By Saif Rasul Khan, Government Law College, Mumbai.
The term ‘Hot Pursuit’ refers to the urgent and direct pursuit of a criminal suspect by law enforcement officers, or by belligerents under international rules of engagement for military forces. It is termed as fresh or immediate pursuit. Such hot pursuit grants special powers to the officers in command, which otherwise they do not have. It is a doctrine that provides that the police may enter the premises where they suspect a crime has been committed without a warrant, when delay would endanger their lives or the lives of others and lead to the escape of the alleged perpetrator.
The concept of ‘hot pursuit’ is a part of the English Common law. The concept owes its origin to the doctrine of ‘distress damage feasant’. This concept granted a right to the property owner to detain animals trespassing on his land to ensure that he was compensated for the necessary loss suffered (though only during the trespass itself). In a case in 1293, it was held that a property owner could also chase after trespassing animals leaving his land and catch them if he could. In 1939, Glanville Williams described hot pursuit as “a legal fiction that treated an arrest as made at the moment when the chase began rather than when it ended, since a criminal should not be able to benefit from an attempt to escape”.[1]
Under the United States Law, hot pursuit is defined as an exigent circumstance that allows police to arrest a criminal suspect on private property without a warrant. Such arrest however, is in violation of the Fourth Amendment, which relates to ‘prohibition of unreasonable searches and seizures and requires warrant to be judicially sanctioned and supported by probable cause.’ The Hon’ble Supreme Court of US had first articulated this principle in Warden v. Hayden in the year 1967.[2] The Supreme Court had previously used the word, but in Warden Case, it unequivocally condoned this form of warrantless search. In this case, the police officer pursuing a suspected armed robber were told that he had entered a dwelling home moments before their arrival. They entered the said dwelling, searched it and seized the evidence, and then apprehended the suspect. The accused held that the warrantless search violated the Fourth Amendment. The case reached the Supreme Court; it disagreed, justifying the search. The court held that the presence of two conditions would justify hot pursuit, namely, the need to circumvent the destruction of evidence and the need to prevent loss or damage to life or property.
Under International law, the principle of hot pursuit is equivalent to the common law principles. However, the concept was independently conceived. It developed into a general custom of international relations in the early 20th century, although this principle was already a part of national legislations, for instance the British Hovering Act. The participating states at the League of Nations Codification Conference of 1930, broadly agreed on this principle. However, the proposed convention on territorial waters, in which it was included, was never ratified. It was codified as Article 23 of the Geneva Convention on the High Seas in 1958.[3] “A state has the right to pursue into the high seas and arrest a foreign vessel which has committed an offense within its waters. The hot pursuit has to commence when the offending vessel is within the national waters, territorial sea or contiguous zone of the pursuing state and must come to an end when the vessel has entered part of its own country or of a third state. The pursuit must be uninterrupted and only necessary and reasonable force may be used to effect the seizure and bringing into port of the pursuit ship.” This definition essentially reiterates the definition provided in the High Seas Convention (1958), at 23(1):
“The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State.
“Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted…. If the foreign ship is within (the 12 mile) contiguous zone…. the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.” The Geneva Convention on the High Seas was eventually folded into the United Nations Convention on the Law of the Sea. Article 111 of the latter treaty grants a coastal state the right to pursue and arrest ships escaping to international waters, as long as[4]:
- The pursuers are competent authoritiesof the state;
- They have good reason to believe that the pursued ship has violated the state’s laws or regulations;
- The pursuit begins while the pursuing ship is in the State’s internal watersor territorial waters; and
- The pursuit is continuous.
There are a number of cases where foreign agents or armies have crossed another state’s sovereign borders in pursuit of people suspected of committing crimes against the state. One eminent example is the pursuit of Pancho Villa by U.S. forces into Mexico in 1916. The manhunt was in response to a cross-border raid of New Mexico by Pancho’s “Villistas,” though the pursuit failed and Villa escaped. Another leading example was the 1960 seizure of Adolf Eichmann by Israeli agents in Argentina. Eichmann was a former high-ranking Nazi official wanted for war crimes. His capture was widely considered a violation of international law and Argentine sovereignty. Neither of the above cases involved ships on the high seas, nor did either of the states invoke the principle of ‘hot pursuit’ to justify their cross-border activities. Recently, the Indian Army conducted a strike at Myanmar on two insurgent bases in western Myanmar’s Sagaing division, across the Manipur and Nagaland sectors of the border. The Minister of State for Information and Broadcasting Rajyavardhan Singh Rathore confirmed that the Indian forces “carried out strikes on two of the militant camps, annihilating the entire camps, and have returned safely”. He pointed out that Prime Minister Modi had taken a “very bold step” and given permission to proceed for hot pursuit into Myanmar, adding that the response was a message to other countries that might be inimical to India. Meanwhile, the official Army version simply spoke of the forces having engaged two separate groups of insurgents “along the Indo-Myanmar border”, without referring to any cross-border operation. Myanmar has nevertheless, denied that any operation took place inside its country.
[1] Glanville L. Williams (1939). “The juridical basis of hot pursuit”. British Year Book of International Law 20: 83–97.
[2] Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294.
[3] Nicholas M. Poulantzas (2002), The Right of Hot Pursuit in International Law, Brill–Martinus Nijhoff
[4] Craig H. Allen (1989), “Doctrine of hot pursuit: A functional interpretation adaptable to emerging maritime law enforcement technologies and practices” (PDF), Ocean Development and International Law 20 (4): 309–341