THE HUMAN FACE OF MARINE PIRACY

This presentation was made at an International Seminar on Piracy at Karachi in Feb 2012. Courtesy-proceedings issued by Fazaldad Human Rights Institute.

THE ALANDRO RAINBOW CASE

At the outset let me place on record, my gratitude, to the organizers of this seminar for making it possible for me to be sharing some thoughts with this audience. It has taken many months of diligent and sincere communications between us to cross all the obstacles to obtain the necessary clearance to travel to Karachi. I am honoured and delighted to be with you.

Since the sub-continent provides a fair share of seafarers to the shipping industry, it is but natural that we will continue to have some of our crew in ships that are hijacked. The threat is common to all of us and it is imperative that we join hands to fight together since it cuts across our existing disagreements on bilateral and historical antagonism. It is in this context that we need to revisit the Alandro Rainbow case to draw lessons that may assist the international community to find amicable solutions to the scourge of piracy at sea. Let me briefly outline the facts related to the actual act of piracy, circumstances leading to the capture of the hi-jacked ship by the Indian Maritime forces and finally lessons learnt or unlearnt as perceived by us.

This is a classical case of good coordination and cooperation among agencies such as, the Piracy reporting centre at KL, alert standards of watch keeping by ships in receipt of warnings, quick reaction by Maritime forces and clear intent to pursue the pirated vessel and capture her and finally the successful prosecution of the captured crew by courts of law in India.

On 22oct 99, Alandro Rainbow,a Japanese ship of 7762 tons, registered in Panama with a crew of 15 Philipinos and 2 Japanese was hijacked within two and half hours of leaving Kuala Tanjung in Indonesia enroute to Miike in Japan.The crew was blind folded and transferred to a barge MV Sanho and thereafter set afloat in a life raft. Fortunately the crew was rescued by a Thai trawler and the Japanese Master promptly registered a case. Consequently IMB/PRC was informed and a bulletin to look out for Alandro Rainbow was put out on 27 oct. There is also a report that Thomas Cooper an insurance company offered a reward of US $ 200000; the cargo consisting of Aluminium Ingots was worth a Billion+ Yen. What was not known at this stage was that the ship was being converted into a Phantom vessel, which was renamed as Mega Rama. Half the cargo had been disembarked and the ship had set sail to the Persian Gulf.

At the south western tip of India, MV AlShuhada,a Kuwaiti  motor vessel sighted MV Mega Rama, on 13 Nov and an alert watch keeper found  considerable resemblance with Alandro Rainbow and despite the new name on display, he promptly reported the matter to the PRC. An equally alert Coast Guard of India decided to intercept the vessel and check its credentials.

It was CG vessel Tarabhai a small inshore patrol vessel which closed in and thus commenced a chase on 14 Nov. Mega Rama neither responded nor cared to establish radio contact, while increasing speed and altering due west. A CG Dornier aircraft joined at first light and flew across the bows of the ship to reconfirm that the new name was indeed painted over. By then Lloyds records had also confirmed that the ship called Mega Rama did not exist on the record books of ships in commission.

It is at this stage of the operations that the navy decided to support the efforts of the Coast Guard. Since I was the head of operations at that time, I can with certainty, recall the factors that were considered before arriving at the decision. It was established beyond doubt that the ship being pursued was indeed Alandro Rainbow. The then Prime Minister of Japan had made a statement in their parliament on the loss of the ship and the desire of the people of Japan to repossess the ship if possible. The interpretation of existing Maritime laws and specifically articles 100 to 107 of UNCLOS were carefully considered. It was also recalled that the original Regulations Indian Navy before the recent amendments, had very specific instructions to the Commanding officer of Indian War ships to aggressively pursue pirates at sea and that insufficient action in such pursuits may invite disciplinary action against the Commanding officer.

It was also envisaged that should firing be necessitated in self defence or to persuade the ship to stop, it would necessitate graduated use of minimum force to achieve the end result. The Commanding officer should not be burdened with restrictions and that laying down clear ROE’s was the task of higher echelons of the navy.

Finally the past experience of thwarting a coup at Maldives in 1988 at the request of the then President of Male and the subsequent engagement of MV Progress Light, which resulted in rescuing the hostages and arresting the rebels had a few critical lessons, which needed to be implemented. It was with these considerations that the CNS took the decision of deploying the nearest Missile vessel and later a frigate and a destroyer, the latter to prevent scuttling of the hi-jacked vessel through a large contingent of damage control teams available in larger vessels.

Missile vessel Prahar who reached the scene of action on 15 Nov after sun set, used all the available means of communication, illuminated the vessel in question, circled her at close quarters, when the pirates tried to ram Prahar and only when all efforts failed did he start with small caliber weapon firing across the bows of Mega Rama, aka,Alandro Rainbow.

By 16 Nov it was clear that the pirates were hardened criminals with adequate knowledge of ship management skills to delay or prevent the capture of their ship. The use of the highest caliber gun system was brought into action and it needed only two shots in the vicinity of the bridge and funnel to abruptly stop the pirates. White flags were hoisted by the pirates but they had also initiated the process of scuttling the vessel. The boarding parties had two objectives, to capture the pirates and prevent the sinking of the vessel. Both having been achieved the ship was towed into Mumbai harbour by the CG on 16 Nov.

Within a period of three months thereafter, the pirated vessel with half the cargo was returned to the rightful owner. The main battle was to follow in the courts of Mumbai.

The weaknesses in existing national legislation and laws and their alignment with evolving International maritime laws, conventions/agreements and International customs were huge impediments in courts of law. Thanks to the presence of the old Admiralty courts and processes which fortuitously remained in force, the court was able to sentence and impose fine/penalties on the offenders. There were many issues of jurisdiction, identification of offenders etc which later came to light at the higher courts of law, but then the seven year penalty had almost been completed by the pirates. Also the SUA convention had not been ratified at that point in time. The legal frame work and legislation to be worked by Parliament are matters of a detailed study by legal luminaries.

Let us briefly examine some interesting findings, which are my personal thoughts in retrospection and introspection.

Firstly, Phantom ship operations which involves pirating, renaming/repainting, disposal of illegitimately acquired cargo, use of poorly regulated ports to acquire legitimate charters,inter-alia, need a lot of white collar support from shore authorities, money launderers, lawyers and the whole gamut of well qualified and authorized phantom crew to run and manage the ship. How is it that the international community and commercial/UN led initiatives have not been able to generate cooperative measures to nail them down? It is like Somalian piracy, a lucrative multi-Billion dollar industry which is convenient to all stake holders. Like tax evasion agreements could there be bilateral or multi- lateral agreements among nations?

Secondly, sharing of information and diligent patrolling among littoral nations along with time shared presence of war ships for quick and seamless intervention is a need that merits attention. India and Pakistan can work at sea without prejudice to their disagreement on ongoing political issues.
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Thirdly, in an increasingly globally net worked environment, is it not possible to 
maintain a centralized record of qualified Merchant marine officers and their whereabouts to locate those that sell their souls to indulge in piracy related activities? It would provide instant information of location and details of unemployed but 
.qualified crew who have the inclination and potential to support illegal trade

Rules of Engagement are essential to enable warship Captains to defend and use graduated and bare necessary offensive action to thwart and deter piracy. The Governments such as the Indian Govt were able to do so which led to effective neutralization of mother ships and remarkable decrease in high seas deployment of pirates.

Fourthly, it is time to create a cadre of specialists in Maritime law and nurture them by providing sufficient avenues of employment in the industry and state led initiatives. If they have a merchant marine /navy/CG background so much the better. I was delighted to meet one in Karachi, who having served the Navy is a successful legal luminary in maritime law.

I thank you for your attention.

THIS ARMY BASHING MUST STOP

The edited version of this  article was carried by IANS today 01 Nov 12 under the title "This uninformed military bashing must stop"

DEJA VU -THIS UNINFORMED ARMY BASHING MUST STOP

The print and electronic media have been eagerly lapping up some half truths ostensibly sourced from an Audit report of  Defence Account circulated within the MOD. It is a matter of great concern that every file noting/report from various organs of the Government is finding its way to the electronic and print media even without an RTI application. If many such papers are up for sale  the matter is even more serious, for the buyer is as guilty as the seller.

Quite obviously, the system of procurement whether by the Ministry or through recently delegated powers to service head quarters, has to be well understood before statements such as  "Generals have caused a loss of 100 crores..." is made by editorials of reputed media. Equally a television debate cannot establish facts, as most anchors interrupt the views of experts and juxtapose their own perceived views, thus leaving the viewer even more confused.

The Defence Ministers in most countries would have intervened with a press statement from MOD explaining the process of such an audit and the accuracy and finality of such reports. That would have not only clarified the veracity of information selectively placed in the public domain but would have eased the pressure on the Armed Forces to go public on facts and figures. Downward loyalty of the RM cannot be limited only to MOD. Surely he also needs to back the Armed Forces who are placed under him.

Without taxing the reader on technicalities, let me explain the process. These are facts not meant to defend the Army in this case but to place the subject in perspective for the reader.

Having established or reduced the office of Service Headquarters to Attached office status (now notionally designated as the IHQs) in the early 1950's,the MOD retained all controls of financial powers. The Chiefs did not enjoy delegated financial powers to even manage the day to day revenue expenditure, leave alone Capital expenditure for acquisition of assets.  The Navy was the first to suggest, discuss and get sanctions for New Management Strategy(NMS) commencing 1991. At that stage the intention was to address the first concern of unacceptable level of operational availability of ships and submarines. Delegated financial  powers to the Chief  to expedite decision making, resulted in achieving much higher readiness levels. Under the earlier dispensation, ships needing urgent or routine repairs and maintenance continued to languish along side, while MOD and MOD Finance raised objection after objections on modalities of repair. The operational and opportunity cost of delayed sanctions from the Ministry were so great that nearly half the fleet was awaiting some sanction or the other to be rendered operationally  fit for service.

It was not without years of discussion i.e.in 1997 and later in 2006, that the delegated powers with all the checks and balances were issued as Navy Instructions, thus making the Chief responsible for running the Navy through revenue budget delegation. Later these powers were grudgingly enhanced with more restrictions but were limited only to  the revenue expenditure and not to the Capital.

Not many would know that delegated powers for Capital expenditure were progressively enhanced to Rs 50 crores only from 2004 onwards and is now proposed to be enhanced to Rs 100 crores? Given that the annual defence budget has exceeded Rs. One Lac crores, over the years, every committee appointed by the Govt has forcefully sought delegation of adequate powers to the Armed Forces so that they are made responsible and accountable for maintaining  optimum readiness levels.

During this whole sorry episode Heads of large Government controlled departments such as Railways for instance, were allowed to exercise full financial powers commensurate with their operational needs.

Since the Navy, being the smallest of the three, had initiated ,documented and steered a successful pilot project, delegation of powers for other services was progressed on this model. MOD had ensured that at no stage was it possible for the Military authority, irrespective of rank, to sanction any expenditure without the concurrence of Integrated Financial Advisor,  barring few petty items of limited value. These officers were drawn from department of defence accounts. Needless to say the necessity to place so many of them in quick succession as advisors, created an avalanche of vacancies for promotion to this specific cadre-which could be a subject for another discussion.

The major weakness in the system was and continues to be the mindset of the IFA. Instead of assuming the role of an Advisor(which is not a part of his/her training) the IFA acts as an auditor for pre-acquisition formalities-the post event audit notwithstanding. More over there are not enough officers of the right seniority and experience to fill these increasing billets.

Clearly, no operational Commander under this dispensation would over rule the objections raised by IFA, since the latter forms an integral  part of processing/approving every step of procurement under delegated powers. It is ironical that the auditors who carry out post- audit at the centre, are from the very same cadre as those fulfilling  IFA functions in the field. Hence we have not heard of a single query raised on how the IFA allowed the process of procurement, if it was faulty. Such a system is not anchored on powers delegated to individual Commanders but to the system as a whole, with built in checks and balances.

Another interesting fact is that orders for delegation of powers do not empower the field commander to review the performance of the IFA whose final reviewing authority is  CGDA. Also if there is a conflict of interest between the delegated authority and the Financial Advisor, the matter is to be referred to Delhi. There is no situation in which the IFA who is involved in the entire process of procurement can be intimidated or arm twisted to acquiescence. If there is a faulty acquisition in procedural terms, the IFA is a party to it. Hence post- audit of the process should in the first instance ask for an explanation of the IFA.

This essay would be incomplete without reference to extraordinary delays in equipping the Armed forces with platforms,equipment,ammunition and ordnance due to the convoluted procedures of Defence Procurement which are handled entirely by MOD. AJT took about 20 years of negotiations and discussions, helicopters and guns are outdated. These need no elaboration as they are in the public domain. The cumulative shortages are so severe that most Commanders who have now been given limited powers of procurement, opt to procure a small numbers of critical operational necessities. Bullet proof vests are a case in point. Should a soldier continue to sacrifice his life  because there is protracted discussions on file between the Attached office and MOD? Most field commanders who feel for their troops would seek to provide what they can with what they have. The IFA knows it and hence he is required to advise and prevent procedural violations. If such violations are indeed discovered later, by an auditor who has neither the knowledge nor the responsibility to prevent loss of life, should it not be the responsibility of the IFA to explain the nature of such procurement? 

Lastly, most such observations made by the auditor is settled after explanations are obtained as per procedures. In the meanwhile, imagine the damage done by innuendos and television debates placing the blame squarely on Field Commanders .

Will the media carry an apology later? Perhaps it would be easier to obtain statistics from honest vendors(who prefer anonymity) who, reportedly, have had to and continue to bribe office bearers of Controller of Defence Accounts of all three services, just  to get their legitimate payments released with least delay and harassment.

Vice Admiral(retd.) Suresh Bangara, former FOC-in-C Southern Naval Command had held appointments of Director Naval Plans and later Assistant Chief of Naval Staff(Policy and Plans) when NMS was steered by the Navy.