The Arrest and the Prosecution of ALONDRA RAINBOW Hijackers: Indian Experience

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The Arrest and the Prosecution of ALONDRA
RAINBOW Hijackers Indian Experience
Professor Sanjay Chaturvedi Centre for the Study
of Geopolitics Panjab University Chandigarh
India International Conference on Piracy and
Crime At Sea Kuala Lumpur, 18-19 May 2009
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Incidence Phase The Broader Context

• The SUA Convention was yet to come in force
• The Maritime Zones Act of India1976 (domestic
  jurisdiction issues)
• 1999 (Chinas crackdown on the pirates)
• The pirates looking for yet another promising
  political economy to penetrate

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Incidence Phase

• October 1999 the vessel MV Alandra Rainbow
  (owned by Japanese, flying a Panama flag and
  carrying 7000 tonnes of Aluminum ingots valued
  between US 8-14 million ) reported missing with
  17 crew members on board!
• Soon after the ship had sailed from Kuala Tanjung
  in Indonesia for Miike in Japan, a gang of
  pirates armed with swords and guns hijacked the
  ship. The crew was transferred to MV SANHO and
  held captive for a week and eventually set adrift
  in a life raft on 29 October 1999. Rescued by a
  Thai fishing boat 10 days later on 8 November,
  off the North East coast of Sumatra.
• The Japanese Master Mariner filed a complaint
  about the incidence with Thai authorities.

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Incidence Phase Enters India!

• 28 October 1999 The IMB Piracy Reporting Centre
  commenced broadcasting a message to ships at sea
  via safety NET service of Inmarset-C requesting
  to report any ship which matched the description
  of Alondra Rainbow.
• 14 November 1999 the master of a Kuwaiti tanker
  reported sighting a ship matching the profile of
  the Alondra Rainbow heading into the Arabian Sea.
• The IMB Piracy Reporting Centre passed this
  information along with a photo of the Alondra
  Rainbow to the Indian Coast Guard, requesting
  assistance.

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Incidence Phase The Indian Response

• The Indian Coast Guard immediately dispatched a
  patrol aircraft to search the area. The suspected
  ship had a name MEGA RAMA and was flying a Belize
  flag. Quick checks by the IMB confirmed that no
  such ship was registered in Belize.
• Indian patrol aircraft attempted radio contact
  with the ship but in vain.
• It was only when a missile carrying Corvette, INS
  PRAHAR was called into action that the high seas
  chase was brought to an end through a graduated
  use of force.
• 16 November 1999 Mega Rama captured (300 miles
  south west of Mumbai?). The 15 Indonesians found
  on board allegedly attempted to destroy the
  evidence by setting fire to and scuttling the
  ship. The naval boarding party put out the fire,
  brought the flooding under control and towed the
  ship to Mumbai.

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Legal Phase A Legal Vortex

• It was for the first time that a Pirated vessel
  was apprehended and the offenders were caught red
  handed (in Indian waters?).
• The owners of the ship were Japanese, part of
  the crew were mixed with Indonesian and
  Philippine origin. The pirates were mostly
  Indonesian , the offence committed in Indonesian
  waters, the consignment of the Aluminum was for a
  third country buyer, the vessel was chased in the
  Indian waters and apprehended by Indian maritime
  forces. The Law enforcement agency in India, the
  Police were not oriented in maritime crimes at
  all . The involvement of IMB, the Insurers and
  the Japanese government at different stages was
  inevitable to make a strong case (RS Vasan)

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Framing Charges with regard to Piracy in
Alondra Raibow Case

• Numerous difficulties encountered even in finding
  the relevant sections of the Law of the land or
  even an international law that could be made
  applicable in respect of Piracy.
• The law enforcement agencies had to finally seek
  the relevant sections of some old Admirality
  provisions which thankfully were still
  applicable.
• The accused were held guilty on eleven accounts
  including charges of attempts to murder, forgery,
  criminal conspiracy, assault and using deadly
  weapons, invoking the relevant sections of the
  Indian Penal Code.

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Framing Charges! How comprehensive is the current
legal regime?

• To quote Professor Don Rothwell, despite
  significant, unprecedented moves by the
  International community to address the growing
  threat posed by maritime piracy, considerable
  legal challenges remain. It is clear that the
  current legal regime is not comprehensive with
  respect to the enforcement of either
  international law or domestic criminal law
  against those responsible for piracy attacks. The
  jurisdiction of a State over acts of piracy is
  based upon NATIONALITY OR TERRITORIALITY. That
  is, there must be a genuine link between the
  State and the ship , or between the State and the
  waters on which the offences take place.

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Judgment of the Trial Court of Additional
Sessions Judge, Greater Bombay (25 February 2003)

• The trial court convicted the appellants for
  offence punishable under section 307 (Attempt to
  Murder), read with section 120-B (1) r/w section
  34 of the Indian Penal Code and sentenced them to
  suffer R.I. for 7 years and to pay a fine of Rs.
  3,000/-each, in default of payment of fine, to
  suffer further R.I. for 2 months
• The trial court also convicted the appellants of
  offences punishable under sections 353 (assault
  or criminal force to deter public servants from
  discharge of his duty), 188 (disobedience to
  order duly promulgated by public servant), 437
  (mischief with intent to destroy or make unsafe a
  decked vessel or one of twenty tons burden) 465
  (punishment for forgery), 468 (forgery for
  purpose of cheating, 471 (using as genuine a
  forged document or electronic record, and were
  sentenced to suffer R.I. for various periods on
  each count and fine was also imposed on them of
  Rs. 5,000 for each count

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Christianus Aeros Mintodo v. The state of
Mahrashtra (In the High Court of Judicature at
Bombay judgment dated 7 March 2005)

• Considering the peculiar facts and circumstances
  of the case, particularly since no evidence has
  come on record to indicate that persons who were
  arrested were the same persons who had committed
  offence of piration in high sea. The Captain of
  the ship P.W. 2 in his evidence has not been in a
  position to identify the accused in the test
  identification parade as also in the Court. It is
  also not clear as to where the ship was seized .
  If the ship had been seized near Goa, it was the
  duty of the coast guard to have taken the ship to
  the nearest port which is Goa. In that case, Goa
  court alone will have the jurisdiction to
  entertain and try the said case. Further
  considering the discrepancy regarding the exact
  place also, there is serious doubt regarding the
  exact location where ship was seized. It is a
  matter of record that at one stage, it is claimed
  by the prosecution that the ship was seized at
  about 300 nautical miles from Indian coastal
  line. In view of this discrepancy, in my view,
  this is a fit case where fine which is imposed by
  the trial court is set aside. Since the learned
  Counsel appearing for the appellant has made
  submissions only on the point of sentence, the
  order of conviction will have to be confirmed.

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Persistent Puzzles and Key Questions

• How come the pirates (having served a term of 5
  years, 3 months and 14 days of sentence) were let
  off with fine being waved off by the High Court ,
  overruling the earlier verdict of the Sessions
  Court?
• What were (and continue to be) the major
  inadequacies in existing laws?
• Was there a lack of seriousness on the part of
  concerned agencies in understanding the stringent
  requirements in the court, after the ruling in
  the sessions court which had found the accused
  guilty on several counts?
• How do we explain the unwillingness of the
  Japanese master of the vessel to identify the
  culprits?
• And what about the doubts over location (Kochi,
  Goa, Bombay)?

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Looking Ahead Lessons, Promise and Pitfalls

• Need for critical introspection and a serious
  and systematic search for a more coordinate d
  response among various agencies and stake
  holders.
• International Law Commission may like to revisit
  the definition of piracy
• State and status of specialization in maritime
  law and capacity building under international law
• Coastal Security Scheme (marine police, coastal
  police stations, jurisdiction, coordination)
• Regional and sub-regional cooperation and the
  role of International Maritime Community (a new
  role for IOR-ARC?)
• Role of Naval Diplomacy and the need for regular
  maritime dialogues among the littoral states and
  extra-regional states
• Seeking a more comprehensive legal regime to deal
  with threats of piracy and crimes at sea

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