Hor­ror at Sea

How did Pak­ista­nis get killed in a fish­ing boat ex­plo­sion?

Southasia - - CONTENTS - By Taj M Khat­tak

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.

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