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Italy eyes ‘Nato immunity’ for escape
MADHAV NALAPAT  NEW DELHI | 26th Feb 2012

Members of the security crew of the Italian ship arrive at a government guest house in Kochi on Monday. PTI

few days ago, Frank Wuterich, the Marine Corpsman guilty of leading the group that shot dead 24 unarmed Iraqi men, women and children in Haditha in 2005 was "honourably discharged" from the US military. He was the only one of the killer squad to have been arraigned before a court of enquiry, and the lenient punishment given to him is typical of the lack of punishment meted out to Nato personnel engaged in operations in "uncivilised" parts of the globe. Thus far, not a single Nato soldier has been called to account by the UN human rights machinery in Geneva or the International Court of Justice at The Hague. The alliance, which is dominant in both these institutions, has essentially given itself a free pass, even while using the excuse of "attacks on civilians" to justify interventions in locations such as Libya and now Syria. Online, several former and present Nato soldiers have posted detailed accounts of how they "accidentally" killed civilians — including several women and children — in Iraq, Afghanistan and other theatres. Thus far, no effort has been made to subject Nato to the same standards prescribed for "uncivilised" militaries. By definition, troops of a Nato member cannot be guilty of a crime, only of a "mistake". Whenever the incidents of killing of civilians has been too egregious to overlook, a Nato commander steps forward before television cameras and expresses his "deep regret and sorrow" for the loss of human life. In some cases, a small payment is given to the families of victims.

This tradition of immunity from punishment for the taking of innocent lives has led to a "shoot first and ask questions of the dead later" mindset within the ranks of the men and women serving Nato. The collateral damage that such immunity causes has been exacerbated by Nato's Rule One, which is to avoid casualties, even if this involves a steep price in "collateral damage". So nervous are Nato members of negative reactions back home to the coffins of their "heroes", that commanders often order strikes on the merest suspicion of hostile intent. For example, US ground forces in Iraq have been told to regard the act of running as a sign of hostile intent, and to bring down the person or persons involved, even if they be running away from troops. That flight would be the normal reaction of a rational human being at the sight of heavily armed, aggressive aliens coming towards him seems to have been overlooked, with fatal consequences for several unarmed Iraqis. Even speaking back in a loud voice has been judged to be sufficient provocation for an order to fire. As the case of Wuterich (or the presidential pardon given to the man who led the My Lai butchery in 1968, William Calley) indicates, members of Nato are unwilling to inflict penalties even on those soldiers who clearly indulged in actions incompatible with military necessity or honour. "Protection of one's own" has been extended to mean protection against criminal acts carried out on "uncivilised" people as well.

Small wonder that the Italian authorities are seething at the effrontery of the Government of Kerala in insisting that the two marines alleged to be guilty of the murder of two fishermen off the Kerala coast on 15 February be subjected to the same process as other killers. Italy is a member of the European Union, and if one were to go by the records of the International Court of Justice or the UN human rights panels, the EU is incapable of conducting a human rights violation, even when it bombs, shoots and torpedoes human clusters. The Catholic Church is proof of this saintly quality of Europe, as more than 99% of Catholic saints are either from Europe or of European ethnicity. Clearly, those from the European Union are many, many times more saintly than the rest of the world combined, a fact reflected in their zero rate of international prosecution for human rights abuses. It is this knowledge in the exceptionalism of the European Union that seems to have generated the aggressive Italian moves to get the two alleged killers released and "sent for trial to Italy". If the Italian media gives any indication of what authorities there are saying, it is that the men "acted in self-defence", as they had an impression (and in a rare concession, the Italian side admits that such an apprehension may have been mistaken) that the fishermen on board the tiny "St Antony" were pirates armed to the teeth and minutes away from attacking the huge "Enrica Lexie". Similar mistakes, usually resulting in considerable loss of innocent lives, have been made by Nato units before. Indeed, they are commonplace. If thus far no country — such as Iraq or Afghanistan — has dared to contest the "right" of Nato members to have their personnel tried in courts at home, how can an exception be made for India, clearly a country that is neither European nor a member of Nato?

Had the Italian ship truly been in "international waters" as claimed by authorities in that country, it is unlikely that the captain would have agreed to the request of the Coast Guard that the ship come to Kochi for further investigation. Unfortunately, thus far neither the GPS systems, nor the ship's logs, nor the weapons involved in the incident, have been handed over to the Kerala police by the Italians. It would not be unfair to surmise that such reluctance would have been absent, had such evidence showed that the Italian Navy shooters were guiltless. Perhaps as part of Tourism Promotion Year, or Love Italy Decade, the Kerala police have thus far not dared to take charge of the evidence on board the ship, thereby opening the real possibility of this having been destroyed or otherwise tampered with.

It is claimed that Minister of State for External Affairs Preneet Kaur has been keeping Congress president Sonia Gandhi informed about the incident, for example after her meeting with the junior Italian minister on 22 February, and that Principal Secretary to PM Pulok Chatterjee has been taking "daily interest" in the fate of the Italian marines and their treatment. Mr Chatterjee need not worry. The two are in lodged in a luxurious suite of rooms at the CISF Guest House in Kochi, and are being fed the best Italian food available in Kochi, with their own choice of menu and aperitif. An unintended consequence of such concern for the culinary rights of the two Nato marines may be to encourage others to shoot at Indian fishermen off the Kerala coast, now that the Kerala police seem so determined to make the incarceration of such offenders so pleasurable. Reports are that Chief Minister Oommen Chandy is unhappy at the kid glove treatment given to the two marines, and that he has been in favour of strong action against the alleged killers from the start. However, his views do not seem to have prevailed with his own authorities, for reasons unknown. However, it is largely because of the Kerala CM's strong stand that those within the Indian establishment who have been in favour of the Italians sailing away to safety have not had their way so far.

Apart from the fact that the Enrica Lexie was in waters under the control of the Indian Coast Guard when the incident took place, and the fishing boat as well as those killed were Indian, the "Law of the Sea" does not in any way support Italy's claim that simply because the firing took place on an Italian ship by members of the military, only Rome has jurisdiction over the matter. Such a stand implies that India has signed a Status of Forces Agreement (SOFA) with Italy, that gives that country the right to try its own military personnel, no matter how grave the offence. However, Italy's stand is consistent with that of other Nato members, all of whom are united in demanding that only their legal systems have the competence needed to try their personnel. Of course, it is precisely these systems that have led to the culture of impunity which suffuses Nato military action across that part of the world which is not part of the alliance. Should the two marines be found guilty by a court in Kerala and put away for a long stretch in an Indian prison, the example may be a warning to Nato about the ill-will being caused across the world by its claim of sovereign immunity across the globe.

According to former diplomat K.C. Singh, Italy has in fact suffered a "disadvantage" because of the fact that a daughter of that country, Sonia Gandhi, is now in charge of the ruling coalition. Such a state of affairs is not obvious from the large number of contracts that have gone to Italian entities and the treatment given to Italian banking, airline and other interests in India. If Singh is correct, reports that the Italian ambassador and several of his staff have regular and privileged access to 10 Janpath is wrong, as must be reports of telephone calls from the Congress president's Italian relatives to her giving their recommendations about the stand the Government of India ought to take about the fate of the two marines. Let us accept Mr Singh's statement that it is not Sonia Gandhi who is preventing the Kerala police from getting their hands on vital evidence on board the killer ship, and who is ensuring five-star treatment to the alleged culprits. It is still a mystery as to why Italian authorities seem so confident that the alleged killers will be released soon after the Piravom bypoll on 18 March. Should this happen, and India join Iraq, Afghanistan, Libya and other countries as a location where Nato personnel can get away with murder, this country would deserve to be known henceforward as a "Pizza Republic".

Questions for the Italians

1. The Italians are claiming that the incident took place in the international waters and hence the two alleged murderers cannot come under the jurisdiction of the Indian Penal Code. If the Italian ship was on the high seas how did it end up in Indian custody? Did it voluntarily come here for its killers to get arrested?

2. Territorial waters, as defined by the 1982 United Nations Convention on the Law of the Sea, extend at the most to 12 nautical miles (22 km) from the coast. Is a small fishing boat capable of travelling this distance?

3. If the Italians thought that St Antony was a pirate boat, didn't it occur to them that it was too small a vessel for the pirates to travel all the way from Somalia to the Indian coast?

4. What would the Italian reaction be if an Indian ship had killed two of its natives off its own coast? Would they have let the culprits off or subjected them to trial in Italy?

5. Italian media claims that the Vatican intervened to ensure that the arrested marines be released into Italian custody. Is it proper to misuse the name of the Catholic Church for partisan purposes, just because Vatican City — an independent state — is located within Rome?

 
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