Tag Archive | "piracy"

Sea Shepherd

The State of the Private Ends Debate

Australia’s claimed maritime domain

It has been both interesting and informative to watch the debate over the meaning of piracy’s “private ends” requirement unfold between Kevin Jon Heller and Eugene Kontorovich at Opinio Juris and The Volokh Conspiracy, respectively. Over a series of successive posts (here, here, here, here, and here), they began to home in on the real crux of the “private ends” issue, but Kevin’s latest post led that debate somewhat astray.

Kevin notes that Australia claims a 200nm EEZ off the coast of certain parts of Antarctica, has passed a law prohibiting whaling in that EEZ, and has issued an injunction against the Japanese “researchers” who in fact whale in that EEZ. He further notes that France, New Zealand, Norway, and the United Kingdom have recognized that EEZ. All of these are true facts, to be sure.

From these premises, however, Kevin concludes that Australia claims “sovereignty” over the Arctic EEZ, excluding any actions occurring therein from the common jurisdiction that all states enjoy over piracy jure gentium. This reading contracts the plain language of UNCLOS.

UNCLOS art. 58(2) states that, “[a]rticles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.” All of UNCLOS’s piracy provisions are contained in art. 100-110 and are explicitly incorporated by reference into art. 58(2). Thus there can be no question that all states have jurisdiction over acts of piracy occurring in any state’s EEZ.

Location of Japanese – Sea Shepherd conflict

More broadly, UNCLOS arts. 56 and 58 render the EEZ a zone with a specialized legal character. The coastal state has a sovereign right to regulate the natural resources in its EEZ, but the latter is otherwise treated as the high seas for the purposes of arts. 88-115 of UNCLOS. The recognition of the Australian Antarctic Territory’s EEZ has a bearing on whether Australia can criminalize the Japanese research activities occurring within 200nm of the Antarctic coastline, but it has no bearing on the issue of piracy.

This brings us back to the tougher and more pressing issue of whether the Sea Shepherds’ activities are conducted for “private ends,” as required by UNCLOS and customary international law. Initially, Eugene and Kevin’s debate focused on a “public” versus “political” dichotomy. This distinction did not fully capture the true issue at hand, taken up in Eugene’s most recent posts, as to whether the private ends question is a subjective or objective one.

If one accepts the premise that modern pirates have dual motives – a desire for remuneration coupled with some sort of political goal – a subjective inquiry into whether a pirate’s ends are public/political or private is unworkable. East African pirates want money in the form of ransoms (paid not by the hostages, but by a third party insurance company); they also want the cessation of IUU fishing and dumping. West African pirates want money in the form of oil sales (paid not by the crew, but by a third party black market buyer); they also want a policy of redistribution of oil wealth. An employee of the Sea Shepherds wants money in the form of increased donations and salary (paid not by the Japanese, but by third party donors); they also want a policy limiting Japanese research licenses and/or keeping specific Japanese vessels from using those licenses.

In all three cases, the individuals in question are motivated by personal/private as well as political/public motives. And in all three cases, different members of the groups in question value the public and private aspects of their activities differently. A Somali pirate might be a true believer in fighting fishing and dumping, and a Sea Shepherds employee might particularly need his salary to pay a debt. He certainly needs a steady stream of donations to keep his job.

If the inquiry into private ends is a subjective one, the job of courts will be to determine whether or they are in favor of the self-described political/public aim of the defendant, speculate as to the degree of sincerity with which that political/public belief is held, and then determine from those considerations alone whether a defendant is subject to universal jurisdiction or must be set free. Nationals of the countries that can afford to conduct universal jurisdiction prosecutions would benefit from this interpretation at the expense of nationals from countries whose values and traditions are more divergent.

An objective approach to the question of “private ends,” conversely, draws a bright line that respects a nation’s monopoly on the use of legitimate force and eschews the kind of vigilante justice pursued by organizations like the Sea Shepherds. Under the objective view, committing acts of violence on the high seas on behalf a government is not a crime of universal jurisdiction; doing the same thing as a vigilante is. If we are to accept that animus furandi is not a required aspect of piracy’s mens rea – and I think that we must – an objective view of private ends is the interpretation most in line with the spirit of the law, if not the text of its drafting history.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. He is also the founding editor in chief of The View From Above. You can follow him on Twitter.

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Putting political convenience aside, pirates are rarely also terrorists

A few months ago, I wrote a post entitled Putting political convenience aside, pirates are simply not terrorists.  The piece argues that calls to treat all pirates as terrorists are totally unfounded, at least from a legal perspective. This is because, under international law, terrorism and piracy are accompanied by explicitly-defined, mutually exclusive motives.

Although I am standing by my substantive argument, the story of the MV Asphalt Venture is enough – as more astute readers may have noticed – to make me recalibrate my title a bit.

The Good Ship Asphalt Venture
(MarineTraffic.com)

The Asphalt Venture is a Panamanian-flagged, Korean-owned vessel that was captured by pirates on September 28, 2010. On April 15, 2011, the pirates released eight of the Asphalt Venture’s fifteen crew members in exchange for a ransom payment, but the kept the remaining seven crew on board. Subsequently, the pirates issued a demand to the Indian government, particularly to the coastal state of Kerala, that the remaining hostages would not be released until India freed around 100 Somalis convicted of piracy and serving their sentences in India. Recently, the Asphalt Venture pirates have added a $5 million ransom to their list of demands of the Indian government. Old title notwithstanding, these pirates indeed became terrorists.

As I explained in my earlier post, terrorism is characterized by a desire to either incite fear among the general public or to otherwise coerce a government. Conversely, piracy must be committed with the hopes of making money. Thus, where an individual takes hostages on the high seas in hopes of a ransom from a private entity, he is a pirate. Where he takes hostages on the high seas in hopes of shaping the behavior of a government, he is a terrorist.

Pirates are not to be trusted.
(IBN Live)

Those who took the Asphalt Venture managed to be both. From September 28, 2010, to April 15, 2011, they were merely pirates, only interested in money moving from one private party to another. But the moment that the pirates engaged the Indian government, actively seeking to affect its behavior, those pirates also became terrorists.

Still, the case of the Asphalt Venture is best seen as an exception that proves the rule. Governments are famous for their refusal to pay ransoms, and pirates generally look to shipping companies and their insurers as the primary source of ransoms. Even with the Asphalt Venture itself, the pirates turned to the insurance company first, received their ransom, and only then did they make non-pecuniary demands of the Indian government.

I ended my last terrorism-related piece by noting that if “pirates tak[e] a less profitable course in favor of a strategy with large political payoff,” the terrorist-pirate distinction would come into play. This is exactly what has happened in the case of the MV Asphalt Venture. In abandoning their private ends in favor of increased political pressure, those who took the Asphalt Venture did not shed the moniker “pirate,” but they certainly gained the additional, arguably even less appealing label, of “terrorist.”

In the end, however, we should continue to be mindful that nothing short of actively pressuring a government to either take or refrain from a certain action can result in an accurate branding with the scarlet “T.” Looking at a single discrete incident to determine an individual’s motives and classify him as a pirate, terrorist, or both is one thing; seeking to apply the blanket term, “terrorist” to all pirates for political convenience is quite another.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

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Critical Analysis: Global Piracy Still a Major Problem

Nigerian gangs rock West African waters. (Radio Netherlands Worldwide)

News of global piracy has faded into the background of the international arena for some, but many countries are still dealing with it. While an international maritime anti-fraud agency has reported a 54 percent reduction in piracy attacks off the Somali coast, recent attacks show that piracy is still a major global problem. The same anti-fraud agency that reported the reduction, the International Maritime Bureau (IMB), also reported that piracy continues to cost global trade up to 12 billion dollars annually. Furthermore, the threat has increased in areas that once had relatively low levels of pirate attacks.

Attacks have occurred as recently as this past week. On Monday, October 15, Nigerian pirates attacked a French cargo vessel bound for the Nigerian port of Onne. While the cargo vessel safely docked at the port, authorities learned that the pirates had actually kidnapped six Russians and one Estonian. Nigerian Special Forces are tirelessly working with Russia and Estonia to locate the kidnapped crewmembers, although their whereabouts remain unknown.

This latest attack near the Niger Delta is an example of an alarming trend of increased piracy in West Africa. While there were only 25 incidents of piracy reported in the region last year, 32 incidents of piracy had already been reported by this past July. There has also been an increased level of violence along with the increased number of attacks. Guns were reported in at least 20 of the 32 incidents, and two have been killed as a result of these attacks. Many of these attacks are also occurring at greater distances from the coast, suggesting the use of more sophisticated vessels in perpetrating these attacks.

Somali piracy also remains a problem. According to Pottengal Mukundan, Director of the IMB, “Somali pirate attacks cover a vast area, from the Southern Red Sea, Gulf of Aden, and Gulf of Oman to the Arabian Sea and Somali Basin, threatening all shipping routes in the northwest Indian Ocean.” Also, as of June 2012, Somali pirates still held a significant number of crewmembers and vessels hostage. Although, as mentioned above, there has been a decline in the number of Somali pirate attacks from last year, the level of violence has not decreased. In March, for example, Somali pirates captured a Taiwanese fishing boat in the waters of the Seychelles Islands and killed the Taiwanese captain two days later. These Somali pirates are still holding the crewmembers of this vessel hostage.

Despite the increase in violence and attacks in certain regions, there has been much progress in the global effort against piracy. More nations are beginning to prosecute pirates, and military and naval efforts against pirates have significantly increased. Recently, a Kenyan Court of Appeals overturned a decision precluding the trial of Somali pirates in Kenya. A judge had previously ruled that Kenya lacked jurisdiction; however, the Court ruled that every State has an interest to try crimes such as piracy. Germany also convicted ten Somali pirates on October 19, after an almost two-year long trial, for seizing a freighter. Furthermore, efforts to locate and stop piracy have increased beyond NATO and EU-led efforts, with countries such as the United States and France increasing enforcement and surveillance.

 Bailey Woods is a 2L and a staff editor on the Denver Journal of International Law and Policy

 

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After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Honorable Mr. Justice David K. Maraga
(Kenyan Law Reports)

The Court of Appeal decision overturns a ruling from the High Court of Mombasa that concluded, as noted by Roger on this blog, that “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Rather than summarizing the lower court’s opinion, I will simply direct readers to Roger’s excellent analysis of that case.

On appeal, Justice David Maraga stated that the High Court erred by, 1) “subordinating Section 69 of the Penal Code to Section 5”; 2) misinterpreting Sections 369 and 371 of the Merchant Shipping Act of 2009, and; 3) “fail[ing] to appreciate the applicability of the doctrine of universal jurisdiction.”

With regards to the first ground of error, the Court Appeals took issue with the High Court’s interpretation of Section 5 of the Penal Code and its relationship to Section 69. Section 5 states that “The jurisdiction of the courts of Kenya…extends to every place within Kenya, including territorial waters.” The High Court characterized Section 5 as the “defining” Kenyan jurisdictional provision and concluded that Section 69, criminalizing piracy on the high seas, was “void, ab inicio.

Justice Maraga differed with the High Court’s position and held that “there is no conflict or gradation between [Sections 5 and 69].” He noted that Section 5 is part of Chapter 3 of the penal code, entitled “Territorial Application of the Code,” while Section 69 is contained in Chapter 8, “Offences affecting Relations with Foreign States and External Tranquility.” In short, Section 5 concerns itself with the territorial jurisdiction of Kenyan Courts and Section 69 deals with extraterritorial offenses. If anything, concluded Justice Maraga:

“on the established principle of statutory interpretation that in event of inconsistency in statutory provisions the “later in time” prevails, it is Section 69 [passed in 1967] which should supersede Section 5 [passed in 1930] but there is no warrant for that as there is no conflict between the two sections.”

The second basis for overturning the High Court’s ruling arises out of the 2009 repeal of Section 69 of the Penal Code and its replacement with Section 369 of the Merchant Shipping Act. Below, the High Court suggested that repealing Section 69 took the crime of piracy jure gentium off the books. However, Section 369 Merchant Shipping Act, the article replacing Section 69, closely tracks UNCLOS article 101’s definition of piracy under international law. Accordingly, although the Merchant Shipping Act does not include the Latin phrase “jure gentium,” the crime of piracy under international law, according to the Court of Appeal, survived the statutory change.

MV Courier, the pirated ship at issue in Hashi
(ShipSpotting.com)

In the alternative, Justice Maraga pointed to Section 23(3) of the Interpretation and General Provisions Act, which states that in the case of a law being repealed mid-proceeding, that proceeding shall move forward “as if the repealing written law had not been made.” Because the act in question was allegedly committed on March 3, 2009 and Section 69 was not repealed until September 1, 2009, the above-mentioned interpretive provision would apply in this case.

The final issue under consideration was the broader question of whether Kenya was authorized under international law to try piracy cases where the act in question was committed outside Kenya’s territorial jurisdiction by perpetrators and against victims who are not Kenyan nationals.

Justice Maraga responded by noting that piracy was a crime of universal jurisdiction and recounting Kenya’s participation in and adoption of UNSCR 1918 in April, 2012. This resolution “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected…pirates apprehended off the coast of Somalia…” Ultimately, Justice Maraga concluded that:

the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

This decision should be welcomed by the international community, especially those involved in the prosecution and detention of suspected pirates. Most immediately, Hashi allows for five separate piracy cases brought under Section 69 of the Kenyan Penal Code to move forward, clearing up a two-year backlog. More importantly, however, the Court of Appeal’s unequivocal acceptance of the principle of universal jurisdiction, its applicability to piracy jure gentium, and its incorporation in Kenyan municipal law ensures that Kenya can continue to play a central role in the regional prosecutions of piracy suspects.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

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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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A Second Avenue to Assert Universal Jurisdiction Over Pirate Negotiators

In my previous post, I argued that the two pirate negotiators prosecuted by the United States – Mohammad Saaili Shibin and Ali Mohamed Ali – must have incited or intentionally facilitated piracy while on the high seas in order to have exposed themselves to prosecution by a court whose only basis for taking the case is universal jurisdiction.

There is another way for a pirate negotiator to subject himself to universal jurisdiction: an ex ante agreement to negotiate for pirates in the event of a successful hijacking.

An Arrest on the High Seas
(Maritime Security Review)

This avenue is not applicable in the Shibin or Ali cases, as there is no evidence suggesting such an agreement, but it is nonetheless worth exploring because this is the avenue through which the true kingpins can be brought to justice.

The source of this second avenue of universal jurisdiction is the plain meaning of the verbs “to incite” and “to facilitate” contained in UNCLOS art. 101(c).

In the English dictionaries of the 18th, 19th, and 21st centuries, to incite is “to stir up,” “to animate,” and “to move to action.” To facilitate is to “to make easy,” “to free from difficulty,” or “to help bring about.”

Both of these verbs have prospective implications. An inciter or facilitator must either induce violence, detention or deprivation on the high seas or make such violence, detention, or deprivation on the high seas easier than that it would have been without the inciter or facilitator.

It strains both logic and credulity to suggest that an individual who had no involvement in – or even knowledge of – a hijacking on the high seas somehow spurred on or made easier that particular hijacking.

So in the end, we are left with two potential avenues for a pirate negotiator to subject himself to universal jurisdiction. The first is to commit an act of inciting or facilitating while physically present on the high seas, and the second is to enter into an ex ante agreement with the pirates.

The second avenue brings the real kingpins – financiers and investors, not negotiators – within the scope of universal jurisdiction. As for negotiators who neither enter into an ex ante agreements nor set foot on the high seas, they should still be judiciously targeted for prosecution, but something more than universal jurisdiction is required.

Flag states of the victim ship, national states of the crewmembers, as well as Somalia itself must step in and fulfill their international obligation to prosecute.

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 TwitterCross-posted on Communis Hostis Omnium.

 

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A High Seas Requirement for Pirate Facilitators Under UNCLOS?

Somali Pirates
(al-Jazeera)

The economic conditions in Somalia are such that there is no shortage of men willing to hijack a ship, risking their lives in hopes of earning of the equivalent of 20 years of income – $5,000 in Somalia – out of a single $1.5 million ransom. That basic reality is the driving force of modern maritime piracy, and it leads to a similarly basic conclusion.

Aside from fixing the economic situation in Somalia, prosecution of those higher up in the criminal chain of conspiracy – the investors and financiers of piratical operations – is the most effective, non-violent means of to putting an end to maritime piracy. If labor is cheap and capital is scarce, it makes sense to go after the capital.

The United States government has done its part by prosecuting two pirate negotiators,1 Mohammad Saaili Shibin and Ali Mohamed Ali. The current dispositions of these cases highlight an interesting and important legal issue stemming from a common characteristic of piracy higher-ups. They themselves never set foot on the high seas.2

Mohammad Saaili Shibin
(AP Image)

In Shibin’s case, Judge Robert Doumar allowed his trial to proceed; Shibin was found guilty and sentenced to 12 terms of life. In the Ali case however, which is still in progress, Judge Ellen Huevelle has found3 that the perpetrator must be on the high seas for a crime of universal jurisdiction to occur.

What accounts for this discrepancy in United States courts? Who has the better of the argument? The answers to these questions have profound implications for the future of prosecuting those who profit most from piracy.

At the heart of this disagreement is a dispute over the proper interpretation of the UNCLOS definition of piracy and the United States’s federal statute criminalizing piracy under the law of nations. Both of these texts must be read according to one of the most basic canons of statutory interpretation — that statutory language not be read as being duplicative or ineffectual.

Opponents of a high seas requirement, such as Douglas Guilfoyle at University College London, argue  that UNCLOS art. 101’s definition of piracy makes it clear that performing piratical acts carries a high seas requirement, but acts of inciting or intentionally facilitating piracy can be performed anywhere, implying that both are crimes of universal jurisdiction.

To support this argument, opponents cite art. 101(a)(i) of UNCLOS, which states that piracy “consists of…any act of violence or detention [or deprivation]… committed for private ends by the crew… of a private ship…and directed…on the high seas, against another ship” [emphasis added]. They contrast that section with the next part of the piracy definition, art. 101(c), which says “any act of inciting or of intentionally facilitating an act described in subparagraph (a)” constitutes piracy. Opponents of a high seas requirement for facilitators conclude that, because UNCLOS announces a high seas requirement in subparagraph (a) and not in subparagraph (c), no such requirement exists for facilitation.

Conversely, proponents of a high seas requirement, including Northwestern University’s Eugene Kontorovich, cite various provisions of UNCLOS suggesting that universal jurisdiction over maritime piracy exists only where the act takes place on the high seas.

Chief among these provisions are arts. 100 and 105. The former limits a state’s duty to cooperate in the repression of piracy, and the latter restricts states’ universal capturing and adjudicating authority over pirates to acts occurring on the high seas. Additionally, art. 86 explicitly states that Part VII of UNCLOS (the part including the definition of piracy) only applies to the high seas and other areas outside the jurisdiction of any state.

Opponents counter that even if all of the aforementioned high seas references are operable, the drafters’ inclusion of a high seas requirement in 101(a) is otiose if 101(a) and (c) already had an implicit high seas requirement. Any other reading, they argue, is contrary to one of the most fundamental canons of statutory interpretation.

This is a mistake stemming from a conflation of UNCLOS’s definition of piracy and its pronouncements on universal jurisdiction. Opponents may be correct in suggesting that there is no high seas requirement for facilitators to commit statutory piracy as defined by UNCLOS, but they are wrong in arguing that performing an act described in art. 101 leads directly to universal jurisdiction.

Where piracy is concerned, UNCLOS performs at least two discrete functions: defining piracy and delineating the metes and bounds of universal jurisdiction over piracy. Art. 101 defines piracy as, inter alia, any act of violence, detention or deprivation on the high seas or any act of inciting or intentionally facilitating such an act. Where the statutory definition is concerned, there is a high seas requirement for perpetrators but none for inciters or facilitators.

Art. 101 says nothing about universal jurisdiction, however, and the parts of UNCLOS that do discuss universal jurisdiction – arts. 100, 105, and 86 – make it unmistakably plain that such jurisdiction extends only to acts physically performed on the high seas.

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Section 1651 splices the definition of piracy and its high seas requirement as precondition for universal jurisdiction, outsourcing the former to international law (“as defined by the law of nations”) while making the latter explicit in the treaty (“[w]hoever, on the high seas”) , which is entirely consistent with the plain language of UNCLOS and the canon of construction at issue.

This means that, as defined by UNCLOS, negotiators and financiers who never set foot on the high seas have committed piracy, but that they have not committed a crime of universal jurisdiction. Unless higher-ups enter the high seas, they can be prosecuted only under the territorial, national, passive personality, and protective bases for jurisdiction.

At first blush, it may appear that such an interpretation does not bode well for those seeking to put an end to the global menace of maritime piracy, especially in light of the widely-held belief that the surest non-violent way to deter the piracy, apart from economic reconstruction in Somalia, is through the aggressive prosecution of so-called pirate “kingpins.”

In the coming weeks, however, I hope to dispel the notion that a high seas requirement for facilitators is bad for the international community. Such a requirement is in line with the policy rationale behind universal jurisdiction and it may ultimately be useful in prosecuting and punishing pirate financiers who never leave dry land.

Jon Bellish, the founding Editor in Chief of The View From Above, 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.  This piece is cross-posted on Communis Hostis Omnium.

  1. To be clear; negotiators are not financiers. Financiers perform much less physical labor and reap much more of the profits than negotiators. Though it is financiers that should be the ultimate targets, negotiators are in a similar legal position and are therefore highly relevant. Both groups facilitate, rather than perpetrate acts of piracy, and neither tends to enter the high seas.
  2. This fact was stipulated in Shibin’s case but is still at issue in Ali’s. Although the government claims Ali spent only 24-28 minutes outside Somali territorial waters, it has admitted that there is no evidence that Ali actively facilitated piracy during that time period.
  3. Take a look at Judge Huvelle’s opinion, which is a fine example of the U.S. Federal Bench’s appreciation and understanding of international law.

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United States’ First Universal Jurisdiction Prosecution for Piracy

On July 13, 2012, the U.S. Federal District Court for the District of Columbia handed down United States v. Ali Mohamed Ali.  This case is remarkable for several reasons: first, it is the first time the United States has used the principle of universal jurisdiction to prosecute a Somali pirate and second, the prosecution is not based on what we traditionally think of as piracy.

CEC Future (Micharms)

In November 2008, a band of Somali pirates seized the CEC Future as it sailed through the Gulf of Aden, the treacherous sea lane between Yemen and Somalia that connects the Red Sea to the Indian Ocean.  At the time, the Danish-owned Future carried cargo, was flying the Bahamian flag, and was crewed by Russians, an Estonian, and a Georgian.  Just after the ship was seized, Ali Mohamed Ali came aboard to act as a translator and go-between for the pirates and the Danish shipowners.  He remained on the ship for sixty-nine days, only departing once the ransom had been paid.  The ordeal ended in January 2009 when the Danish owners parachuted the ransom on to the ship.  Fortunately none of the crew were injured; however, the payout was likely between $1 million and $2 million.

Two years later, in April 2011, Mr. Ali was arrested at Dulles International Airport as he made his way to an education conference.  On April 26, 2011, federal prosecutors charged him with piracy and hostage taking, and the connected aiding and abetting and conspiracy charges.

What is remarkable about this case is that there are no U.S. domestic interests implicated.  Neither the crew nor the ship were American; in fact, neither party seriously contends that the ship has ties to the United States.  However, the court concluded that the U.S. anti-piracy statute1 is based on the principle of “universal jurisdiction” and consequently does not require domestic ties.  Universal jurisdiction permits a state to exercise jurisdictional control beyond its territory, in certain circumstances, even when that state’s domestic interests are not implicated.  Piracy has long been held as a universal jurisdiction crime; however, Ali is the first time this theory has been put into practice.

After determining that it could exercise jurisdiction over Mr. Ali, the court turned to how broadly “piracy” was construed in statute and international law.  Because Mr. Ali was charged with aiding and abetting piracy and conspiracy to commit piracy, the D.C. District Court had to determine whether international law permitted and the statute contemplated prosecution for these offenses.  To determine the boundaries of the crime of piracy, the court turned to Article 101 of the UN Convention on the Law of the Sea.2  For the aiding and abetting component, the court found that UNCLOS Art. 101(c) is functionally equivalent and Mr. Ali’s charge could stand.  Conspiracy, however, is not in the UNCLOS definition and the court could not find a basis to permit the charge.

Once complete with the piracy analysis, the court turned to the hostage taking counts.  Hostage taking is not within the definition of piracy, and thus lacked the universal jurisdiction.  But, states can extend their laws extraterritorially, as the United States did when it enacted legislation putting the Hostage Taking Convention into force.  Although Somalia is not party to the Convention, the court, rather boldly, declared that treaty law could be applied in the face of divergent customary international law.3  Indeed, the treaty law may be applied against non-parties so long as it does not violated peremptory norms.  Therefore, because aiding and abetting hostage taking was a cognizable crime and the U.S. authorized extraterritorial jurisdiction, Mr. Ali could properly be charged.  However, the prosecution ran into a hang up when it charged conspiracy.  Under the Charming Betsy principle, because conspiracy to take hostages is neither contemplated by the Hostage Taking Convention nor did Congress expressly intend to violate international law, this charge could not stand.

This case provides a powerful tool to combat piracy.  No longer are prosecutions limited to the poor Somalis on skiffs; with this favorable ruling, U.S. prosecutors can go after the kingpins and financiers.  Now that the question, “Can we prosecute those who plan and benefit from piracy?” has been answered, we must now ask whether we will take on that role.

  1. “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” 18 U.S.C. § 1651 (2006)
  2. United States v. Ali, at *14
  3. Id. at *29

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Borrowing from Civil Aviation

Maritime Piracy: Borrowing from Civil Aviation

Maritime piracy off the coast of Somalia continues to spiral into an increasingly threatening international crisis, with attacks in the Gulf of Aden increasing during the first half of 2011. While more states have been prosecuting pirates in their national courts during the last year, United Nations officials have indicated that as many as 90% of pirates captured by national navies are subsequently released due to complicated legal and financial burdens associated with prosecution. In the search for solutions to the current maritime piracy problem, international legal initiatives addressing civil aviation security may offer insight

A global trend of airline hijackings beginning in the late 1960s and culminating in the terrorist attacks of September 11, 2001, catalyzed various initiatives that have improved the efficacy of aviation security. The international legal regime governing civil aviation security developed through various international treaties, conventions, agreements, and declarations and resolutions from important international institutions. In particular, international agreements embodying the legal maxim aut dedere aut judicare—the obligation of states to prosecute or extradite the accused—are an important component of the international aviation security regime. The United States, as the world’s largest aviation market, has also contributed to the international civil aviation security regime through its domestic legislation. At various times in the modern era, the United States has used economic leverage to propel compliance with its domestic security standards monitored by Federal Aviation Administration security audits by barring non-complying states from access to its airports.

This broad legal framework offers a valuable example of cooperation and collaboration between various stakeholders to address a trend in international crime. While there are limitations that must be considered in drawing an analogy between airline hijackings and maritime piracy due to contextual and legal distinctions, there are significant similarities conducive to legal comparison.

Borrowing from Civil Aviation

Borrowing from Civil Aviation

In particular, the elimination of safe havens for airline hijackers appears to be an effective deterring factor that may inform initiatives relevant to maritime piracy. In aviation security, prosecute-or-extradite approaches have made a discernible impact on deterring hijackings. For example, much of the airline hijacking crisis in the United States during the 1960s and 1970s was driven by Cold War-era motivations involving Cuban political refugees seeking a safe haven in the United States or Cuba (depending on their political orientation). In 1973, the United States and Cuba exchanged diplomatic notes constituting a Memorandum of Understanding that neither country would serve as a safe haven for hijackers. Following this agreement, the number of attempted hijackings of aircraft in the United States dropped significantly from 25 hijackings per year prior to the agreement to only one the following year. This remarkable change suggests that the existence of a sanctuary nation for hijackers enabled the Cuban hijacking problem.

Similar extradite-or-prosecute provisions exist in the international legal regime governing maritime piracy, yet these provisions have not been matched with international compliance. Being unable to rely on Somalia to prosecute pirates within its borders, the international community must, at least temporarily, seek to deter and eliminate safe havens through prosecution outside the current Somali judicial system. The enforcement of international agreements with provisions obliging states to prosecute piracy suspects or extradite them to another state willing to prosecute is a vital part of the solution. To ensure compliance, the international community or the United States should consider coercive mechanisms such as those used in civil aviation security to drive compliance with these important international agreements.

Initiatives that mirror airport security measures designed to deter infiltration of the security infrastructure at airports may also offer anti-piracy solutions. While increased port security may be less effective than its airport counterpart, ports may serve as checkpoints to determine whether ships are outfitted to implement piracy-deterring strategies, such as internationally recognized Best Management Practices (BMPs). Currently, it is believed that shipping companies do not always employ BMPs as suggested by maritime security experts. As ships remain vulnerable to piratical acts and attacks continue to be successful, the piracy problem is perpetuated.

Economic sanctions that have been used to fight airline terrorism may also being used to target financers of piracy crimes. Such measures have already be implemented to some degree on the domestic level through the United States Department of Treasury Office of Foreign Assets Control, which administers and enforces economic and trade sanctions based on foreign policy and national security goals. An Executive Order issued by President Obama on April 12, 2010, authorized sanctions on “those who engage in or support acts of piracy off Somalia’s coast, including those who provide weapons, communication devices, or small boats and other equipment to pirates.” While this approach is encouraging, sanctions may have limited effect because pirates often operate with liquid assets.

Communication between various stakeholders affected by the piracy crisis may also be informed by the international airline security regime. Some commentators have suggested that the International Civil Aviation Organization (ICAO) and its role in air transportation could serve as a model for security cooperation that could translate in the maritime commons through existing bodies such as the International Maritime Organization. In particular, ICAO’s success may serve as a model for an international agency to support an enhanced global framework for international maritime situational awareness and security cooperation.

Any solution to effectively address the maritime piracy crises off the coast of Somalia must be comprehensive. While port security to ensure compliance with BMPs, economic sanctions targeted at piracy financers, and enhanced communication among stakeholders are important considerations, the problem of piracy is unlikely to be eradicated while national navies continue to catch and release piracy suspects. Civil aviation security law provides an applicable example of the international community’s capacity to enforce prosecution or extradition of terrorists and hijackers. Anti-piracy stakeholders, including national governments, the shipping industry, and international organizations tasked with ensuring international peace and security, should consider these successes in limiting airline hijackings through legal accountability as they work together to reign in piracy in the Gulf of Aden.

This post was adapted from the Oceans Beyond Piracy working paper entitled “Borrowing from Civil Aviation: Does International Law Governing Airline Hijacking Offer Solutions to the Modern Maritime Piracy Epidemic off the Coast of Somalia?” Please contact Richard L. Kilpatrick, Jr. with comments or questions at rkilpatr@tulane.edu.

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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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University of Denver Sturm College of Law

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