#Debriefed: Behind Girone’s release lies India’s doublespeak on humanitarian grounds (Part II)

On May 26 this year, the Supreme Court of India allowed Italian marine Sergeant Major Salvatore Girone to return to Italy. The move brought an end to the legal saga that had begun with the arrest of the two marines for killing two Indian fishermen on February 15, 2012..Part I looked at the manner in which this matter reached an international forum. In Part II, we explain how India adopted two different stands – one before the UN’s Arbitral Tribunal, and another before the Supreme Court’s Vacation Bench on May 26, which finally enabled Girone to walk free. We also highlight the Supreme Court’s role in forcing Girone to withdraw his application for relaxation of bail conditions to enable him to visit Italy..How did Italy succeed in persuading the Arbitral Tribunal to consider relaxing bail conditions for Girone?.On December 11, 2015, Italy submitted to the Arbitral Tribunal a request for the prescription of provisional measures under Article 290, Paragraph 1 of the UNCLOS. On March 30 and 31, 2016, a hearing on provisional measures was held at the Peace Palace in The Hague..In this fresh request, Italy wanted India to relax the bail conditions on Girone, and to enable him to return to Italy, pending the final determination of the Tribunal. India requested the Arbitral Tribunal to reject Italy’s submission on new provisional measures..But when the Tribunal discussed the specific grounds cited by Italy to justify relaxation of bail, India’s position was vague. India pointed to the need for balanced provisional measures, capable of equally protecting the interests and rights of both the parties, whereas Italy stressed on the consequences that the “lengthy restrictions on liberty entail for Girone and his family”..How did the Supreme Court’s denial of permission to Girone to travel to Italy come under scrutiny before the Tribunal?.When the Arbitral Tribunal posed a specific question on whether the Indian Government and the Supreme Court had opposed Italy’s request for relaxation of bail conditions, India denied having opposed it. Italy claimed that it withdrew its petition seeking relaxation in the face of the Indian Government’s opposition to it, and the then CJI’s categorical statement in the Supreme Court that he would reject it..The CJI, referred to in the AT’s proceedings, is Justice HL Dattu. The Supreme Court hearing referred to was on December 16, 2014. The IAs 7-8 & 9-10 of 2014 in the case were withdrawn by senior counsel, Soli Sorabjee. The order for that date, available on the Supreme Court’s website, does not state any reasons for withdrawal..But this ToI news report shows that Italy’s claims before the Tribunal were correct. In contrast, India’s claims that Italy had withdrawn its application for relaxing bail conditions for Girone, and therefore, it could not speculate on how the Supreme Court would have dealt with it had it persisted, appear to be suspect. No wonder the Tribunal considered this as a possible ground to provide relief to Girone..Italy termed India’s answer to this question as inaccurate. India maintained that Girone’s application for relaxation of bail conditions was withdrawn before the Supreme Court could render a decision on it..More importantly, had the Supreme Court been receptive to Girone’s application earlier, the ground for Italy’s decision to approach the AT would not have arisen..How did India oppose humanitarian considerations to relax bail conditions?.India also argued that the Arbitral Tribunal was not vested with jurisdiction to review the ITLOS order in the absence of any change in circumstances. The ITLOS order of August 24, 2015 requested maintenance of status quo, which the Arbitral Tribunal was being asked to review by Italy in March 2016..Italy, however, argued that the ITLOS order did not touch the situation of the two marines because it believed the Arbitral Tribunal could adjudicate on it, as it pertained to the merits of the case. Italy argued that the delayed proceedings in India was a change in the circumstance..India complained that it was Italy and the marines who, by means of repeated applications to the Supreme Court of India, blocked the Special Court to rule on the matter..India emphasised that Girone was “not in jail”, but subject only to “(mild) measures of restraint”. India submitted that Gerone’s bail conditions pale “in comparison to the prejudice that the victims and their families have suffered.”.India argued that relaxation of bail conditions in favour of Girone would prejudice its ability to exercise jurisdiction over him because “there is a risk that he would not return to India in the event that India is found to have jurisdiction over the incident”..India expressed its lack of trust in Italy’s undertaking to return Girone to India, going by past experience, when “intense diplomatic measures” were pressed into service, to secure the return of the marines from Italy..After hearing both the parties, however, the AT held on April 29 this year that Girone should be allowed to return to Italy subject to the conditions prescribed by the Supreme Court. The Tribunal took into account Girone’s social isolation from Italy as a relevant factor in so deciding that there should be no undue restraint on him as a result of extended arbitration proceedings..The hearing on May 26 in the Supreme Court was in pursuance of this interim order issued by the Tribunal favouring relaxation of bail conditions imposed on Girone, to enable him to return to Italy..India’s agreement to relaxing bail conditions in favour of Girone on “humanitarian considerations” thus flies in the face of its spirited opposition to it during the proceedings before the Tribunal..India could have told the Supreme Court that it was bound by the Tribunal’s April 29 decision. That would have been the correct reflection of its position..What do the critics say about Italy’s claims?.Italy’s challenge to India’s jurisdiction to try the marines is questioned on the ground that Italy has, for three years, participated in the process, attended hearings, and accepted the decisions that the Supreme Court has handed down. It appears to have no choice, however, to not comply, given the absence of alternatives to it. Italy’s decision to approach the Tribunal is a result of its frustration with the legal delays in India; although some have accused Italy of forum shopping..According to India, shooting unarmed, innocent fishermen and killing them is not an “incident of navigation”, and therefore, UNCLOS does not apply. As the incident occurred within India’s contiguous zone, India has jurisdiction to try the case..KP Fabian, a former Indian ambassador to Italy, has claimed that the MEA’s Legal and Treaties Division prepared a note to justify India’s jurisdiction to try the case, but the Government has not made use of it..Has India’s handling of the case been ineffective?.Fabian has argued that the Supreme Court’s acceptance of Italy’s argument to stop the proceedings in the Kerala High Court was flawed. According to him, since India had signed the UNCLOS, Kerala, as a unit within India, could act on behalf of the Union of India..He wonders whether the L&T note was submitted to the Supreme Court at all. The investigation by the NIA and the trial at the Special Court, New Delhi, resulted in unavoidable delays, say the critics..Could the Indian Supreme Court have refused to let Girone to return to Italy?.If the Supreme Court refused to let Girone to return to Italy, there is every chance that the tribunal will retaliate by ruling against India on the merits of the case, and hold that it has no jurisdiction to try them, says Satyabrata Pal, another expert, on The Wire..The Congress has alleged that the Central Government cut a deal with Italy, and this explains why the Government did not oppose relaxation of bail conditions by the Supreme Court..The Prime Minister’s Office has formally denied allegations of a deal in this case with Italy to falsely implicate the Congress leadership in the AgustaWestland chopper deal..It is difficult to unravel the truth of this allegation at this stage, but what is clear is that Italy has succeeded in halting the judicial process in India by pursuing its remedies at the international forums..What next?.Given that the Tribunal is only deciding on jurisdiction rather than criminality, the case is likely to take several more years to conclude even after the Tribunal delivers its decision on jurisdiction, which is expected in December 2018..If the Tribunal rules in favour of Indian jurisdiction, the trial in the Special Court in New Delhi will resume; if it is in favour of Italy, then the trial will shift to Italy, and the Special Court would be wound up..According to Satyabrata Pal, the Tribunal, to save its own face, would have to craft a creative interpretation of Article 97 to hold that snipers killing fishermen constituted an incident of navigation. It would then conclude that India has no jurisdiction, he says..The Indian member of the tribunal neither dissented nor put in an explanatory declaration to oppose a decision that so gravely weakens India’s case on merits, says Pal.