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Mar 24, 2013 at 08:56pm IST

SC took too long to say marines' trial in Kerala was wrong: Italian minister

Karan Thapar: Hello and welcome to Devil's Advocate. How does the Italian government defend its handling of the marines' issue? That's the key subject I shall explore today with the country's Deputy Foreign Minister Staffan de Mistura.

Minister, let me start with a simple question. Can you now accept today that your government has badly mishandled the marines' issue and you have ended up tying yourself in knots?

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Staffan de Mistura: Well, let's put it like this. It has been a very complicated issue from the very beginning and we have made, all of us, quite a lot of mistakes.

Karan Thapar: But the main mistake that you have made is that in a short period of 11 days, your government has ended up taking three different positions. You first guaranteed that the marines would come back by March 22 then you said they wouldn't and now you had to hasten to bring them before the deadline. Every time I turned the newspaper, it seems the Italian government was taking a different position.

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Staffan de Mistura: Your dates were totally correct. Let me elaborate why and how and perhaps there would be a logic although in politics and in emotions, you know, logics sometimes needs to be explained.

Point number one, the Ambassador and the two marines gave their words. Our word is a very important endeavour, like for you.

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Karan Thapar: Can I interrupt? And that word was supported by an affidavit saying that the ambassador was speaking on behalf of the government, so the government gave its word?

Staffan de Mistura: Exactly. So, their statement was correct and their commitment was correct. The two marines through a very gracious decision, I must say, by the Supreme Court went to Italy. What happened afterwards? During that period when they were in Italy, there was an indication that there was going to be an established a special court, that was the first early warning. Put yourself in Italy for a moment.

ALSO SEE http://ibnlive.in.com/news/kerala-police-lured-marines-in-indian-waters-italian-minister/380763-2.html

Karan Thapar: No, minister you are wrong on facts. The indication that a special court was going to be established didn't happen when the marines were in Italy. It happened on January 18 when the Supreme Court in India so ruled - well before the marines went.

Staffan de Mistura: Yes. But check on one point please, at least what we got. The Supreme Court decided on January 18 that there should be a special court and in fact almost reprimanded that there was delay on it. During the period of the bail, the so called open bail, there was an indication.. Let me just specify as that's what made a difference, that a court was going to be established. In other words that was the first move. Go back to Italy please, wait a moment and think about one issue at that time the feeling that a special court was becoming a reality, became immediate.

Karan Thapar: But then it is more bizarre that if it became immediate that a special court was becoming a reality and if that was the feeling in Italy why then did you choose not to send the marines back? Lesser up saying that we are so happy that special court is happening and we will definitely send our boys back, you did exactly the opposite. So your explanation contradicts with what you did.

Staffan de Mistura: The feeling and the perception in Italy based on a very strong law in Italy is if a court, which is being established in a country where there is, even far away, the possibility of capital punishment, immediately - we have laws too and you have to accept those - that law was stopping even a foreigner, not an Italian, to be allowed to go to a country where there could have been indicted and capital punishment could have been taken. That's the time when, exceptionally, and trust me that was a very difficult decision, the word given was suspended, painfully but suspended.

Karan Thapar: Minister, actually once again the facts don't match up with your suspicion or your fear that your marines could have been exposed to the death penalty because in December when they were permitted to go back and they then returned in January, they faced charges in the Kerala High Court, which arguably, although perhaps exaggeratedly, could have led to the death penalty and yet despite that they came back. In February, when they went the Kerala High Court case had been quashed, there were no charges against them and therefore there was no question of them facing a death penalty at that point of time and suddenly you dreamt up the death penalty as an excuse to not send them back. So, when it should have been an explanation for not sending them back, you sent them back and when it shouldn't have been an explanation, you dreamt it up with an excuse and didn't send them back. That's why people in India say it's been mishandled.

Staffan de Mistura: Well, let me continue then. That is true, the facts that you described. But what you don't have in your own picture is the fact that for us, when we learnt that the Supreme Court has decided something, now we respect the Supreme Court as it's the highest standing in India...

Karan Thapar: You can't say you respect the Supreme Court when you put yourself both as a government and your own ambassador was personally put in that position of going back on a solemn undertaking. You can't respect a court and then go back on a solemn undertaking to the same court.

Staffan de Mistura: Well, if I can continue.. Once, the Supreme Court established a totally a new court, which had already agreed the Supreme Court in Kerala they had mistaking for one single year to handle this issue and they could not even handle this. The Supreme Court decided to establish a totally new court that became reality during that period. I am just explaining the reasons, then you make contradict. Once the feeling was that this new court, serious court, last court, the only court according to you and rightly perhaps because this is a unique case, never happened before then we came up, perhaps emotionally but we also have emotions about our own law about capital punishment, and that provoked the suspension of the affidavit. Can I give you another reason?

Karan Thapar: Can I pause you there?

Staffan de Mistura: I allow you.

Karan Thapar: Think for a moment what the situation emerged as a result of what you are saying to me. You ended up putting your government and your ambassador in a position where for a fairly long period it looks as if they had lied to the Supreme Court, you fronted Indian opinion publicly across the board, worst of all you have now ended up in a situation where in Rome your own opposition and your own press is ridiculing you. 'Il Giornale' says that you have betrayed Italy, Senator Maurizio Gasparri says the whole incident was ineptly conducted and you have exposed your own country to ridicule. So you got worst of both worlds - in India and home. Your government has lost out everywhere.

Staffan de Mistura: I am not sure about that. From our point of view, capital punishment is a blockage. We had then obtained from the Indian authorities a written statement, which came in time for reassuring the point and we then decided, as we should have done, on that basis there is no reason to not respect a word given and they returned with me here.

Karan Thapar: Except minister, if you had consulted any lawyer, you would have discovered that this case would never have been considered by any court as rarest of the rare and therefore, it would have never qualified for a death penalty. Harish Salve, who was your lawyer until last week, could have given you the reassurance at the drop of a hat. So, this concern that you had, that if your boys were sent back they would face the death penalty, is a *fiddly, it's not a real concern. That's why I say, your explanation doesn't wash with the Indian public.

Staffan de Mistura:It does wash with us anyway but you have to come to Italy and see what does it mean. A special court, the word special is quite worrisome but we understand why you are doing it. Special court which has not clearly stated in a long constitution is not yet there, that death penalty would not be applicable. Now you may say any lawyer would have told you the contrary. Probably. But we have a law and our law says if anyone...

Karan Thapar: So why did you sent them back in December or January?

Staffan de Mistura:Because the special court had not yet been established. There are the laws, we knew they were...We had one higher up, one higher up, one higher up and you still proved and the Supreme Court very rightly decide that Karela had made a major mistake.

Karan Thapar: Can I add?

Staffan de Mistura:So we were waiting for the last resort, a new resort and we needed to have guarantee...

Karan Thapar: In which case minister, when on March 11 you informed the Indian government that marines were not coming back, why didn't you give this as your reason? Because the reason you gave at that time had nothing to do with your fear and concern of death penalty, nor did it have anything to do with the fact that the whole process of setting up a special court was taking time. Which is what you said to a press conference in India the other day. The reason you gave on March 11 was that, in fact a dispute has been created between the two governments because the note on March 6 had not been responded to by March 11. In other words, government has taken 5 days and you felt that therefore, it was too long and a dispute had come into being. Nothing to do with the death penalty, nothing about the delay it was said. That's why people said, these are the excuses that have been dreamt up after the event.

Staffan de Mistura:The reality is that it was in it but you cannot identify because letters do not speak for themselves. If the emotional aspect of the word 'death penalty' for a military on its duty like they were. That was brewing inside the feeling that, that was the no.

Karan Thapar: You know what people say, people turn around and say it was not a fear of death penalty, the was the reason why marines weren't sent back originally, it wasn't the delay that worried them. What really worried the Italians is pressure. One, you realize that the European Union was not going to stand behind as you wanted them on this issue and secondly perhaps the Hindustan Times today claimed, you were scared that the 12 billion dollars worth of defence deals might fall by the waste side and that's important for your economy. Economic pressure and political pressure ensured that the Italian government and, forgive this word, buckled under pressure and sent the marines back.

Staffan de Mistura:Well that a little bit unfair, frankly. Secondly they were sent back to their own embassy, as you know because they are here and not being sent to a jail. Thirdly, it is true that we treasure, a lot, our relation with India and I am sure that India feels the same. We have such a long tradition, not only of business but of culture or being together on it. And I am convinced that what happened unfortunately a year ago, more than a year ago, off the shore of international water of Kerala, is something that is painfully handled by us and by the Indian authorities. So we do want, and I don't deny, a solution and a diplomatic solution with due respect to the judiciary both in India and in Italy and above all, for our own emotions. I do feel sorry and I know and I went to see the families of the fishermen. Of course. And I also feel how much the emotions had been taking place in India...

Karan Thapar: And I fully understand the emotions in Italy. I am not simply questioning you toughly from the stand point of an Indian audience that is skeptical and cynical of why suddenly you have changed your mind, why you have done three flip flops over this whole issue. I also noticed that the Italian press and Italian politicians are critical as you. Angelino Alfano, the secretary of the Freedom Party, says "we have lost credibility both nationally and internationally". 'Il Giornale' says you have betrayed Italy. The questions I am asking you are echoing in Rome even louder and more critically. Suddenly you have lost as an embassy credibility in India, as a government you have lost credibility. Don't you feel that on reflection this should have been, it could have been better handled?

Staffan de Mistura: Ok. I feel that we all could have better handled this whole issue, I stared with that. I feel that Supreme Court was very correct in saying, for one year Kerala should not have handled this, it's such a complex international issue. I feel that on our side, we should have been more careful with emotions. Let me on the other side explain...

Karan Thapar: Did you otherwise experience those emotions?

Staffan de Mistura:One point that you rightly said you mentioned from politicians in Italy, we are in a post electoral mode. I am sure in India too there must have been some critical mode, that is human, normal. We should be critical of anything but what we give as a priority, notwithstanding mistakes done by every side, is to try to find a fair solution and make sure that the Indian position is well respected and our position is well understood and respected.

Karan Thapar: Let me flip the discussion. Until now I have put pressure on you and I have tried to expose what I think of false or inept handling on the Italian side. Tell me honestly, where did the Indian government let you down? Where do you think that the Indian government was slow or inept or perhaps not as forthcoming as it should be?

Staffan de Mistura: You see, in this program you should have been the attacker, I should have been the defender.

Karan Thapar: I am asking you now to reverse the roles between.

Staffan de Mistura: I have a lot of respect for the Indian government and Indian people and our relation has been always very strong. So let me state the things where they made those mistakes rather say what we could have done better. If you allow me to answer...

Karan Thapar: Absolutely, give me three points the Indians could have done better.

Staffan de Mistura: Certainly, but we can also tell you where we could have done better.

Karan Thapar: Stick to the Indians for now.

Staffan de Mistura: First, we should have been able at the beginning to realise that the Kerala judges, the Kerala atmosphere, was in fact as the Supreme Court has indicated, was a wrong place for handling an extremely complicated case.

Karan Thapar: In other words, the Supreme Court took too long to come to that conclusion, it should have come to that conclusion a lot earlier.

Staffan de Mistura:I was coming to the second point but you said it. We have been waiting eleven months.

Karan Thapar: And you got frustrated?

Staffan de Mistura: We got emotions coming up, we too have families. We too, like you, trust our military should be defended when they are on duty, even...

Karan Thapar: And India did not understand that?

Staffan de Mistura:Well, they did not act on it and therefore luckily Supreme Court, be lately and in all fairness, did so they should have done much earlier. We would have been able to find some formula much earlier. What made Italians terribly frustrated was the feeling, perhaps there was a strategy of prolonging this and I am sure there was not...

Karan Thapar: And what would have lied behind that strategy?

Staffan de Mistura:We don't know, political...

Karan Thapar: You thought in other words you are being lured into some sort of trap?

Staffan de Mistura: No. But that we could have been perhaps falling into an agenda of Kerala related political environment, which is human...

Karan Thapar: Did you raise these concerns with the Indian government? Did you rate it with the South Block, the foreign office?

Staffan de Mistura:I would not elaborate frankly on my discussion with India authorities, I think it's up to them to elaborate. I have respect for their procedure. But let me tell you this third mistake if I may or the third moment. The third one would have been that while we all feel that we should find a solution, we should have been perhaps also in a position of discussing without negotiating. I recognise negotiation is not an issue when you have serious things like two people dead and two military on it. It should have been together perhaps find a way to analyse it, what does it mean when two military on official duty on international waters make a mistake or not, probably, perhaps not..

Karan Thapar: In other words the two sides should have got together, put their heads together and try and understand the situation better?

Staffan de Mistura:Bravo. Because it has been unheard of. The last case of perhaps something similar to that was in 1912.

Karan Thapar: Let me put to you two concerns from the Indian side and ask whether you agree with them. Given that this incident in February last year clearly happened outside Indian territorial waters, it happened some 22 miles away from the Kerala coast.

Staffan de Mistura: Correct.

Karan Thapar: Given that by the time Indian authorities found about it, the Enrica Lexie was already 30 miles and therefore clearly in the high seas. Why did your captain comeback to Cochin? A theory is, he was lured back or brought back on some grounds of deception. Can you confirm that?

Staffan de Mistura:I can tell you what I know rather than confirming because I hope the Indian side would discover that. Point number one, all what you said is correct, he was there. Point number 2, he returned not inside the national waters because he was never inside national waters. But I will quote instead, I think a senior official of the Kerala Police, who actually very proudly said - "we have lured them in".

Karan Thapar: We have lured them in?

Staffan de Mistura: Yes, he said so, I am quoting an Indian policeman from Kerala.

Karan Thapar: Can I interrupt?

Staffan de Mistura: No.

Karan Thapar: Can I interrupt because it is so important?

Staffan de Mistura: But I have a point...

Karan Thapar: I will come back to you. The theory in India and I want you to confirm or deny it for me. It's that in fact when Indian authorities contacted the captain of the Enrica Lexie he was told that there has been a piracy incident and they would require him to come and cooperate on friendly terms. He agreed to do so, believing that he was simply coming to cooperate and then found that the two of his marines were arrested. Now in other words, you would say he was lured and the basis was a deception. Can you confirm that?

Staffan de Mistura: Yes, I can. Now can I continue? The question perhaps you should ask me but I do not want to do your job is why did he actually return, on that basis, for the reason you just said?

Karan Thapar: That he had a clean conscience.

Staffan de Mistura:Yes, bravo, you said it.

Karan Thapar: Alright.

Staffan de Mistura: He felt he had clean conscience so did the marines. Actually said, yes we did shoot at what we perceived or believed were pirates. From that point of view, that was the beginning of when the things started becoming complicated.

Karan Thapar: Two quick questions and then we are going to come to the end of this interview. Now that the marines are back, now that the government has assured you that the special court on which it seemed to be dragging its feet will be set up expeditiously. Clearly, the marines will be tried there but if they are found guilty and if they are sentenced will they serve term in an Indian jail or will you seek at that point to ensure that they serve their sentence in Italy?

Staffan de Mistura:I cannot elaborate on this at this stage. I am not a judge, neither are you. What I can tell you is we are taking into account very strongly that fact that the Supreme Court has decided, your Supreme court and we respect it, that there would be a new special court because the case is so complicated, unheard of. What we are asking if that takes place and it should take place because it has been decided by the Supreme Court to be fast, quick, and expeditious.

Karan Thapar: But you would not tell me whether the marines will serve in an Indian jail?

Staffan de Mistura: And at the same time we maintain our position and I would like to restate it while respecting the Supreme Court, we are in India. That now our position, military should be judged in our own country. And by the way we discussed it the other day, you remember...

Karan Thapar: The other day was last year.

Staffan de Mistura:The Indian military would have done exactly what we are doing.

Karan Thapar: Very possibly, but I am not questioning you as an Indian versus an Italian although I am Indian, I am questioning you as a journalist. And I am actually skeptical and is doubting. And I want to end by asking you about your boss Foreign Minister Giulio Terzi who gave an interview to 'La Repubblica' yesterday where he claims astonishingly that Italy deliberately created this crisis to negotiate better conditions to the marines and to guarantee that death penalty would not apply to them. Does he really mean that or was it just a sad fig leaf to cover his embarrassment?

Staffan de Mistura:I would ask you to ask him this because I arrived yesterday evening late, before actually been able to talk to anyone. What I can tell you is that I confirm that what was the breakthrough of all this was the assurance by the Indian authorities very correctly that no death penalty would be applicable.

Karan Thapar: The only thing Minister as I have said many times before that assurance could have obtained much earlier. You did not need to gamble or create a crisis for it. Secondly, you boys went home in January when there was no such assurance so what they needed one this time. That's why I end by saying, in Indian eyes a lot of damage has happened to good name of Italy, a country that we or India looked upon as a close friend; they now look upon with suspicion. Don't you regret that?

Staffan de Mistura: I do and we all regret it. And I am sure you regret it too as I can see. But let's look forward. First of all yesterday I met the Foreign Minister of India, we decided together that the crisis is over.

Karan Thapar: You mean that - the crisis is over?

Staffan de Mistura: Definitely, we love the relationship we always had between India and Italy. We want to settle the issue, start again diplomatic approach in our dialogue, I am not saying negotiations and go forward now.

Karan Thapar: I am glad we are ending on a positive note. We began quarrelsome but at least we are sorting it out some of those issues. My last question, if this issue ends, with the marines being tried found guilty and sentenced, will we have another crisis?

Staffan de Mistura: I can't speak for the Italian people, for their emotions, I can only tell you one thing, we have to find a quick formula solution for this issue because the two countries deserve definitely more than the simply having a crisis.

Karan Thapar: Staffan de Mistura, a pleasure talking to you.

Staffan de Mistura: Thank you.