This post examines the question whether the two Italian marines are entitled to immunity from prosecution.
The principle of state immunity probably arises as a consequence of equality of states according to the rule “par in parem non habet imperium” – no state can claim jurisdiction over another. The jurisdictional immunity of foreign states has often also been variously – and often simultaneously – deduced not only from the principles of equality but also from the principles of independence and of dignity of states.
The principles of international law regarding jurisdictional immunities of states have derived mainly from the judicial practice of individual nation. This first articulation of the principle of state immunity was recognized by the United States Supreme Court in its famous 1812 judgment of The Schooner Exchange v. McFaddon. Chief Justice Marshall clearly enunciated the principle: “[The] full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him”.
A theory that long prevailed, particularly in the UK that a foreign state could not be impleaded (i.e. sued) before a municipal tribunal under any circumstances. The doctrine of sovereign immunity was originally devised to uphold mutual respect between monarchs by according immunity to the exercise of their state functions within foreign jurisdictions. However, the 20th century saw the rise of industrial enterprises funded and controlled by the state: to accord immunity to such enterprises gave them an unfair commercial advantage and the absolute view of state immunity was gradually abandoned by the international community.
A number of states started adopting the restrictive approach to immunity, allowing the exercise of jurisdiction over a state’s non-sovereign acts. The Austrian Supreme Court in 1950 concluded that in the light of increased activity of states in the commercial field the classic doctrine of absolute immunity had lost its meaning and was no longer a rule of international law. A significant change in American policy regarding state immunity occurred in 1952, when the then acting legal adviser to the U.S. State Department, Jack B Tate wrote a letter to the acting Attorney General of the US wherein he indicated acceptance of the restrictive theory of immunity by the US government. He pointed out that the adoption of the restrictive theory by more and more countries justified the restrictions involved. He noted that henceforth from the view of the Department of State, “private activities of foreign sovereigns” should be denied immunity in American courts. In Victory Transport Inc v Comisaria General de Abastecimientos y Transportes (1964) the State Department refused to issue a certificate of immunity because the government of Francisco Franco of Spain was the appellant/defendant. Lacking a determination from the State Department of sovereign immunity, the court developed a set of operational tests by which acta jure imperii might be determined:
“Since the State Department’s failure or refusal to suggest immunity is significant, we are disposed to deny a claim of sovereign immunity that has not been “recognized and allowed” by the State Department unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories:
1. Internal administrative acts such as expulsion of an alien
2. Legislative acts, such as nationalization
3. Acts concerning the armed forces
4. Acts concerning diplomatic activity
5. Public loans”.
The ‘acts concerning armed forces’ is relevant in the context of the case involving Italian marines.
An alternative approach treats functional immunity as a distinct principle which is concerned with attribution of acts undertaken on behalf of a State. As the International Criminal Tribunal for the former Yugoslavia explained in the Blaškić case,
State officials acting in their official capacity ... are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called ‘functional immunity’. [Prosecutor v. Tihomir Blaskić (Judgment on the Request of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997), (1997) 110 ILR 607 (ICTY Appeals Chamber), at para. 38 (emphasis added)].
The norms of customary international law concerning the functional (or ratione materiae) immunity of State officials from foreign (criminal, civil and administrative) jurisdiction remain controversial and contemporary international law scholars still disagree about their scope of application and content.
The United Nations’ International Law Commission (ILC) undertook a study on a key aspect of this topic, namely the functional (as well as personal) immunity of State officials from foreign criminal jurisdiction. However, according to Mazzeschi, these works did not clarify the most controversial legal issues and further have not yet produced convincing results. In fact, both the ILC Special Rapporteurs have dogmatically accepted, without any form of critical review, the old ‘Kelsenian theory’, according to which all State officials have the right, in principle, to functional immunity from foreign jurisdiction regarding their ‘official’ acts, i.e., when acting in their official capacity.
According to the traditional long held view, functional immunity is based on the conceptual premise that acts performed by an agent in his/her official capacity and in the exercise of his/her duties cannot be attributed to the individual agent, but only and always to the State for which the official is acting. Therefore, functional immunity should not be procedural in nature, but rather should represent a substantive exemption from the law. This would mean that functional immunity is due to all foreign State officials and, at least in principle, would cover all their ‘official’ acts.
An early instance of a claim of functional immunity came in the case of a criminal charge against one MacLeod in 1841. Mr. MacLeod, a member of the British armed forces, allegedly attacked a ship moored in New York State while under orders from his government to do so. Much later, he was arrested while visiting the United States on unrelated business and put on trial in New York for a murder resulting from the destruction of the ship. The British government objected claiming that the attack was an official act and therefore any responsibility born by Mr. MacLeod should be transferred to the United Kingdom resulting in his release from custody and trial. The British and American governments essentially agreed,
[t]hat an individual, forming part of a public force, and acting under the authority of his government, is not to be held answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute.
Nevertheless, Mr. MacLeod was tried in New York State on the allegations of murder. While the executive branch of the United States Federal Government seems to have conceded that MacLeod should have benefited from functional immunity, this was not a universal sentiment in the federal government at the time.
It is in the light of the above discourse one needs to assess whether the Italian marines were entitled to immunity from prosecution.
In the Indian Supreme Court, reliance was placed on behalf of the Union of India on the United Nations Privileges and Immunities Act, 1947, and the Diplomatic Relations (Vienna Convention) Act, 1972, which gave certain diplomats, missions and their members diplomatic immunity even from criminal jurisdiction. The author is of the opinion that reference to immunity of diplomats and foreign missions has no relevance to the facts of the present case. It needs to be pointed out that the vessel was not headed towards India or Indian territorial waters but was en route to Djibouti. So also the marines were not accredited to any mission in India.
The question for consideration is whether the Italian marines were members of the armed forces of the Republic of Italy? The answer to this is in the affirmative. Secondly, were they on aboard the Italian flagged tanker in their private capacity or pursuant to an order of the Republic of Italy? Though they were assigned to a commercial vessel by the Italian government, they were discharging their functions as members of the armed forces. They were not discharging the functions as private security guards hired by the owner of the vessel to protect the ship and its personnel and cargo against pirates. The argument that merely the presence of armed forces’ personnel on a private vessel does not make it a public ship or warship, again is of no relevance since the question is not inviolability of the ship but inviolability of the military personnel aboard the ship. Prof. Natalino Ronzitti emphasized that the Italian guards were members of the Italian military (he noted also that the legislative framework for private Italian guards had not yet been put in place). In particular, he pointed out that both national Italian law and the United Nations resolutions supported the use of armed guards to repel pirates. He argued that the actions of the Italian marines should be attributed to Italy and not the marines individually. This would exclude their criminal trial in India. Thus, the marines appear to have a strong case for raising the plea of immunity. Interestingly the Indian Supreme Court did not adjudicate on the question of immunity while dealing with the Special Leave Petition. At para 98 of the judgment, the Court observed:
"The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation."
Strangely it was also argued that as per the Policy of the Government of India, no foreign arms or foreign private armed guards or foreign armed forces personnel, accompanying merchant vessels, were allowed diplomatic clearance. Nor is it the policy of the Government of India to enter into any Status of Forces Agreement (SOFA) by which foreign armed forces are given immunity from criminal prosecution. Firstly, the Italian vessel was transiting through the Indian Contiguous Zone/EEZ. It was either ‘intercepted’ or informed by the Indian Coast Guard to enter India’s territorial waters and proceed to the port of Kochi. Secondly, SOFA applies to foreign troops posted in the territory of another state pursuant to an agreement. In fact, India could not have even argued about India not having a Visiting Forces Agreement (VFA) which is similar to SOFA and which covers forces visiting the host state temporarily for the Italian vessel’s intended destination was not India but Djibouti. Thirdly, the vessel was sailing in an area which was prone to piracy and had witnessed attacks by pirates in the past. [Between 2011 and 2012, four Italian ships were attacked and boarded by pirates: the oil tanker "Savina Caylyn", with 22 crew members, boarded on February 8 by Somali pirates off the coasts of Yemen and released on December 21, 2011; the cargo ship "Rosalia D'Amato", with 22 crew members, boarded April 20 in full Arabian Sea and released November 25, 2011; the oil tanker "Enrico Ievoli", with 18 crew members, boarded in the waters off the Somali coast Dec. 27 and released April 23, 2012 following an operation conducted by the Navy and the tug platform "Asso 21" picked up in the night between 23 and 24 December 2012 off the coast of Nigeria].
While India’s jurisdiction to try the two Italian marines may be well founded, especially in the light of the provisions of Article 86 of the UNCLOS, the marines may well be entitled to immunity from prosecution in the Indian courts.
On 24th August 2015, by a majority opinion of 15:6, the International Tribunal for the Law of Sea (ITLOS) asked both India and Italy to suspend all court proceedings and refrain from initiating new ones which might aggravate or extend the dispute submitted to the ITLOS for arbitration by Italy or might jeopardize or prejudice the carrying out of any decision which the arbitral tribunal may render.
ITLOS has further asked Italy and India to submit to it, the initial report on compliance of aforesaid measures not later than 24 September 2015.
Pursuant to the order passed by the ITLOS, the Supreme Court of India stayed all the proceedings against the Italian marines in relation to the Enrica Lexie incident.
The lawyer representing the Union of India told the Court that the Government of India was bound by the order passed by ITLOS and court ought also to honour the same. He further informed the court that a five-member tribunal (ITLOS Annex VII arbitral tribunal) would be set up to decide the issue of jurisdiction. The lawyer representing the marines requested the Court that the matter be “adjourned sine die” till another tribunal decides jurisdictional issue and the same be revived by either of the parties. However the bench did not agree with the suggestion and fixed the matter for further hearing in the third week of January, 2016.
 Oppenheim’s International Law 9th Edn pp 341-342
 [(1812) 7 Cranch 116]
 US Court of Appeals 2d Cir., 1964, 336
 Ricardo Pisillo Mazzeschi – The functional immunity of State officials from foreign jurisdiction: A critique of the traditional theories http://www.qil-qdi.org/the-functional-immunity-of-state-officials-from-foreign-jurisdiction-a-critique-of-the-traditional-theories/#_ftn1
 Reports of the Special Rapporteurs: RA Kolodkin, ‘Preliminary report on immunity of State officials from foreign criminal jurisdiction’ (29 May 2008) UN Doc A/CN.4/601; RA Kolodkin, ‘Second report on immunity of State officials from foreign criminal jurisdiction’ (10 June 2010) UN Doc A/CN.4/631; RA Kolodkin, ‘Third report on immunity of State officials from foreign criminal jurisdiction’ (24 May 2011) UN Doc A/CN.4/646; C Escobar Hernández, ‘Preliminary report on the immunity of State officials from foreign criminal jurisdiction’ (31 May 2012) UN Doc A/CN.4/654; C Escobar Hernández, ‘Second report on the immunity of State officials from foreign criminal jurisdiction’ (4 April 2013) UN Doc A/CN.4/661; C Escobar Hernández, ‘Third report on the immunity of State officials from foreign criminal jurisdiction’ (2 June 2014) UN Doc A/CN.4/673.
 Macleod was acquitted for want of evidence.