India, Supreme Court, Civil Appellate Jurisdiction, Order of 15 June 2021 in Special
Leave Petition (Civil) No 20370 of 2012: Massimilano Latorre and Ors v Union of
India and Ors, (IA No 58644/2020–for Directions), para 7.
22
For a full analysis of the Award, see N Ronzitti, ‘Il Caso Della Enrica Lexie e la
Sentenza Arbitrale Sulla Controversia Italia-India’ (2020) 103(4) Rivista di Diritto
Internazionale 937–58.
23
See N Ronzitti, ‘La Difesa Contro I Pirati e l’imbarco di Personale Militare Armato
Sui Mercantili: Il Caso Della Enrica Lexie e la Controversia Italia-India’ (2013) 96(4)
Rivista di Diritto internazionale 1073–115.
24
See E Methymaki and C Tams, ‘Immunities and Compromissory Clauses: Making
Sense of Enrica Lexie’ (pts I and II) (EJIL:Talk!, 27 August 2020).
25
Award, para 808.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 5 of 26
Nations Convention on the Law of the Sea (UNCLOS). India accepted the ICJ
jurisdiction through a declaration in 197426 under Article 36(2) of the ICJ
Statute,27 but it included several limitations that could exclude that jurisdiction
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in this specific case. However, the two parties could have agreed on a special
agreement to submit the dispute to the ICJ under Article 36(1) of its Statute and
therefore consider a wider range of legal sources (both treaty and customary
rules) that could be applied to the case, taking it out from the stricter limitations
of UNCLOS. This option would have allowed for a more comprehensive con-
sideration of immunities in relation to other obligations under international law.
Finally, an option could have been the use of mediation, for instance, through
an impartial third party or involving one or more international organisations,
such as the United Nations and/or the IMO. However, as the dispute was not
exclusively related to the law of the sea, as finally decided also by the Tribunal,
a more general jurisdiction could have focused on the real matter of the case.
However, from the allegations presented by the two States, it emerges that
while Italy was focusing on the jurisdictional immunities for the two marines,
India was trying to focus on the rules related to the law of the sea. Therefore,
the choice of a suitable Tribunal was part of the negotiations, based on the
interests of the two States. This phenomenon has been already analysed and
probably is a necessary component of the current system of international law,
and known as ‘forum shopping’.28 The best compromise for the two parties was
therefore the choice of an Arbitral Tribunal under UNCLOS.
The first part of the article shall consider the position of the two marines
deployed on the Enrica Lexie and the decision of the Tribunal. The second part
shall reflect more widely on the problems and legal gaps that emerge in relation
to the protection of merchant ships when using armed personnel, either national
army officers or private security personnel.29 The emerging threats against mer-
chant vessels in different parts of the world,30 the amount of shipping trade31
and the areas affected by criminal activities against merchant vessels, lead to
objective limitations on the use of national army officers to protect the number
26
India, ‘Declaration Recognizing as Compulsory the Jurisdiction of the International
Court of Justice, in Conformity with art 36, para 2, of the Statute of the International
Court of Justice’ (New Delhi, 15 September 1974) 950 UNTS 1974 (No 13546) 16–17.
27
Statute of the International Court of Justice (18 April 1946) UKTS 67 (1946) (Cmd
7015).
28
See J Pauwelyn and LE Salles, ‘Forum Shopping before International Tribunals:
(Real) Concerns, (Im)Possible Solutions’ (2009) 42(1) Cornell International Law
Journal 77–118.
29
See E Cusumano and S Ruzza, Piracy and the Privatisation of Maritime Security:
Vessel Protection Policies Compared (Palgrave 2020).
30
UNSC, ‘High Seas Crime Becoming More Sophisticated, Endangering Lives,
International Security, Speakers Tell Security Council’, SC/13691, 8457th Meeting
(AM) (5 February 2019).
accessed 20 May 2021.
31
UNCTAD, Handbook of Statistics 2020 (United Nations 2020) 70–83.6 of 26 Marco Odello
of private vessels, and show that there is an emerging need to clarify the use of
private security personnel on board.
To discuss the above problems, this article shall consider the following issues:
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• the legal allegations by India and Italy in relation to the dispute in front of
the Tribunal concerning immunities;
• the Award (in particular paras 207–55) concerning the legal status of the
marines on board of the Enrica Lexie;
• anti-piracy practices by States based on international documents (UN and
other international organisations) and Italian legislation and practice;
• Immunities, jurisdiction and security on private vessels;
• legal problems regarding security personnel on board in relation to anti-
piracy and security regulations; and
• conclusions.
2. Legal Allegations by India and Italy in Relation to the Dispute
Before addressing the core issue of this article, it is useful to outline the main
aspects of the arguments that both States used in their dispute, to highlight the
central problem surrounding the legal status of the Italian marines.
After several years of diplomatic negotiations and legal actions in front of
Indian courts and authorities,32 the two Parties finally agreed to submit the
dispute in front of an Arbitration Panel. The international legal claim was filed
by Italy, under the 1982 UNCLOS,33 on 26 June 2015.34 The arbitration pro-
cedure was chosen due to the fact that India, despite its ratification of
UNCLOS, did not accept the competence of either the International Tribunal
of the Law of the Sea (ITLOS) or the ICJ jurisdiction on matters related to
UNCLOS foreseen by Article 287(a) and (b) UNCLOS. Therefore, one of the
few available options was the recourse to arbitration.35
The main points raised by Italy in relation to the two marines, when filing the
request and notifying the Indian government about Italian claims were:
a. India has acted and is acting in breach of international law by asserting and
exercising jurisdiction over the Enrica Lexie and the Italian Marines in con-
nection with the Enrica Lexie incident.
32
See Mishra (n 5); European Parliament (n 14); MHA Withdraws Sanction (n 15); and
Methymaki and Tams (n 24).
33
United Nations Convention on the Law of the Sea (UNCLOS) (10 December 1982),
1833 UNTS 3.
34
PCA-CPA, The Italian Republic v The Republic of India, Notification under art 287
and Annex VII, art 1 of UNCLOS and Statement of Claim and Grounds on Which it
is Based (26 June 2015) accessed 15 May 2021.
35
UNCLOS, art 287, paras 3 and 5.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 7 of 26
b. The assertion and exercise of criminal jurisdiction by India is in violation of
India’s obligation to respect the immunity of the Italian Marines as State
officials exercising official functions.
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c. It is Italy that has exclusive jurisdiction over the Enrica Lexie and over the
Italian Marines in connection with the Enrica Lexie incident.
d. India must cease to exercise any form of jurisdiction over the Enrica Lexie
Incident and the Italian Marines, including any measure of restraint with
respect to Sergeant Latorre and Sergeant Girone.
e. India has violated its obligation under the Convention to cooperate in the
repression of piracy.36
However, the Tribunal observed, that:
before proceeding to the consideration of Italy’s claim concerning the
immunity ratione materiae of the Marines from Indian criminal jurisdic-
tion, or in other words, the merits of Italy’s claim, the Arbitral Tribunal
must first determine whether it has jurisdiction over Italy’s claim.37
At this stage, the Tribunal could have considered that the main dispute was
related to the immunities of the two marines, and therefore declare itself forum
non conveniens, and ask the parties to trigger another jurisdiction. However,
due to the limited options available, the diplomatic tensions between the two
States and because the parties asked the Tribunal to settle the case, it is possible
that the Tribunal decided to confirm its jurisdiction over the case.38
3. The Arbitral Award
The 2020 Award addressed all the questions and claims raised by the two
Parties. It is not the scope of this article to provide a full discussion of the
Award and its outcomes. In this section, the focus is on the arguments and
findings related to the legal status of the two marines, which should have
been clarified since the beginning, and that might have solved several questions
related to the attribution of jurisdiction by the two States and the applicability
of immunities in relation to members of foreign armed forces’ officers. In fact,
once this main legal question was clarified, other claims related to dispute,
including State jurisdiction and law of the sea, would have been probably easier
to define and solve in the analysis of the Arbitral Tribunal.
However, the fact that the dispute was raised under UNCLOS, the main
arguments of the parties were on the application of the provisions related to
the exercise of jurisdiction over the Enrica Lexie. Italy’s main allegation was
36
PCA-CPA (n 34) para 29.
37
Award, para 795; see also para 733.
38
Pauwelyn and Salles (n 28) 83.8 of 26 Marco Odello
‘that the “real issue in the case” and “object of the claim” is the determination
of which State is entitled, under the Convention, to exercise jurisdiction over
the incident of 15 February 2012 and “over the two marines in relation to the
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incident”.’39
Italy’s claim concerning official immunities was made by ‘renvoi’ from
UNCLOS provisions,40 which refer to ‘other rules of international law’, ‘to
the rights and duties of other States’ and ‘other pertinent rules of international
law’ as the treaty does not provide specific rules on immunity of State officials.
India objected to this method of legal interpretation, considering that this was
not the ‘real issue in the case’ and the ‘object of the claim’,41 and that ‘nothing in
UNCLOS concerns or refers to the immunities of military personnel on board
commercial ships’.42
India’s claim was ‘that “the core issue, the real subject matter of the dispute” is
the question whether the Marines are entitled to immunity from criminal pro-
ceedings arising out of the “Enrica Lexie” incident.’43 However, India argued that
Italy’s renvoi argument would “abusively stretch the meaning” of rele-
vant UNCLOS provisions,44 and that ‘any consideration by this Arbitral
Tribunal of immunities issues not envisaged in the Convention, as Italy
urges, would exceed its jurisdiction’.45 Even India recognised the central-
ity of this problem ‘because the core issue of jurisdiction cannot be
settled without deciding on the Marines’ immunity.46
India’s position on immunities was raised to exclude the Arbitral Tribunal’s
jurisdiction on this matter, as ‘it does not mean that it has jurisdiction over the
limited question of immunities’47 because the matter ‘does not concern the
application and interpretation of the Convention’.48
The Tribunal stated ‘that at no point in their written pleadings in this
Arbitration does either Party characterise the dispute between them as one
primarily relating to immunity.’49
Finally, the Tribunal framed the legal question under consideration in the
following terms:
that the Parties’ dispute is appropriately characterised as a disagreement
as to which State is entitled to exercise jurisdiction over the incident of 15
39
Award, para 223.
40
UNCLOS, art 2, para 3; art 56, para 2; and art 58, para 2.
41
Award, para 740.
42
ibid para 741.
43
ibid para 226.
44
ibid para 744.
45
ibid para 742.
46
ibid para 753.
47
ibid.
48
ibid.
49
ibid para 242.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 9 of 26
February 2012 involving the “Enrica Lexie” and the “St. Antony”, which
raises questions under several provisions of the Convention. . . [and that]
[t]he dispute may raise, but is not limited to, the question of immunity of
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the Marines.50
This clarification shows the willingness of the Tribunal to assert its compe-
tence to address the case. This was achieved by linking the two elements of
jurisdiction and immunities in the same claim and therefore by safeguarding the
legal claims by the two parties to the dispute. The Award addressed the matter
on immunities in section V(C) from paragraphs 732 to 910 and it shall be
discussed later in this article when considering the status of the marines and
their immunities. However, before analysing those aspects, it is useful to con-
sider some elements related to the fight against piracy. Outlining some funda-
mental aspects of international and Italian legal rules and guidelines may be
useful to understand not only the terms of the dispute, but also some legal
problems that shall be discussed in the second part of this article.
4. Anti-Piracy Practices based on International Documents and
Italian Legislation
The two marines were on board of the Enrica Lexie as Vessel Protection
Detachment (VPD)51 following international practices adopted by States to
fight piracy and protect vessels from attacks. The international responses to
piracy have not been uniform and results in a series of initiatives by individual
States and by different organisations. For instance, following several United
Nations Resolutions52 some States, including Italy, participated in some military
operations aimed at combating piracy, such as NATO’s ‘Ocean Shield’,53
EUNAVFOR’s ‘Atalanta’,54 EUCAP’s ‘Nestor’55 and the Combined Task
50
ibid para 243.
51
Italian law defines the teams, in case of military personnel, as Nuclei militari di
protezione (NMP) [Military protection teams], which are different from private se-
curity guards and contractors; see Italian Ministry of Defence, Decreto 1 Settembre
2011, Gazzetta Ufficiale Serie Generale no 212 (12 September 2011) [Individuazione
degli spazi marittimi internazionali a rischio di pirateria nell’ambito dei quali puo’
essere previsto l’imbarco dei Nuclei militari di protezione (NMP)].
52
Between UNSC Res 2008, la 1816 (2 June 2008) and UNSC Res 2020 (22 November
2011) 15 resolutions were focusing on piracy, in particular, affecting the Somalian
coast and the Horn of Africa.
53
‘Allied Maritime Command—Operation OCEAN SHIELD’ accessed 12 June 2021.
54
‘Italy Takes over Command of Counter-Piracy Mission Atalanta’ Naval Today
accessed 12 June 2021.
55
‘EUCAP Nestor, the Republic of Seychelles Coast Guard and EU Naval Force
Warship Conduct Counter-Piracy Exercise at Sea j Eunavfor’10 of 26 Marco Odello
Force (CTF) 151.56 These were international military operations with security
aims, policing the main maritime routes that could be affected by piracy activ-
ities. Other options include:
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• State Affiliated Escort: Escort by a State military asset.
• VDPs: Uniformed military personnel embarked on a vessel with explicit
approval of the Flag State.
• Private Maritime Security: Embarked private security force personnel hired
by the shipping industry.
• Coastal State Embarked Personnel: Embarked armed personnel originating
from the coastal State, based on arrangements between ship operators and
the providing national authorities—not necessarily endorsed by the Flag
State.
The next two sections shall focus on VPDs as they represent the main ele-
ments considered in the Award, and then issues related to private maritime
security options shall be addressed.
A. Italian Legislation and Practice
Italy has started deploying navy vessels to patrol the area in the Horn of Africa
since 2005. Later on, the International Maritime Organisation (IMO) declared
the waters alongside Kerala a High-Risk Area (HRA) for piracy,57 as they were
included in the 75th eastern longitude delimitation zone in the Indian Ocean,
for the area leading to the Gulf of Aden and Somalia. To contrast several
attacks on Italian flag vessels,58 the Italian Ministry of Defence started the
deployment of VPDs on private and merchant vessels shipping through the
HRA in 2011 (until 2015).59 This practice was based on the Italian law adopted
eucap-nestor-the-republic-of-seychelles-coast-guard-and-eu-naval-force-warship-con
duct-counter-piracy-exercise-at-sea/> accessed 15 July 2021.
56
‘CTF 151: Counter-Piracy. Combined Maritime Forces’, 17 September 2010 accessed 2 July 2021. For an
overview of Italian practice, see F Caffio and N Ronzitti, ‘La Pirateria: Che Fare per
Sconfiggerla?’ Istituto Affari Internazionali, Approfondimenti, no 44 (April 2012) 1.
57
According to IMO, the HRA is an area as defined in the Best Management Practices
for Protection against Somalia Based Piracy (MSC1/Circ.1339, 14 September 2011)
unless otherwise defined by the flag State.
58
Between 2009 and 2013, there were 35 attempted and 5 successful pirate attacks
against Italian commercial vessels transiting the waters off the Horn of Africa, includ-
ing the hijacking of the Italian flagged bulk carrier Montecristo in October 2011 (in
which the crew was freed by the British Navy) and the oil tanker Savina Caylin
(released in February 2011 after the payment of no less than USD 11.5 million).
59
E Cusumano and S Ruzza, ‘The Political Cost-Effectiveness of Private Vessel
Protection: The Italian Case’ (2018) 53(3) The International Spectator 132–48.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 11 of 26
in 2011 (2011 law)60 based on a decree adopted by the Government in July of
the same year on antipiracy measures61 and on two UN Security Council reso-
lutions 1970 (2011)62 and 1973 (2011).63
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The 2011 law at Article 5 foresees two possibilities: either the deployment of
military personnel or private security contractors.64 However, preference and
priority were given to military personnel. Only in case of rejection by the Italian
Navy to a specific request, the shipping company could hire private security
personnel as contractors. This choice was based on the approach of Italian
legislators65 against the multiplication of private security organisations, and
limitations on the use of weapons under Italian law, and on the directives
provided by IMO, which in its guidelines privileged State-led and controlled
missions in antipiracy activities.66 For many years (between 1993 and 2015), the
IMO’s Maritime Safety Committee suggested that ‘flag States should strongly
discourage the carrying and use of firearms by seafarers for personal protection
or for the protection of a ship’.67 For these reasons, the Italian Navy was
involved directly either with military ships patrols and missions, or with the
deployment of VPDs in securing international maritime commercial activities.
However, the 2011 Italian law was not sufficiently clear on the status of mili-
tary personnel deployed on board of private vessels, particularly when acting in
maritime areas that could fall under foreign jurisdictions. Under Article 5(3)
2011 law, the expenses for the deployment of military personnel would be paid
by private shipowners,68 but the shipmaster had no control over the military
personnel on board, as Article 5(2) clarifies that military teams are subject to
the regulations and rules of engagement adopted by the Ministry of Defence. In
this case, VPDs would act as judicial police officers and agents replacing the
60
Legge 2 Agosto 2011, no 130, Gazzetta Ufficiale–Serie Generale no181 (5 August
2011).
61
Decreto-Legge 12 Luglio 2011, no 107, Gazzetta Ufficiale no 160 (12 July 2011).
62
UNSC, Res 1970 (26 February 2011).
63
UNSC, Res 1972 (17 March 2011).
64
G Bevilacqua, ‘Armed On-Board Protection of Italian Ships: From an Apparent
Hybrid Model to a Regulated Rise of Private Contractors’ (2018) 4 Erasmus Law
Review 247–57.
65
E Cusumano and S Ruzza, ‘Contractors as a Second Best Option: The Italian Hybrid
Approach to Maritime Security’ (2015) 46(2) Ocean Development & International
Law 111–22.
66
IMO, MSC1/Circ.1332 (16 June 2009) and MSC1/Circ1337 (4 August 2010). For the
latest revised version of IMO, Best Management Practices for Protection against
Somalia Based Piracy (BMP4) see MSC1/Circ1339 (14 September 2011).
67
IMO, MSC/Circ 623 (18 June 1993) Annex, para 40; MSC1/Circ1333, Annex, para 5
(26 June 2009) which was then revoked by MSC1-Circ 1333-Rev.1 (12 June 2015)
Annex, paras 3–8.
68
Italian Ministry of Defence, Protocollo d’intesa tra Ministrero della Difesa e
Confedereazione Italiana Armatori (Confitarma) (11 October 2011) accessed 11 April 2021.12 of 26 Marco Odello
functions of the shipmaster, according to the Italian Navigation Code,69 in re-
lation to anti-piracy activities.70
It is worth noting that this distinction would not apply in case of private
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contractors, as they would be considered as private security teams, directly hired
by the shipowner and possibly under the control of the shipmaster, depending
on the contract between the shipowner and the private security company. This
would create two different legal regulations and status of security personnel, at
least under Italian law, as discussed later in this article.
Furthermore, the military teams on board would act only to protect the
vessels from pirate attacks, as the law excludes other anti-piracy activities
that are given to Navy or official State ships only.71 The law defined these tasks
by reference to the type of activities authorising the use of force in international
military operations in time of peace. According to the Italian Military Criminal
Code of Peace,72 military personnel involved in international peace operations
are not punishable not only in case of ‘self-defence’ but also for the use of force
and other acts that are committed, following the rules of engagement and le-
gitimate orders, to fulfil the ‘needs of the military operation’.73 In the case of
VPDs, the rules would apply to cover activities related to the protection of
vessels from piracy attacks.74
These national conditions would certainly influence the position of the Italian
government in the dispute with the Indian authorities because they concerned
the status and accountability of individuals involved in the case under
consideration.
At this point, the discussion shall focus on the arguments of the parties to the
dispute and the findings of the Tribunal in the light of international law related
to act of State immunities.
5. Immunities, VPDs and Act of State in the Enrica Lexie Case
The aim of this article is to stress that the question of immunities is central to
the dispute. However, as the case shows, and as underlined from India’s argu-
ment, ‘the topic of immunity of State officials from foreign criminal jurisdiction
remains “extremely controversial”’.75
69
Italian Navigation Code, art 1235, Royal Decree, no 327 (30 March 1942); P Manca,
The Italian Code of Navigation (Translation and Commentary) (Giuffré 1958).
70
Italian Navigation Code, ibid arts 1135 and 1136.
71
UNCLOS, arts 106 and 110.
72
Regio Decreto, no 303 (20 February 1941), Gazzetta Ufficiale no 107 (6 May 1941)
Suppl Ordinario.
73
Legge no 197 (29 December 2009), Gazzetta Ufficiale no 303 (31 December 2009) art
4(1)-sexies.
74
Legge (n 60) art 5.
75
Award, para 756.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 13 of 26
The case under consideration also shows the importance on how national
legislation and interpretation of international law in accordance to national
priorities may influence the international dispute resolution mechanisms and
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the positions of the parties. The Italian arguments were based on national rules
on VPDs, described above, concerning the status and functions of Italian mili-
tary personnel on board of the Enrica Lexie, following international guidelines
against piracy. The Indian position was justified according to the victims’ claims,
and the application of national criminal law related to the killing of two Indian
citizens. This is an example of when international law becomes relevant as a
legal system, and when focusing mainly on considerations based on national
legal systems and national interests leads to unresolved disputes. In these cases,
clearer international obligations and rights and better cooperation among
States, as in anti-piracy activities, could help in preventing these types of
controversies.
In this part, the discussion shall consider the role of the Italian marines and
the problems related to their status. This analysis shall reflect on the fundamen-
tal issues of immunities from jurisdiction based on the concept of act of State, or
jure imperii, activities that may intervene in the context of this case. The focus
shall be on the claims and considerations by the parties and the findings and by
the Tribunal in the light of more general evaluation of International Law rules
and State practice to identify the possible problems and solutions to this dispute.
A. The Tribunal’s Jurisdiction on Immunities
Italy’s claim referred to immunities in relation to several UNCLOS provisions
that bring into the case other rules of international law. In particular, Article
2(3) ‘which provides that sovereignty over the territorial sea is exercised subject
to the Convention as well as “other rules of international law”’; Article 56(2)
‘which obliges coastal States to give “due regard to the rights and duties of other
States”’ and Article 58(2) ‘which refers to “other pertinent rules of international
law” applying to the exclusive economic zone’.76 Italy also put forward a ‘sub-
sidiary argument’, arguing ‘that the Arbitral Tribunal may also rely on Article
297, paragraph 1, of the Convention which, according to Italy, “extends the
jurisdiction of a court or tribunal established in accordance with Part XV of
UNCLOS beyond Article 288(1)” and effects a renvoi to other sources of law’.77
India rejected all these claims based on different arguments. In particular, on
the fact
that the Arbitral Tribunal in this case similarly does not have jurisdiction
over Italy’s claim on the basis of Article 297, paragraph 1, subparagraph
(a), of the Convention because the law of immunities in general is a
76
ibid para 762.
77
ibid para 779.14 of 26 Marco Odello
different body of law, and, India submits that Italy’s claim does not con-
cern the application or interpretation of the Convention.78
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The Tribunal partly rejected the claims by Italy.79 However, it recognised that
‘the question of the immunity of the Marines is one aspect out of several, albeit
an important one, that requires examination in resolving the Parties’ dispute’.80
The Tribunal, referred to the Counsel for Italy, Sir Michael Woods’ wording
that
in the circumstances of this case, it would make no sense whatsoever for
the Tribunal to determine that a state has jurisdiction under the
Convention without, at the same time, deciding whether the exercise of
such jurisdiction would be lawful under international law. This necessar-
ily requires a decision on immunity.81
Therefore, the Tribunal
considers that, while the Convention may not provide a basis for enter-
taining an independent immunity claim under general international law,
the Arbitral Tribunal’s competence extends to the determination of the
issue of immunity of the Marines that necessarily arises as an incidental
question in the application of the Convention.82
The question of immunities, even if it is qualified as an ‘incidental’ matter by
the Tribunal,83 in reality, it is crucial to the solution of this dispute between the
two parties and deserves further analysis. This issue of ‘incidental’ and ‘ancil-
lary’ matters was discussed in other international cases84 and would need, at
some point, some clarification in the context of international procedural mat-
ters, because it can determine the relevance of these issues in the decision of
international jurisdictions.85
78
ibid para 789.
79
ibid paras 795–802.
80
ibid para 806.
81
ibid para 807.
82
ibid para 809, see also para 811.
83
ibid para 808.
84
PCA/CPA, ‘Chagos Marine Protected Area Arbitration’, Mauritius v United
Kingdom, Final Award, ICGJ 486 (PCA 2015), 18 March 2015, paras 211 and 229;
‘Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch
Strait’, Ukraine v Russia, Case No 2017-06, Award Concerning the Preliminary
Objections of The Russian Federation, paras 194–95.
85
See VJ Schatz, ‘Incidental Jurisdiction in the Award in The “Enrica Lexie” Incident
(Italy v India): Part I’ (Völkerrechtsblog, 23 July 2020). doi: 10.17176/20200723-
235445-0.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 15 of 26
B. The Marines’ Status and Immunities
The solution of immunity from jurisdiction is the crux of this dispute, in spite of
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the fact that India tried to restrict its legal arguments only to UNCLOS rules on
jurisdiction, arguing that the case was filed by the parties for the application of
UNCLOS by the Arbitral Tribunal. This objection was further discussed in the
dissenting opinions by arbitrators Pemmaraju Sreenivasa Rao86 and Patrick
Robinson,87 arguing that the issue of immunities did not concern the interpret-
ation or application of UNCLOS, and therefore exceeded the Tribunals’ juris-
diction defined in Article 288 UNCLOS.
However, it is important to remember that the dispute arose because India
arrested and started criminal proceedings against the two Italian marines who
were accused of killing two Indian fishermen. Even if the rules of the law of the
sea and customary international law88 could allow the exercise of India’s juris-
diction over the maritime incident, the immunities rules in international law
would bar the exercise of that jurisdiction.89 Actually, it could be argued that
the fact that the incident occurred on the sea, instead of land, it may be irrele-
vant when considering the question involving immunity in this case. If jurisdic-
tional immunities bar the exercise of foreign jurisdictions, the place where they
were committed becomes less relevant.
The real issue, in this case, is certainly the relevance of the immunities for
members of foreign armed forces from foreign jurisdiction and courts.90 In this
context, it is a well-established rule of international law that foreign officers on
duty would enjoy immunity from local jurisdiction where the acts occurred or
had their effects.91 There is a vast literature on this matter,92 and it is not
86
PCA/CPA, The ‘Enrica Lexie’ Incident (Italy v India), Concurring and Dissenting
Opinion Dr Sreenivasa Rao Pemmaraju (Dr PS Rao) 21 May 2020, paras 57–59
accessed 3 April 2021.
87
PCA/CPA, The ‘Enrica Lexie’ Incident (Italy v India) Dissenting Opinion Judge
Patrick Robinson, 21 May 2020, paras 42–54 accessed 13 April 2021.
88
PCIJ, SS Lotus (France v Turkey) 1927 PCIJ (ser A) No 10 (September 7) paras 45–
48.
89
P Gragl, ‘Jurisdictional Immunities of the State in International Law’ in S Allen and
others (eds), The Oxford Handbook of Jurisdiction in International Law (OUP 2019)
ch 11.
90
See GP Barton, ‘Foreign Armed Forces: Immunity from Criminal Jurisdiction’ British
Yearbook of International Law 1950 (OUP 1951) 186–234.
91
See ILC, ‘Draft Articles on Immunity of State Officials from Foreign Criminal
Jurisdiction’, Provisionally Adopted by the International Law Commission, in
‘Report of the International Law Commission on the Work of its Sixty-Ninth
Session’ (from 1 May to 2 June and 3 July to 4 August 2017), UN Doc A/72/10, Ch
VII, 163–91, 175.
92
See H Fox and Ph Webb, The Law of State Immunity (3rd edn, OUP 2015); R Van
Alebeek, The Immunity of States and Their Officials in International Criminal Law
and International Human Rights Law (OUP 2008); EK Bankas, The State Immunity
Controversy in International Law: Private Suits Against Sovereign States in Domestic
Courts (Springer 2005).16 of 26 Marco Odello
possible to provide an extensive analysis of the principles that relate to acts of
State immunity (acta jure imperii), which are linked to the status and activities
of various State officials. In the present context, the focus would be on immun-
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ities ratione materiae, rather than on ratione personae, because the latter apply
to certain categories of State officials, like Heads of State and Government and
Ministers of Foreign Affairs, while the former would concern State officials for
activities performed in an official capacity and on behalf of their State.93
It is relevant now to consider the status of the two marines in this specific
case, to show that the legal problems emerged due to the unsettled matter
concerning immunities under international law, and in this particular case, to
the difficulties related to the legal status of the marines on board of the Enrica
Lexie.
The main question is whether the two marines would enjoy immunity from
India’s jurisdiction. This matter raises other related questions. Where the two
marines on official duty? Which is the legal status of the Italian marines, as
members of the armed forces, when deployed on a private merchant vessel?
Would this situation affect their status in relation to act of State immunity?
Therefore, were they acting on behalf of the Italian authorities or as private
security agents? These questions would help in defining the role of the Marines
and therefore, depending on the answer, they would determine the possible
application of functional immunities or not.
As rightly pointed out by India, ‘nothing in UNCLOS concerns or refers to
the immunities of military personnel on board commercial ships’.94 Immunities
are referred in UNCLOS Articles 95 and 96, with reference to State ships
defined under Article 29 used only on government non-commercial service.
The arguments by the two States tried to distinguish between State functions
and consequences of the acts. The Italian arguments emphasised the anti-piracy
function of the marines, therefore a public function. The Indian position focused
on the consequences and damages of marines’ action within the EEZ of India
and the killing of the two Indian fishermen.
India invoked, without success, the theory of ‘territorial tort exception’95 that
would allow to ignore immunity ratione materiae because torts were committed
on Indian territory.96 The argument was dismissed by the Tribunal because the
incident occurred in the EEZ of India, that is not equivalent to the ‘territory’ in
terms of sovereign rights.97 It could be noted that the exception was not
93
ILC (n 91), art 6(1).
94
Award, para 741.
95
See United Nations Convention on Jurisdictional Immunities of States and Their
Property (opened for signature 17 January 2005, not yet in force), art 12; European
Convention on State Immunity, 74 ETS (Opened for Signature 16 May 1972, Entered
into Force 11 June 1976), art 11.
96
Award, paras 830–37.
97
ibid paras 868–74.The Enrica Lexie Incident and the Status of Anti-Piracy Security Personnel 17 of 26
recognised in other relevant international cases,98 even when the facts included
serious international crimes, such as crimes against humanity and war crimes.99
The Italian argument in relation to the marines was that, based on the Italian
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law on VPDs, their functions, as Navy’s officers, included ‘safeguarding and
protection of national interests and maritime sea-lines beyond the outer limit
of the territorial sea, including as regards the fight against piracy’.100 Therefore,
deducting that ‘VPDs were serving members of the Italian Navy or other Italian
Armed Forces who operated in conformity with the directives and the rules of
engagement issued by the Italian Ministry of Defence’.101 The claim was ‘that
India has acted inconsistently with UNCLOS by exercising jurisdiction over the
Marines even though the Marines, as Italian State officials exercising official
functions, enjoy immunity’.
The answer to the question requires a more complex analysis. In fact, the
Italian marines were deployed on a private merchant vessel. If they were
deployed on a military or State official ship, either under Italian flag or as
part of a multi-national security operation or under an international organisa-
tions’ mandate, they would have certainly enjoyed immunity.102
Therefore, the next question is whether the status of military personnel might
change by the fact that they were deployed on a private vessel. Here the answer
has to take into consideration the functions and role of the military personnel
on board, to ascertain whether their actions were part of their official capacity,
and therefore covered by the functional immunities. The Tribunal, based on the
analysis of the Italian submissions, decided in favour of the official functions,
notwithstanding the fact that the marines were on a merchant private vessel.103
The justifications were essentially three. The marines were still full members
of the Italian Navy, and subject to the military chain of command. They were
officially engaged in anti-piracy activities based on Italian law, as mentioned
before,104 and in line with UN resolutions and IMO regulations. Italy also
referred to best practices, which are not official governmental or international
law, but private sector shipping recommendations.105
98
See ICJ, ‘Jurisdictional Immunities of the State’ (Germany v Italy), Judgment (3
February 2012), paras 79, 83–90.
99
PC Bornkamm, ‘State Immunity Against Claims Arising from War Crimes: The
Judgment of the International Court of Justice in Jurisdictional Immunities of the
State’ (2012) 13 German Law Journal 773.
100
Award, para 83, citing Italy, Decreto-Legge (n 61), art 5(6)-bis.
101
ibid art 5(2).
102
UNCLOS, arts 95 and 96; S Aurel, The Status of Armed Forces in Public International
Law: Jurisdiction and Immunity (21 January 2015) accessed 22 April 2021; M Brandon, ‘Sovereign
Immunity of Government-Owned Corporations and Ships’ (1954) 39(3) Cornell Law
Review 425–62; F Francioni, ‘Peacetime Use of Force, Military Activities, and The
New Law of the Sea’ (1985) 18(2) Cornell International Law Journal 203–26.
103
Award, para 862.
104
See s 4.A.
105
IMO, Best Management Practices for Protection against Somalia Based Piracy
(BMP4), Version 4 (Witherby Publishing Group 2011).18 of 26 Marco Odello
Existing IMO regulations on this matter did not clarify the status of security
personnel. They referred to either private security personnel or State officials
that were a ‘matter for flag State to determine in consultation with shipowners,
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operators and companies’ and, in the case of military teams, that ‘rules of en-
gagement defined by their Government, or in coalition with other
Governments, boarding conditions should be defined by the States involved,
including the flag State. The shipowner, operator and company should always
consult the flag State prior to embarking such teams’.106
Finally, Italy argued that ‘the “distinction between acts jure imperii and acts
jure gestionis is irrelevant to the immunity ratione materiae of State officials
from foreign criminal jurisdiction” as long as the acts at issue were performed
in an official capacity’.107 This position is in line with the prevailing opinion in
international law.108
The fact that the Tribunal recognised the immunity of Italian military per-
sonnel deployed as VPD on a merchant ship raises several questions in relation
to similar situations that may occur when private contractors and security com-
panies may be deployed to protect private vessels from pirate attacks.
6. Legal Gaps and Vessel’s Protection Personnel
It is possible to foresee that similar incidents to the Enrica Lexie may occur
involving different States. The case under discussion raises several problems
that may deserve some further considerations and shows legal gaps in the regu-
lation of security personnel on board of private vessels that need a better regu-
lation at international level to avoid future jurisdictional disputes.
Three main issues emerge from the previous discussion:
1. The inadequate regulation under the law of the sea for anti-piracy activities.
2. The lack of clarity in regulations and decisions by international organisations.
3. The unclear position and legal status of security personnel on private vessels,
particularly in the case of privately contracted armed security personnel
(PCASP), and problems of responsibility.
It is evident from the nature of the crime that most of piracy and anti-piracy
activities occur on the sea.109 There are sufficient rules in relation to anti-piracy
policing activities carried out by official governmental vessels.110
106
IMO, Guidance to Shipowners and Ship Operators, Shipmasters and Crews on
Preventing and Suppressing Acts of Piracy and Armed Robbery against Ships,
MSC1/Circ1334, 23 June 2009, paras 62 and 63.
107
Award, para 820.
108
Special Rapporteur on Immunities of State Officials from Foreign Jurisdiction, 2nd
Preliminary Report (29 May 2008) UN Doc A/CN 4/631, 55.
109
UNCLOS, art 101.
110
See cases, such as ITLOS, MIV "SAIGA" (No 2) (Saint Vincent and the Grenadines v
Guinea), Judgment, ITLOS Reports 1999, 10; ‘Claim of the British Ship “I’m Alone” vYou can also read
