Tag Archive | "law of the sea"

Putting political convenience aside, pirates are simply not terrorists

While running through my piracy news roundup yesterday morning, I came across this piece by Robert Young Pelton of Somalia Report. In it, Pelton criticizes a report by Australia’s Lowy Institute that deals with the use of privately contracted armed security personnel (PCASP).

I took particular interest in a small tangent within Pelton’s piece that reflects an incorrect sentiment that I have seen repeated many times by non-attorneys (and even by some attorneys): that modern pirates should be considered terrorists.

As Pelton’s Somalia Report piece primarily concerns PCASP, the terrorism issue is only mentioned in a passing parenthetical:

“Pirates are criminals, (never terrorists because that would prevent the payment of ransoms) so it makes sense that a direct response by putting armed guards on ships was the most logical and so far, the most effective response to the pirate attacks.”

From this statement, I gather that Mr. Pelton is of the view that a key reason that the global anti-terrorism network has not been brought to bear against Somali pirates is that such an arrangement would force states to “negotiate with terrorists” once the pirates have seized the vessel and taken hostages. He appears to lament this fact. A similar view has been expressed by former U.S. Ambassador to the United Nations John Bolton and others who argue that relaxed rules concerning due process and state sovereignty as they are applied to terrorists would make the piracy fight a much easier one to win.

Are they terrorists? Certainly not.
(EUNAVFOR)

The oft-expressed desire to equate pirates with terrorists likely stems from several superficial similarities between the two groups. First, as Ambassador Bolton points out, “the same crippling evidentiary and procedural constraints” apply to both terrorists and pirates. Also, both groups consist of non-state actors operating in a truly international fashion to the detriment of the broader international community. Finally, both groups tend to base their operations in the Middle East/North Africa region.

Yet international law is clear as to the respective motives necessary to make one a terrorist or a pirate, and the facts on the ground suggest that, no matter how convenient it may be from a policy standpoint, pirates are not terrorists.

Judge Antonio Cassese, presiding over the Appeals Chamber at Special Tribunal for Lebanon, announced last year that a definition of terrorism has emerged under customary international law. Included in this definition is the requirement that the terrorist has “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.”

Conversely, it is well-documented that, although piratical intent is not limited to the desire to rob, for an act to be considered piratical, it must be committed for private ends. This requirement is explicitly laid out in UNCLOS art. 101, as well as its predecessor, 1958 Geneva Convention on the High Seas.

A terrorist’s intent must be to incite mass fear or coerce a government, both purely political motives; a pirate’s motive is strictly limited to making money.

In a smart piece on piracy-law.com couching this definitional issue in terms of a potential defense available to alleged pirates, Roger Phillips rightly notes that, although in theory it is possible to have both political and pecuniary motives, the political motive appears absent in Somali pirates, who choose not to attack well-protected ships or kill hostages simply because it would be less profitable to do so. It seems like a stretch to argue that the pirates’ modus operandi of attacking a privately-owned ship in the middle of the ocean is somehow carried out in order to coerce a government or frighten the public at large by placing them in danger.

Though Roger covered it thoroughly, this definitional point bears repeating because the terrorist theme has gained so much traction in non-legal commentary on the issue of maritime piracy. As tempting as it is to “talk tough” about pirates and the international community’s response to piracy by evoking the specter of terrorism, there is very little merit to the claim that the two terms can, at least presently, be used interchangeably to describe Somali pirates or their West African counterparts.

Respect for the rule of law – apart from being perennial advice given by developed countries to countries like Somalia – requires taking the law as it is written (or trying to change it through legitimate processes) rather than molding it to fit one’s immediate policy preferences. Unless evidence of pirates taking a less profitable course in favor of a strategy with large political payoff emerges – or the definitions of piracy and/or terrorism change – the “pirates as terrorists” slogan will continue to be just that – a slogan.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter.

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Somali Piracy

Piracy Continues Unabated

Somali Piracy

Somali Piracy

The surge of piracy attacks worldwide and their increasing threat to international shipping are indeed alarming.  The Piracy Reporting Center of the International Maritime Bureau (IMB), an independent arm of the International Chamber of Commerce, reports that incidents of piracy and robbery at sea reached 445 in 2010, compared with 400 in 2009, while there were 293 attacks in 2008, and 263 and 239 for the years 2007 and 2006, respectively.  In the first five months of 2011 there have been 273 such incidents — almost 50 percent more than in 2010.  92 percent of all hijackings in 2010 were off the coast of Somalia.

The global economic cost of maritime piracy is estimated at between $7-12 billion per year, according to a December 2010 report by the One Earth Future Foundation.  The report found that the ransoms paid to Somali pirates had increased from an average of $150,000 in 2005 to $5.4 million in 2010.  Pirates have killed several hostages when ransoms were not paid.

The international community has responded to this growing threat of piracy, especially in the Gulf of Aden and off the Somali coast, by undertaking naval operations, coordinated by NATO, the EU, and a coalition led by the United States, in addition to several countries operating on their own.  It has been suggested to arm crew members, but this has not won favor from the shipping companies; perhaps it is more feasible to use private security companies, as is being done in some cases.  Notwithstanding all these efforts, the scourge of piracy continues to be a major challenge to the international community.  The major reason is that Somalia is a failed state, it has Africa’s longest coastline, spanning 3,025 miles, and its geographical location lies next to key shipping routes connecting the Red Sea and Indian Ocean.

Piracy constitutes a violation of international law, a crime that is considered a threat to all nations navigating the open seas.  In an 1820 US Supreme Court case, US v. Smith, Justice Story, writing for the Court, declared that “there is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature.”  Consequently the principle of universal jurisdiction applies to acts of piracy.  Under this principle, any nation may prosecute acts of piracy in its domestic court, no matter where these acts occurred and no matter who the perpetrator is.  Accordingly, a nation could rely on this principle to seize and prosecute Somali pirates engaged in piracy on the high seas.  However, most countries have routinely released the pirates after capturing them because of the problems associated with trying them in their own national courts — expense, lack of adequate evidence, and the feared claim of asylum on the pirates’ part.

Some national courts have begun prosecuting pirates.  Kenya has entered into several agreements with the European Union, the United States, the United Kingdom, China, and several other countries, to take custody of and prosecute pirates in its courts.  Seychelles has also been prosecuting suspected pirates in its national court.  Also, in late November 2010, the Virginia Federal District Court convicted five Somali pirates on federal piracy charges.  Some European courts, too, have considered trying Somali pirates.  Among these courts, the Dutch have taken the lead.

In addition to customary international law, two treaties are pertinent, under which a state could arrest and prosecute pirates in their national courts.  The conventions are the United Nations Law of the Sea Convention (UNCLOS) and the United Nations Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA).  UNCLOS calls upon all states to combat piracy by cooperating to the fullest extent in repressing this crime on the high seas or any other place outside the jurisdiction of any state, although only warships, military ships, or other crafts of government service are permitted to seize them.

The 1992 SUA currently has 150 state parties and is aimed at addressing concerns about violence and terrorism on the high seas.  Although it does not expressly outlaw piracy, an offense under SUA is committed if a person willingly takes part in seizing control of a ship by force or intimidation, uses violence against an individual on a ship affecting the safety of a ship, or damages a ship in such a way that it affects the ship’s safe navigation.  Attempts at these piratical actions, aiding or abetting a pirate, or threatening to commit piratical acts are also included.  The SUA Convention provides for extradition of offenders to ensure that a criminal is prosecuted even though the state in whose territory the offender is located is unwilling or unable to prosecute.  In addition, the International Tribunal for the Law of the Sea may also provide a remedy as a forum for a piracy trial.

The United Nations Security Council, acting under Chapter VII, has adopted several resolutions since 2008 to counter piracy and armed robbery at sea.  It has authorized member states to take action against pirates even in Somalia’s territorial waters and has called upon states and regional organizations to deploy naval vessels, arms and military aircraft and seize and dispose of vessels and equipment used in the commission of these crimes.  It has also called on states to criminalize piracy under their domestic laws, and to favorably consider prosecuting and imprisoning suspected pirates.

There is currently no possibility of a Somali court sitting in Somalia or in the territory of another regional state applying Somali law.  Could a regional tribunal or an international tribunal established by the Security Council under Chapter VII of the UN Charter be feasible?  The challenges of creating such an international judicial body are enormous, but it is worthwhile seriously considering this possibility.

Ved Nanda is the John Evans Distinguished University Professor, University of Denver; Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver Sturm College of Law

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The Human Cost of Piracy

The Human Cost of Somali Piracy

The Human Cost of Piracy

The Human Cost of Piracy

Seafarers face increasing violence as they transit the Gulf of Aden, the Arabian Sea, and the Indian Ocean, but they have limited legal protection or recourse from the crimes committed against them at sea. Since the resurgence of maritime piracy off the Horn of Africa in 2007, hundreds of vessels have been hijacked and thousands of seafarers taken hostage by Somalis seeking to secure lucrative ransom payments. In our analysis of the human cost of Somali piracy, we found that violence against seafarers by Somali pirates is escalating, but little is being done to openly measure and document these crimes.

 

Oceans are used by multiple stakeholders with divergent and sometimes conflicting interests. Crimes committed aboard or against vessels are subject to the laws of the flag state, however some flag states may not have the capacity or the political will to fully protect seafarers through prosecution and law enforcement. Furthermore, activities occurring on the high seas fall outside the jurisdiction of any single nation; legal protection for the oceans and those who work on them therefore require a legitimate international legal framework accompanied by domestic implementation of international obligations.

International maritime law exists under the United Nations Convention on the Law of the Sea (UNCLOS) and the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA), both of which are broadly ratified. Under UNCLOS, states have a duty to cooperate through active measures against piracy, and SUA requires parties to extradite or submit offenders to their competent authorities for prosecution. In combination, these conventions appear to require states to prosecute pirates. Despite this ostensibly robust legal regime for prosecuting pirates, few nations have actually done so. As a result, there is no effective legal deterrence to piracy, leaving pirates free to commit crimes at sea with little to no risk of detention.
In order to understand the full extent of the crimes committed by Somali pirates and the cost of those actions to seafarers, we quantified the total number of seafarers attacked or taken hostage. Our study’s findings indicate that during the course of 2010:

  • 4,185 seafarers were attacked with firearms and rocket propelled grenades
  • 342 seafarers took refuge in a reinforced security room (“citadel”) when pirates boarded, from which they were rescued by naval forces
  • 1,090 seafarers were taken hostage and held captive for an average of five months
  • 516 seafarers were used as human shields
  • As many as 488 seafarers were subjected to abuse or torture

The cost of piracy is high for seafarers. Even in the case of an “unsuccessful” attack where pirates are not able to hijack the vessel, seafarers are still exposed to weapon fire and explosives aimed directly at their place of work. If pirates board a vessel, the crew may be able to take shelter in a citadel; however, this, too, is a dangerous and traumatic experience in which the crew awaits rescue for anywhere from hours to days while pirates try to violently force their way inside. If pirates successfully capture a ship, seafarers are held against their will for months on end during which time they face physical and psychological violence from the pirates, limited access to food and water, uncertainty about their fate, and risk of death.

As Andrew Shapiro, US Assistant Secretary of State, made clear in a speech in March of 2011, “the attacks are more ruthless, more violent, and wider ranging. Hostages have been tortured and used as human shields.” However, official data is only available on the initial incident, whether it is an attack, boarding, or hijacking. This limited categorization of pirate activities undervalues the dangers and trauma faced by seafarers by limiting the description of their ordeal to “hijacking.”

One obstacle that restricts the protection of seafarers is the lack of a single, reliable source to inform seafarers and others of how seafarers are treated during captivity, and how widespread abusive tactics are amongst the various pirate gangs. Seafarers deserve to know the full extent of the risks they face when transiting pirated waters. In the words of a seafarer from the MV UBT Ocean, which was held by pirates for more than four months, during which time crewmembers were reportedly tortured and abused, “all the seafarers must be fully aware of this danger and risk in crossing the Indian Ocean.” While open source news stories and interviews provided enough information to determine the approximate number of seafarers abused or used as human shields, there is no way to independently verify if these figures represent the true extent of the abuse. Our study makes clear that the abuse is alarmingly common, but the lack of more comprehensive reporting prevents the true cost from being understood.

Developing reliable compliance with international agreements and increased protection for the victims of piracy is especially difficult because the maritime industry is fragmented by nationality at every level. Ship owner, ship manager, flag state, cargo owner, and crewmembers may all come from different countries. For example, seafarers taken hostage in 2010 came from at least 30 different countries, the majority of which were developing nations. As a result of this great diversity wherein many different actors and stakeholders bear responsibility for monitoring and protecting seafarers, no single country or group is held accountable. The end result is that seafarers as a whole do not have a central, reliable organization to turn to for legal protection.

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