Horror at Sea
How did Pakistanis get killed in a fishing boat explosion?
Just as the year 2015 was being ushered in with jubilations the world over, a horrible saga of terror was unfolding in the North Arabian Sea some 365 km off Porbandar. In the incident a Pakistani fishing boat was first intercepted and then sunk on mere suspicions of undertaking unexplained illicit activities. It reflected poorly on the level of professionalism in the Indian Coast Guard personnel who couldn’t muster enough courage to board a 30 horsepower fishing boat manned by four unarmed fishermen. Boarding and searching is a standard requirement if the need arises to investigate a vessel of another state on the high seas.
The Indian Defense Ministry spokesperson swiftly took a position that the boat stopped after coast guard personnel fired warning shots but soon thereafter the four crew members went below deck and set it on fire, triggering a major explosion. The footage of the flames engulfing the stricken vessel belied any evidence of an explosion but the ministry was nonplused with this minor detail. Later, B K Loshali, Deputy Inspector Generalm Indian Coast Guard, confessed that he had ordered the boat to be blown up but reneged from his statement under pressure from the government though his initial statement is on record and had gone viral on the social media.
The Coast Guard didn’t share information about the incident with the Indian Navy (IN) which is rather unusual since the IN is the lead maritime agency but it threw its weight behind the Coast Guard version as perhaps it wanted to avoid embarrassment for the government as well as portray success of its installed mechanism of coastal defense - the lack of which was roundly criticized after the Mumbai incident.
Clearly, there is a discernable pattern in this belligerence which is a trickledown effect of Prime Minister Narendra Modi’s RSS roots and his anti-Pakistan rhetoric in the run up to last year’s elections. The Indian security establishment wasted no time in translating Modi’s contemptuous sentiments against Pakistan into fire and destruction - first through the new Indian army chief issuing a warning to Pakistan on the very first day of his assumption of office against all established norms between neighbors and then through unprovoked and indiscriminate firing along the LoC and working boundary, stretching it all the way south to the high seas off the Gujrat coast.
The boat had not violated any of International or Indian domestic laws and was blown up through use of excessive force purely on suspicion and whims of the Indian authorities in which four Pakistani citizens lost their lives. The incident is blatant banditry on the high seas and deserves perusal in accordance with international law, the extraterritorial jurisdiction of which is exercised and justified through a number of principles, such as the objective principle territoriality, effects doctrine, protective principle, nationality principle, passive personality principle and the universality principle.
Both India and Pakistan do not dispute the fact that the incident took place in international waters beyond their territorial waters and contagious zones. The Indian Coast Guard, therefore, and without a shadow of
doubt, has violated international law. The well-known contentions by Delhi in support of their actions do not hold water.
India and Pakistan are not in a state of war. The central question on which this dreadful incident must be pursued is the overlapping jurisdiction of Pakistan’s laws with any of the afore-stated principles enshrined in international law, in such cases, in peace time environments. The scarlet thread running through all these principles is the valid interest of the Pakistani state on the basis of sufficient connection to the four deceased persons and their property.
For interception of vessels further inshore in the contagious zone extending a further twelve miles from the territorial waters of a state, article 111 of the United Nations Convention on the Law of Sea (UNCLOS), permits hot pursuit of a foreign vessel, provided the competent authorities of the coastal state (India in this instance) have good reason to believe that the ship has violated the laws and regulations of that State.
Here too, the UNCLOS article stipulates that if the vessel was within a contagious zone of the state, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. The Pakistani fishing boat was in international waters. For interception in the contagious zone, a flag state vessel would have to be violating the coastal state’s laws on ‘customs, fiscal, immigration or sanitary’ laws since these are the contingencies for which the international law permits hot pursuit in this zone.
The Pakistani boat was well outside the Indian contagious zone where hot pursuit cannot be carried out unless the two countries are at war with each other. Besides, Article 92 of UNCLOS recognizes vessels of flag state as floating territory of the state and hence it is exclusive jurisdiction while it is on the high seas. The balance of law is clearly in Pakistan’s favor and the opportunity should not be wasted to pin down India.
India cannot be selective in the application of international laws and jurisdictions when it suits the country and wriggle out when it does not. In 2012, in a high profile incident, two Indian fishermen were killed by two marines posted onboard an Italian oil tanker ‘Enrika Lexie’ approximately 21 miles from the Kerala coast. Merchant vessels do not carry armed personnel but the UN had sanctioned the carrying of armed guards due to the prevailing extraordinary piracy situation in the India Ocean.
The Italian vessel was passing through the contagious zone of India when the Indian Coast Guard intercepted it nearly 60 miles from the coast and diverted it to Kochi port where the two marines were arrested and charged under Section 302 of the Indian Penal Code. In the trial proceedings, it is believed that the prosecution leaned heavily on the principle of objective territoriality, the effects doctrine and the protective principle.
India’s Director General of Coast Guard and the culprits who perpetuated this horrendous crime are not in Pakistan’s custody as the Italian marines were in Indian custody. But the fundamental fact remains the same – innocent fishermen were killed in cold blood in both instances and the Pakistani state has a constitutional duty to demand justice and compensation in accordance with international laws for its four dead citizens and their property of which they have been wrongly deprived by the Indian action.
In 2000 just before President Clinton’s visit to India, 40 Sikhs were killed in Chhatisingpora village in Kashmir. At the time even the US administration felt that there was something queer about it and could well have been orchestrated to influence US policy against Pakistan during the visit. Later, in the forward for a book, Clinton blamed ‘Hindu militants’ of creating communal discord. India blamed the LeT for the incident although the suspected persons was later acquitted by a court in New Delhi. Similarly, another five persons killed by the Indian army were not found to be connected with the incident in any manner. In this case also President Obama was scheduled to visit New Delhi a few days later and similar motives cannot be ruled out.
Unlike the incident involving the Italian oil tanker, where the marines who killed two Indian fishermen were in Indian custody, the perpetuators of the crime of killing Pakistani fishermen are roaming around freely in India. Pakistan’s foreign office has asked India to conduct a transparent enquiry into the incident and share the details with Pakistan and repeats this demand off and on in its weekly briefings but this is not enough.
India has not made any significant headway on the Samjohta Express tragedy which has been lingering for far too long and in which the involvement of an active service Indian army officer had been established clearly and beyond any shadow of doubt. It is therefore expecting too much from India to carry out any investigations into this murderous conduct of its coast guard.
But Pakistan now has a constitutional obligation to protect the lives and property of its citizens. It must not allow procrastination in the matter and must take it up at an appropriate international forum. We must do everything within our means to bring the offenders of this horrendous crime to justice and seek compensation for the families whose breadwinners were killed in cold blood.