On Wednesday 13 January 1993 the ship, M.V.Ahat was unlawfully interceptedby the Indian
Navy in international waters inthe 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 actunder 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
Petitiondeclared that under the Law of the Sea Convention, which constitutes customary
international law and to which India is a party, India has no rightto 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!
