January 2, 2009 — drsubrotoroy
Should Pakistan hand over the terrorist masterminds now in its custody to India for trial for mass murder? Should India hand over the captured Mumbai terrorist Kasab to Pakistan for trial as a mass murderer? Such questions can lead to endless legal wrangling, no action, and no justice for all the many victims of the Mumbai massacres. It is far more expeditious for both countries to instead hand over all these characters in their custody to their respective navies for trial and punishment as pirates who have violated the Law of the Sea. The Pakistan Navy Chief and the Indian Navy Chief can agree to have their admirals meet with their respective prisoners for a rendezvous at sea in international waters. A joint trial under maritime law can be conducted on board, say, a Pakistan naval vessel in international waters. Pakistan’s terrorist masterminds can be hanged at sea on a scaffold aboard a Pakistan Navy vessel in international waters for crimes of piracy, murder and conspiracy. Kasab, if he turns State’s evidence, can plea-bargain for a lesser sentence; if he does not turn State’s evidence, he can join his handlers on the scaffold (assuming he is of adult age and sane). Pakistan’s terrorist training institutes, incidentally, will see a rapid decline in their admissions and recruitment figures once there are some well-televised hangings at sea.
January 1, 2009 — drsubrotoroy
One of my finest teachers at the London School of Economics many years ago had been Professor DHN Johnson, a pioneer of the Law of the Sea Treaty; reflecting upon the aftermath of the Mumbai massacres, it occurs to me that the Law of the Sea Treaty may provide the most expedient and lawful recourse in present circumstances, as well as a proper and clear basis for cooperation between the Government of India and the Government of Pakistan in the matter.
Both India and Pakistan have signed and ratified the Law of the Sea Treaty which reads at Article 101
“Definition of piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).”
From the captured Kasab’s confession, it is clear he and his companions began their criminal activities within Pakistan (by training as terrorists and engaging in a conspiracy to commit mass-murder) and this continued outside Pakistan at sea:
“On November 23, the teams left from Azizabad in Karachi, along with Zaki-ur-Rehman and Kafa. We were taken to the nearby seashore… We boarded a launch. After travelling for 22 to 25 nautical miles we boarded a bigger launch. Again, after a journey of an hour, we boarded a ship, Al-Huseini, in the deep sea. While boarding the ship, each of us was given a sack containing eight grenades, an AK-47 rifle, 200 cartridges, two magazines and a cellphone. Then we started towards the Indian coast. When we reached Indian waters, the crew members of Al-Huseini hijacked an Indian launch. The crew of the launch was shifted to Al-Huseini. We then boarded the launch. An Indian seaman was made to accompany us at gunpoint; he was made to bring us to the Indian coast. After a journey of three days, we reached near Mumbai’s shore. While we were still some distance away from the shore, Ismail and Afadulla killed the Indian seaman (Tandel) in the basement of the launch.”
Pirates in law are Hostis humani generis or “enemies of mankind”. As signatories to the Law of the Sea Treaty, India and Pakistan may act jointly against the Al-Huseini and others associated with the acts of piracy including the maritime murders of the Indian fishermen that preceded the Mumbai massacres, thus solving the question of jurisdiction before it arises. The remains of the nine dead Pakistani terrorists presently in a Mumbai morgue can be buried at sea in international waters by whatever funeral procedure is due to dishonourable sailors and pirates. (The fish will not refuse them.) Kasab can be tried as a pirate too — though he really needs an American defence attorney to plea-bargain for him as he turns State’s evidence against the real masterminds of the plot, some of whom may be presently in the custody of the Pakistan Government.