Italian Marines Case: Rainbow Warrior Redux?

Last year, Italian marines on board a ship were involved in a shooting that resulted in the deaths of two Indian fisherman in international waters off the coast of India.  Two of the Italians were ultimately charged and, recently, the Indian Supreme Court ruled that India had jurisdiction to try the two soldiers despite the incident having taken place in international waters.  That jurisdiction, which Italy had challenged, is relatively uncomplicated with respect to general principles of international law; according to the passive nationality principle, a state has jurisdiction over a matter in which its citizens are harmed by a crime.

What's making headlines this week is that the two Italians who have been charged, permitted by Indian authorities to return to Italy for the recent elections, might not be coming back.  The Indian Supreme Court declared yesterday that the Italian ambassador, Daniele Mancini, is not permitted to leave the country without its permission.  India's Union Home Ministry upped the ante by alerting all airports to not permit the ambassador to leave.  In addition to being a blatant breach of diplomatic principles enshrined by the Vienna Convention on Consular Relations (Article 9 specifies the procedures for a state refusing to accept the protected diplomatic status of a diplomat; in short, the "receiving state" (India) must give the other state an opportunity to recall the diplomat to the home state), the activity is sure to heighten tensions between the two countries.

Just as a final note: the sub-headline of this article was "Rainbow Warrior Redux?" because of some similarites to an international incident, the sinking of the Rainbow Warrior ship and subsequent international incident over the trial of French spies who were able to largely circumvent their sentences.

*Update: The issue of competing jurisdictional claims by Italy and India is an interesting one.  Italy could certainly prosecute the marines on the nationality principle.  India could claim either passive nationality principle or the territorial doctrine based on the fact that the effects were felt on the Indian ship (an extension of India's territorial sovereignty).  While we pointed out the similarity of recent events to the Rainbow Warrior affair, the underlying principles of competing sovereignty invoke another famous international law incident -- the S.S. Lotus and subsequent 1927 decision in the Permanent Court of International Justice.  The basic rule of international law is that either party may exercise jurisdiction; having the marines around obviously makes it easier to hold a trial and execute any sentence.  An excellent analysis of the jurisdictional claims pursuant to Lotus and subsequent treaties may be found over at Opinio Juris.