On Wednesday 13 January 1993 the ship, M.V.Ahat was unlawfully
interceptedby the Indian Navy in international waters in the Indian Ocean.
The ship was intercepted about 290 miles east of Hambantota in the south of
the island of Sri Lanka and about 440 miles south east of South India
(Latitude 6 degrees North, Longitude 85 degrees East).
The boat was carrying Sathasivam Krishnakumar, (also known as Kittu), one
time Deputy Leader of the Liberation Tigers of Tamil Eelam (and one of its
founding members), and several other members of the LTTE. The ship was then
forced to travel towards the South Indian coast by Indian Navy frigates.
At the time that the ship was intercepted, Sathasivam Krishnakumar was on
a peace mission to Tamil Eelam from Europe.As a direct result of the
interception and the actions of the Indian Navy, Kittu and nine other
members of the LTTE died in the Indian Ocean.
New Delhi's intervention in international waters was an act of piracy.
The International Secretariat of the Liberation Tigers presented, on
Friday, 5 February 1993 a
Petition to the United Nations
calling for the formation of a Special Committee to hear and investigate
the gross violations of international law committed by India which caused
the death of its Central Committee member, Sathasivam Krishnakumar (also
known as Kittu) and nine otherLTTE members in the Indian Ocean in January.
The Petition pointed out that the General Assembly is empowered to act
under Chapter IV, Article 22 of the United Nations Charter to establishan
ad hoc Special Committee to function as a Tribunal to investigate and report
on the gross violations of international law committed by the Indian
Government and its agents and servants against the people of Tamil Eelam and
its leaders as set out in this Petition. The Petition declared that under
the Law of the Sea Convention, which constitutes customary international law
and to which India is a party, India has no right to exercise a police
jurisdiction on the high seas.
No action was taken by the United Nations on the petition submitted
by the Liberation Tigers on behalf of the people of Tamil Eelam.
However, nine survivors from the M.V.Ahat were arrested by the Indian
Navy and lodged in solitary cells in a special wing of Vishakapatnam
jail with maximum security. They were charged with criminal conspiracy,
shipment of explosives and threatening Navy officials under the TADA
Act.
The case was heard for 37 days, and dragged on for three years. 34
witnesses for the prosecution, mostly Navy personnel were interrogated. On
the Court's directive, the Navy salvaged the remains of the sunk ship and
claimed to have retrieved rocket-propelling guns and other arms, but the
Navy did not submit the gunnery records or communication tapes of the ship
to the Court even during in-camera sessions.
Fearing that the case against the accused was not proceeding in
favour of the prosecution, the Additional Solicitor General of India
T.S. Tulsi was specially requisitioned to marshal additional points in
'defence of the prosecution in the case'. The Indian Government having
itself instituted proceedings under the TADA and invoked the
jurisdiction of the Court, now contended that the Court had no
jurisdiction to inquire into what happened on the high seas!
UNI reported on 20 June 1996:
"Additional Solicitor General of India T.S. Tulsi told the designated
court here today that the trial court had no no jurisdiction to go into
what happened on the high seas off Madras coast where the ltte vessel MV
Ahat carrying arms and ammunition was intercepted and nine militants
were captured
Mr Tulsi, ...contended before the designated Judge P Lakshmana Reddy,
that as per the 1952 convention with regard to the laws of the seas
whatever happened on the high seas was a matter between two independent
states. The two states in this case were India, whose navy captured the
vessel and Honduras to which the vessel was said to belong to. Hence the
matter could be tried only in the international court of justice if
Honduras raised any objection. But honduras had not not made any
complaint so far and had even disowned any control or supervision over
the crew that operated the LTTE vessel which was originally registered
in that country, he submitted.
He contended that the designated court had jurisdiction only to try
the arrested men for offences committed on the territorial waters of
India.
Quoting relevant provisions from the territorial waters, continental
shelf act 1976 Mr Tulsi said the territorial waters of India extended up
to a distance of 12 nautical miles from the coast, the contiguous zone
to 24 nautical miles and the continental shelf and the economic zone to
200 nautical miles.
Mr Tulsi argued that under the provisions of TADA to prove the theory
of conspiracy each of the accused need not be involved or in the know of
the real purpose for which the arms and ammunition they had carried in
the vessel would be used.
It was sufficient if they had lent substantial assistance in the
illegal act of transporting explosives, arms and petrochemicals which
were carried clandestinely, he said and asserted that there was no no
legitimate use for which these were carried. They were deemed to have
shared the intention to carry out terrorist acts, he said.
Mr Tulsi submitted that though the vessel was registered under the
name m v Ahat, it was changed in the high seas because the vessel was
engaged in clandestine activities.
He contended that the moment the vessel changed its name, it had lost
its nationality. Also the crew, did not not hoist the flag of its
nationality and did not not have necessary papers. When the Indian navy
wanted to know its call-sign, the crew gave a wrong call-signal and it
was clear that the vessel was stateless, he said. Such a vessel had no
right under the international law he contended.
Quoting international law on piracy, Mr Tulsi said the master of the
vessel was not in control of the vessel, but Mr Krishna Kumar (alias
Kittu) and he was communicating with the other vessels in the vicinity.
A pirate ship could be seized and we had the right to seize this vessel,
and contended that if hostile boarding was resisted, the Indian navy had
the right to capture the vessel.
But the Indian navy personnel did not board the vessel because of
humanitarian considerations and they feared that the men on board might
consume cyanide capsules. But later, we had no no alternative but to
resort to hostile boarding as a logical conclusion, he submitted.
Quoting from a Privy Council decision, Mr Tulsi contended that since
the vessel lost its nationality, the Indian navy had the right to board
the vessel and bring it to the territorial waters of India. Once the
vessel entered the territorial waters, it committed an offence and was
liable to be punished."
However, the TADA court judge, Mr.P. Lakshman Reddy, rejected the
submissions of the Prosecution as well as the charge of carrying
explosives against the crew, and held that the Navy and the
investigating agencies, including the Central Bureau of Investigation
and the Special Investigating Team, had failed to prove their charges
against the crew of the MV Ahat.
The Hindu International News reported on 29 June 1996 from
Visakhapatnam:
" All the nine Sri Lankan Tamil, suspected to be members of the
Liberation Tigers of Tamil Eeelam (LTTE), were acquitted by the
Designated Court of Mr. P. Lakshmana Reddy, Designated Judge and
District and Sessions Judge, here on Friday. He directed the
Commissioner of Police of Visakhapatnam to hand them over to the
Government of Honduras immediately, since m. v. Ahat, the vessel they
were sailing in, was registered in Honduras.
The prosecution's case was that the nine accused along with Kittu,
a top-ranking LTTE leader, and nine militants were sailing on m. v.
Ahat carrying arms, ammunition and petrochemicals. The vessel was
intercepted by an Indian Coast Guard ship, 440 nautical miles off the
Indian coast on Jan. 13, 1993, when it was observed that it was not
flying a flag and those aboard the vessel also threatened to blow up
the vessel if it was approached.
The naval ships which joined the Coast Guard ship later persuaded m.
v. Ahat to come near to Madras. When it was near the shores of Madras
it had allegedly fired at the naval ships on Jan. 16 and later
the cargo aboard the ship was set ablaze.
While Kittu and nine others committed suicide, the nine accused
jumped into sea and were picked up by the naval ships.
The Judge said there was no case under the
TADA Act against the accused as they were brought forcibly into the
Indian waters and also there was no evidence of any offence. He
agreed with the defence argument that the Coast Guard ship was not
justified in intercepting m. v. Yahat, when it was in international
waters and when the accused had revealed that the ship belonged to
Honduras. "
Dissatisfied with the judgment of the Trial Court, the Prosecution
appealed to the Indian Supreme Court. But the Supreme Court upheld the
Trial Court finding and ordered the release of the accused. Reuters
reported on 18 March 1997:
"India's Supreme Court has ordered the release of nine Sri Lankan
Tamil guerrillas four years after they were arrested from an
explosives-laden ship off India's southern coast, court officials said
on Tuesday. The officials said the Monday verdict upheld a lower court's
ruling that had criticised the Indian navy for intercepting the ship.
... The rebels, who were not identified, were arrested under India's
tough Terrorist and Disruptive Activities Prevention Act (TADA), after
they were accused of opening fire on Indian security forces. ``The
prosecution has failed to establish any offence punishable under the
TADA act or the rules framed there under,'' the court order said. ....
"none of the accused can be said to have committed any offence under the
Indian Explosive Substances Act and the Indian Arms Act,'' it said. ..
"If the nine LTTE men are freed, India will not want to keep
them here as free citizens of the world,'' one western diplomat said.
``Would they extradite them? That's another very sensitive prospect.''
The Indian authorities, faced with the decision of the Indian Supreme
Court, adopted an interesting approach. They re arrested all the freed
accused on charges of entering India without valid travel documents!
Agence France Presse reported on 28 March 1997 from New Delhi:
" Eight Sri Lankan Tamil Tiger guerrillas were freed by an Indian
court after spending four years in jail only to be immediately
re-arrested on fresh charges,United News of India (UNI) reported
Friday. A court in the southern town of Visakhapatnam released the eight
late Thursday. They had been arrested off the Indian coast in 1993 for
allegedly trying to smuggle plastic explosives and weapons into
India. But police re-arrested them for entering India without valid
travel documents. UNI said they would be produced before a court later
Friday."
The facts as found by the Indian Courts establish that the M.V.Ahat was
intercepted in the high seas and forced (persuaded) to travel into Indian
territorial waters by the Indian Navy. It was a proven act of piracy and
Sathasivam Krishnakumar and eight others lost their lives. Today, eight
other Tamils languish in India's jails on trumped up charges of having
entered India without valid travel documents!
