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The Enrica Lexie and Unintentional Terrorism

Cross-posted at piracy-law.com

An interesting exchange took place at the High Court of Kerala on Friday between presiding Justice PS Gopinathan and VJ Matthew, counsel for the owner of the Enrica Lexie. Regardless of the level of significance one attributes to Justice Gopinathan’s remarks, the dialogue sheds light on the tension and deep mistrust surrounding the events of February 15th.

Mr. Matthews, representing Dolphin Tankers argued that the Italian marines had to be classified as terrorists in order for the India’s statute implementing the IMO’s SUA Convention (SUA Act)[1] to apply. In response, Justice Gopinathan said, “[t]he firing on Indian fishermen by two Italian marines- Massimiliano Latorre and Salvatore Girone-off the Kerala coast was an act of terrorism…As far as victims are concerned, their relatives are concerned, as far as Indians are concerned [the alleged shooting was] a terrorist act.”

The High Court of Kerala

To be fair, Justice Gopinathan did not declare the Italian marines terrorists as a matter of law. He merely stated that that is how the general public viewed them. It is nonetheless disturbing for an officer of an Indian High Court to give voice to his private opinion about the facts of a case before him, especially when that opinion deviates so far from reality.

Where Mr. Matthew’s claims are concerned, it is far from certain that the marines must be classified as terrorists for the SUA Act to apply. Although the SUA Convention was passed with the goal of suppressing international terrorism in mind,[2] the Convention seeks to achieve its aim by proscribing acts, not classes of people. Article 3 of the SUA Convention lists the crimes punishable under the Convention, stating that if “any person” “performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship,” that person has “commit[ted] an offense” under the Convention. Similarly, the SUA Act states that “whoever unlawfully and intentionally” commits an act of violence against a person on board a ship has violated the Act and is subject to punishment for that act under Indian law.[3]

The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.

But Justice Gopinathan’s response to Mr. Matthew’s good faith legal claim was far more dubious than the claim itself. Rather than satisfying himself by pointing out that an individual need not be legally classified as a terrorist for the SUA Act to apply, Justice Gopinathan declared by fiat, and counter to all reason, that the Italian marines had indeed committed “an act of terrorism.”

Though some argue that there is simply no internationally recognized definition of terrorism,[4] Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism “has gradually emerged” in customary international law.[5] According to the STL, terrorism is defined under customary international law as consisting of the following three elements:

(i) the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.

Of the three enumerated elements, only the third, that the act must involve a transnational element, is clearly present. As for the second, there is no way to argue that the Italian marines fired upon the Indian vessel to spread fear among the Indian population or coerce the Indian government. They were acting as agents of the Italian government charged with the protection of a merchant vessel from the real and credible threat of maritime piracy. The unfortunate deaths of two fishermen do not change the character of the marines’ actions. Finally, it is presently impossible to know whether the Italians’ acts could be considered “murder” under the first prong. That determination can only be made once a competent tribunal establishes that the Italians were in fact the ones who shot the Indians and entertains any affirmative claim of self-defense made by the marines.

Furthermore, the alleged acts of the marines fails to satisfy even the minimal, “core definition” of terrorism propsed by Professor Marcello Di Filippo in the European Journal of International Law.[6] After surveying relevant international and domestic laws and sloughing aside any contested definitional aspect of terrorism, Professor Di Filippo concludes that an act of terrorism requires, at the very least: (i) an act of violence; (ii) when that act is targeted at civilians.[7] According to Di Filippo, this core definition is the absolute minimum standard under which an act could be properly considered terrorism.

Implicit in Di Filippo’s core definition is the requirement that the actor must at least believe that the targets are civilians, and one could even argue that the actor must intend to target the victims because they are civilians. Thus unless the Indian authorities can prove, at minimum, that the Italians knew that the Indians were unarmed before firing upon them, the acts of the marines do not rise to the level of terrorism. Justice Gopinathan’s statement that the marines committed a “terrorist act” accuses the Italians of a crime that does not exist – negligent or reckless terrorism.

An oral pronouncement by a Justice with no legal ramifications is hardly a groundbreaking development in what will surely be an interesting case. It does, however, illustrate the depth of mistrust between the Italians and Indians in this particular instance, with the Italians accusing the Indians of a vast conspiracy involving fabricated evidence and the Indians accusing the Italians of murder and now, apparently, terrorism. We are thus back where we started: waiting for the results of the ballistics report and hoping, perhaps against the available evidence, that cooler heads will prevail and due process will be afforded to all.



[1] Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002

[2] The Preamble of the SUA Convention notes that the state parties are “DEEPLY CONCERNED about the world-wide escalation of acts of terrorism in all its forms.”

[3] The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 Act No. 69 of 2002, art. 3(1)(a) (Dec. 20, 2002).

[4] Jean-Marc Sorel, Some Questions About Terrorism and the Fight Against its Financing, 14 Eur. J Int’l L. 365, 368 (2003) (describing the “confused mix” of definitions).

[5] Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Case No. STL-11-01/I, at para. 83 (Feb. 16, 2011), available at http://www.stl-tsl.org/x/file/TheRegistry/Library/CaseFiles/chambers/20110216_STL-11-01_R176bis_F0010_AC_Interlocutory_Decision_Filed_EN.pdf

[6] Marcello Di Filippo, Terrorist Crimes and International Co-Operation: Critical Remarks on the Definition of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008).

[7] Id. at 558-61.

5 Responses to “The Enrica Lexie and Unintentional Terrorism”

  1. Syam Kumar says:

    Thanks for the post and it makes very interesting reading.

    The question whether the Indian Courts have jurisdiction to try the two Italian Marines involved in the shooting of the fishermen from the Italian Vessel ENRICA LEXIE were answered by the relatives of the dead fishermen in Court basing on Sec.3 of the Indian Penal Code and two specific statutes that are in force in India.

    The statutes are the Admiralty Offences (Colonial) Act, 1849 and the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (the SUA Act, 2002).

    A conjoint reading of Sec.3 and the said two statutes clearly reveal that the Indian Courts are well within their powers to try the Italian Marines.

    Let us examine the provisions closely.

    Sec. 3 of the Indian Penal Code reads as follows:

    Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied)

    Section 3 of the Penal Code reproduced above has the following attributes:
    (a) It applies to all persons including foreigners and is not confined to citizens of India.
    (b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
    (c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
    (d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

    Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.

    The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.

    Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:

    Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-

    Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.

    The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.

    In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.

    The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.

    The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.

    Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:

    Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
    (1) Whoever unlawfully and intentionally-
    (a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
    (b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
    (c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;

    Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
    (g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
    (i) causes death to any person shall be punished with death;
    (ii) ……;
    (iii) ……;
    (iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
    (v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
    (emphasis supplied)
    Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
    Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
    Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
    (a) …;
    (b) …; or
    (c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)

    Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. It reads as follows:

    Thus the burden shifts on to the accused making their criminal trial a very arduous one.

    In the light of the above said Legal norms which are presently in force in India, the two Italian Marines and the Captain of the vessel are liable to be proceeded in India under Indian law. If they are so proceeded and earnestly prosecuted there is a reasonably high chance that they will be convicted.

    However as on date the Government of India under pressure from powers that be within and outside India has refused to invoke SUA Act, 2002 in the ENRICA LEXIE matter. Similarly unlike the Maharashtra Police who effectively invoked the provision under Admiralty Offences (Colonial) Act, 1849 the Kerala Police is refusing to invoke the same against the Italian accused so that the Courts in India will after a point be compelled to acquit the Italians.

    So far the modus operandi planned to save the Italians and executed by the Government of India and the Government of Kerala are going ahead well. In few days time the highest courts in India, notwithstanding the above said clear legal provisions, will be compelled to acquit the two Italian marines as well as permit the vessel ENRICA LEXIE to sail out of India.

    Republic of Italy should thank the Government of India and the Government of Kerala State for foresaking its own citizens and making a scarecrow of its own judicial system. Where is the Gift?

    (Author is a Lecturer for Law of the Sea and Maritime Law, National University for Advanced Legal Studies, Kochi.)

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  2. Guptan Veemboor says:

    Mr.Jon Bellish, I have been following the Enrica Lexie case right from the beginning through news on internet. Only today while searching I got your post.
    You have given that ” The words “terror,” “terrorist,” or “terrorism” do not appear at all in the operative clauses of the SUA Convention, nor do they appear in any portion of India’s SUA Act. Thus Mr. Matthew’s argument that legal classification as a terrorist is a prerequisite to be charged under the SUA Act appears at odds with the text of the SUA Act itself and the Convention upon which it is based.”
    Sir, the SUA Act was made to deal with terrorism and piracy which has become very rampant for these last thirty or forty years. Hence is it necessary to specify that it is for dealing with terrorism. For other crimes there laws already existing.
    Here when the Italian Marines shot at the boat St.Antony they had no intention of terrorism in their act. It is plain murder at sea. It was killing due to misunderstanding and it should be dealt with as such.
    I was just thinking. A carpenters chisel is for cutting wood and shaping it into required objects. You can use for cutting vegetable also. But you don’t use it for that purpose. Similarly SUA Act is for dealing with terrorism and hence it is used for dealing with terrorism and not for other criminal activities which are obviously not an act of terrorism.
    Which country should try the marines should be decided as per international conventions for a murder at sea. Even though most of my fellow Indians feel that India has jurisdiction to try the case, I am of the opinion it is Italy which has the jurisdiction. The marines were on an Italian ship and from that ship the shots were fired. It is the act which is to be punished and not the result. So Italy should try the case. I am more convinced of my thinking is right because Mr.Haren Rawal, Additional Solicitor General appearing on behalf of the Government of India that India has no jurisdiction for which he was castigated and the charge of representing Centre was entrusted to another. Mr.Rawal could not have told this to the court unless has gone through the law and was convinced of the fact.
    Guptan Veemboor

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    • Jon Bellish says:

      I agree. That is why I thought it was strange that the judge asserted that the Italians were terrorists (clearly, they are not), rather than simply asserting that terrorism is not a prerequisite.

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  3. Shyam Kumar’s comment on Jon Bellish.

    SKsays– “Sec. 3 of the Indian Penal Code reads as follows:
    Sec. 3: Punishment for offences committed beyond but which by law may be tried within India: Any person liable by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India. (emphasis supplied).
    VKG—It is applicable to ‘ Any person liable by an Indian law’. The Marines were in the contiguous zone on an Italian flagged ship and hence not liable by an Indian law. It is applicable only if ‘the marines were on Indian soil’. If they were on Indian soil only then they are subjected to Indian laws.

    SK:——-Section 3 of the Penal Code reproduced above has the following attributes:
    (a) It applies to all persons including foreigners and is not confined to citizens of India.
    (b) The said section presupposes the existence of an Indian law under which a person can be made liable for an offence committed beyond India, i.e., beyond the territorial limits of India.
    (c) If such an Indian law exists, then the person liable under that law is to be dealt with according to the provisions of the Indian Penal Code for such offence committed beyond India.
    (d) While being so dealt with under the Indian Penal Code, a presumption follows that the offence had been committed within India.

    VKG:—-a) It applies to all persons including foreigners……………………………. Provided the foreigner was in Indian soil or where Indian law applies and it was not the case.
    b,c,d ) As for (a) as the law is not valid for a foreigner on a foreign soil or a place equivalent to foreign soil. The ship under Italian flag in contiguous zone is same as Italy.

    SK…..
    Section 3 applies to all persons including non-citizens. Hence the Captain of the vessel as well as the two Italian Marines who are foreign citizens, presently in India are squarely covered by the said provision.
    VKG ……As stated above the Section 3 of IPC is not applicable to the Italian Marines. They were brought to India by force or false pretenses and that act itself amounts to an illegal act amounting to kidnapping.
    ADMIRALTY OFFENCES (COLONIAL) ACT.
    First of all Admiralty Offences (Colonial ) Act was made by British Crown to deal with its innumerable colonies in its heyday. It is accepted that Indian Constitution has accepted it but intent was to rule the colonies. In the Indian Republic its relevance is not a true thing though we can bring it at our convenience.
    SK….The Admiralty Offences (Colonial) Act, 1849 is a statute which envisages extraterritorial operation and specifically deals with and empowers authorities to take legal action with respect to admiralty offences or offences committed upon the sea i.e., beyond the territorial waters of India. The said Act is protected vide Art. 372 of the Constitution of India and continues to have extra territorial effect pursuant to Explanation II to Art. 372.
    Sec. 3 of the Admiralty Offences (Colonial) Act, 1849 reads as follows:
    Provision, 7c., where death in the colony &c., follows from injuries inflicted on the sea, &c.,-
    Where any person shall die in any colony of any stroke, poisoning, or hurt, such person having been feloniously stricken, poisoned, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or at any place out of such colony, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory before the fact to murder, or after the fact to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished, in such colony, in the same manner and in all respects its if such offence had been wholly committed in that colony; and if any person in any colony shall be charged with any such offence as aforesaid in respect of the death of any person who, having been feloniously stricken, poisoned, or otherwise hurt, shall have died of such stroke, poisoning, or hurt upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, such offence shall be held for the purpose of this Act to have been wholly committed upon the sea.
    The above provision clearly and unequivocally empowers the authorities in India to deal with offences committed outside India which during the time of the enactment was referred to as a ‘Colony’. Mark the words ‘or at any place out of such colony’ as it specifically empowers the authorities to deal with, inquire into, try, determine and punish the offence in the same manner and respect as if it has been committed wholly in India. Thereby the Indian Authorities are empowered to invoke Admiralty Offences (Colonial) Act, 1849 over and above the IPC and CrPC in the case of ENRICA LEXIE.
    VKG…….What is the relevance of this Act in this case. The act which was made at a time India was a colony of Britain is applicable to India as an independent Republic. India has its own power to deal with such offences enumerated in the above paragraphs. But this act does not give extra territorial powers on the colony or India.
    SK…. In February 2003 fifteen Indonesian pirates who had boarded a Japanese ship named Alondra Rainbow were successfully prosecuted and convicted in Mumbai, India invoking inter alia the provisions Admiralty Offences (Colonial) Act, 1849. All pirates were sentenced to seven years of rigorous imprisonment with a fine of Rs.3000 for each crew member, in default of payment of fine, to suffer further rigorous imprisonment for two months.
    VKG….In High Seas when a piracy occurs ships in the vicinity goes to help the victim ship. Which ever first ship reaches can take over the command. On that basis that country under whose flag the ship reached the spot and rescued the affected ship and caught the pirates have authority to deal with the pirates. In this case Indonesia did not have any objections for the outlaws from their country being tried by India. That case has no similarity to the present Enrica case.
    Suppression of Unlawful Activities Act.
    SK……
    The Captain of the Vessel Enrica Lexie and the two Italian Marines are also liable to be prosecuted under the SUA Act, 2002. The SUA Act, 2002 vide S.1(2) extends to the Territorial Waters, the Continental Shelf, the Exclusive Economic Zone and any other Maritime Zone of India within the meaning of the Maritime Zones Act, 1976. Thus the jurisdiction of Indian authorities stand extended beyond the territorial waters of India up to the edge of the exclusive economic zone which is 200 nautical miles from the baseline. Offences within the said zone are thereby punishable under the SUA Act.
    The SUA Act defines the term ‘Ship’ in S.2(h) as to include any floating craft. Thus both Enrica Lexie and the fishing boat St.Antony are ships/floating crafts and are thereby amenable to the SUA Act. Chapter II of the SUA Act lists the various offences under it. It lays down the punishment for such offences as well. Thereby it can be seen that it is a complete code in itself. Section 3 (1) (a), (b), (c), Section 3 (1) (g) (i) (iv) and (v) and Sec. 3 (7) and (8) (c) of Chapter II of the SUA Act, 2002 are specifically relevant.
    Relevant portions of Section 3 (1) (a), (b) and (c) of the SUA Act, 2002 reads as follows:
    Sec. 3 Offences against ship, fixed platform, cargo of a ship, maritime navigational facilities, etc.-
    (1) Whoever unlawfully and intentionally-
    (a) commits an act of violence against a person on board a fixed platform or a ship which is likely to endanger the safety of the fixed platform or, as the case may be, safe navigation of the ship shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine;
    (b) destroys a fixed platform or a ship or causes damage to a fixed platform or a ship or cargo of the ship in such manner which is likely to endanger the safety of such platform or safe navigation of such ship shall be punished with imprisonment for life;
    (c) seizes or exercises control over a fixed platform or a ship by force or threatens or in any other form intimidates shall be punished with imprisonment for life;
    Section 3 (1) (g) (i) (iv) and (v) of the SUA Act, 2002 reads as follows:
    (g) in the course of commission of or in attempt to commit, any of the offences specified in … clauses (a) to (f) in connection with a ship-
    (i) causes death to any person shall be punished with death;
    (ii) ……;
    (iii) ……;
    (iv) seizes or threatens a person shall be punished with imprisonment for a term which may extend to ten years; and
    (v) threatens to endanger a ship … shall be punished with imprisonment for a term which may extend to two years.
    (emphasis supplied)
    Relevant portions of Sec. 3 (7) and (8) ( c ) of the of the SUA Act, 2002 reads as follows:
    Sec. 3 (7) : Subject to the provisions of sub- section (8), where an offence under sub- section (1) is committed outside India, the person committing such offence may be dealt with in respect thereof as if such offence had been committed at any place within India at which he may be found.
    Sec. 3 (8) (c) : No court shall take cognizance of an offence punishable under this section which is committed outside India unless-
    (a) …;
    (b) …; or
    (c) the alleged offender is a citizen of India or is on a fixed platform or on board a ship in relation to which such offence is committed when it enters the territorial waters of India or is found in India. (emphasis supplied)
    Further a reading of Sec. 13 of the SUA Act 2002 which provides for presumption of offences under sec. 3 should alarm any lawyer appearing for an accused charged under SUA. It reads as follows:
    Thus the burden shifts on to the accused making their criminal trial a very arduous one.

    VKG…..SUA Act was specifically made to deal with terrorism in High Seas. Whether it is specified that it applies to terrorism exclusively or not is immaterial. For normal criminal activities every country has its own criminal laws and International bodies have common laws which most of the countries have ratified. It is to be applied when any terrorist activities take place. When the LeT team with Kasab and others came on a boat to Bombay it was a sea-borne terrorist act. But when the Italian Marines shoots at a boat under the mistaken belief that it was a pirate boat and kills two fishermen it is hardly an act of terrorism. If one applies SUA Act to this it will be an act like misuse of TADA or POTA to deal with ordinary crimes. So this SUA Act cannot be applied.

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