November 12, 2014 Leave a comment
To the disappointment of many involved in the global fight against Somali piracy, the Intermediate Court of Mauritius acquitted twelve Somali piracy suspects in a verdict delivered on November 6, 2014. The twelve suspects had attempted to attack a Panama-flagged commercial vessel, MSC Jasmine, in early January 2013. Shortly after the attempted attack against MSC Jasmine, the suspects were apprehended by joint European Naval Forces, and brought to Mauritius to stand trial pursuant to a transfer agreement which Mauritius had concluded with the European Union. As I have previously blogged, similar transfer agreements exist between capturing authorities and two other regional partner States, Kenya and the Seychelles. While the latter two had already prosecuted numerous piracy suspects, this piracy trial was the first of its kind in Mauritius, and the acquittal appears surprising for both legal and political reasons.
First, the acquittal is legally bizarre, to say the least. The Mauritian court reached its acquittal decision based on several grounds. First, the court declared that the prosecution had not reached its burden of proof as to the identity of the suspects, and whether these twelve individuals were the same ones who actually fired shots against MSC Jasmine. The facts are undisputed as to the following: the MSC Jasmine was attacked on January 5, 2013, by a small white skiff with six to eight men on board. The attack was repelled by the armed security officers on board MSC Jasmine, after an exchange of fire which lasted approximately forty-five minutes. The next day, on January 6, 2013, French authorities operating under the auspices of Operation Atalanta intervened and arrested twelve suspects, in the relative vicinity of the attempted attack against MSC Jasmine; the twelve suspects were on board a skiff and a larger whaler, which had been tracked and observed over the previous twenty-four hours. The arresting authorities presumed that the whaler was the larger mother ship, and that the skiff was the one involved in the attack on MSC Jasmine. The arresting authorities searched the whaler and the skiff; they found no obvious fishing equipment on board, but no weapons either. The suspects were held on board the French ship, Surcouf, for several weeks, because it took about ten days for European Union authorities to decide against prosecuting these suspects, and it took Mauritius about fifteen days to accept jurisdiction pursuant to the above-mentioned transfer agreement. The suspects arrived to Mauritius on January 25, 2013; they were advised of the charges against them (including piracy) and of their right to obtain the assistance of counsel. During trial, most suspects denied that they had engaged in piracy and argued that they were fishermen who, for different reasons, did not have fishing equipment on board. Moreover, the defense argued that the prosecution failed to establish that the twelve suspects were the same individuals who fired shots at MSC Jasmine the day before their arrest, because only six to eight individuals participated in the attack from the small skiff, whereas the arrested suspected numbered twelve. The prosecution argued that these individuals were all involved in the piracy attack, that some had been on the skiff while others remained on board the mother ship/whaler, and that under the theory of common intention, used in the Seychelles piracy prosecutions, all suspects could be charged with the same act of piracy, regardless of their actual roles in the attack. The court determined that while those present on the skiff could be prosecuted together under a variant of the common intention theory of liability, “The same conclusion cannot however be reached as regards the other four to six persons who were on the whaler at the material time, so that there clearly cannot be simultaneousness of the act of the co-authors and mutual assistance to an author of a crime in view of the significant distance between the skiff and the whaler. At best, they are accomplices….”
This conclusion led the court to determine that the issue of proper identification presents another hurdle in the prosecution’s case, because it is impossible to determine which of the twelve suspects were present on board the skiff during the attack, and which were merely accomplices waiting on the whaler/mother ship. “We find that it would be most unreasonable and unfair to find all twelve accused parties guilty as co-authors when we have clear evidence that not all of them formed part of the illegal act of violence, since some were in a whaler at significant distance from the skiff.” The court thus concluded that the prosecution had failed to establish its case, beyond a reasonable doubt, as to the identity of the suspects.
This conclusion is unfortunate and in sharp contrast with other piracy prosecutions, including those in the Seychelles, which the prosecution had relied upon. While it is true that it may be difficult to determine which pirates had accomplished which roles in the piracy act, it is also true that many other courts have used “common intention” or “joint criminal enterprise” types of liability to prosecute groups of defendants, without having to determine the scope of their particular roles in the criminal endeavor. This prosecutorial tool is a widely accepted mechanism for imposing criminal liability on joint perpetrators, which should be available in all piracy prosecutions, like in the Seychelles. Otherwise, almost all piracy suspects will be able to shield themselves from liability by asserting that it is unclear which role each of them had played in a piracy attack.
In addition, the court determined that the prosecution had failed to establish that the alleged piracy act satisfied the “high seas” requirement under the Mauritius Piracy and Maritime Violence Act. Section 2 of this Act defines the “high seas” as ““high seas –(a) has the same meaning as in UNCLOS; and (b) includes the EEZ.” In a bizarre twist of legal reasoning, the court determined that the term “EEZ” in Section 2 of the Piracy and Maritime Violence Act refers only to the Mauritian EEZ, so that the term “high seas” in Section 2, quoted above, only includes the Mauritian EEZ while excluding all other countries’ EEZs. Because the attack against MSC Jasmine took place within the Somali EEZ, the court determined that the prosecution had failed to satisfy the “high seas” requirement under Mauritian law. This conclusion is unfortunate and contrary to UNCLOS and many other national piracy laws. UNCLOS clearly defines the high seas as including all EEZs and excluding only the coastal states’ territorial seas. It is unclear how the Mauritian law can be interpreted differently, as it clearly states that the meaning of “high seas” is the same as in UNCLOS!
Finally, the court found that the twelve suspects had been detained illegally by the French authorities, because of the length of their detention (about three weeks) before they were transferred to Mauritius and charged with a particular crime (piracy). The court examined the issue of detention legality under French law, and thus also under the European Convention on Human Rights (because France was the flag state where these suspects were detained). The court discussed multiple European Court of Human Rights cases to determine whether the length of detention in this case was reasonable, and ultimately decided that it was not, because the period of three weeks was excessive, because the piracy suspects may have been mistreated by the French authorities, and because they could have been airlifted as opposed to transported by boat to Mauritius. “We do not find that the present matter was met with “wholly exceptional circumstances” which warranted the twelve accused parties being detained or retained, and therefore deprived of their liberty for such a long period on board of the Surcouf….This finding in itself is so grave that it would have warranted the stay of proceedings outright against all twelve Accused in view of a flagrant breach of a fundamental right of the highest importance in a democratic society.”
This conclusion is unfortunate as well, as it appears that a case of piracy truly represents “exceptional circumstances” (under the European Convention on Human Rights) warranting a longer delay before the suspects are transferred to competent prosecuting authorities. The suspects had been apprehended on the high seas, far from Mauritius, and it was unclear which State would accept jurisdiction and subject these suspects to trial. Under such circumstances, a delay of three weeks appears more than reasonable, and it is unfortunate that the Mauritian court reached a different conclusion. While respecting procedural rights of any criminal defendant is of utmost importance to all democratic nations, detaining piracy suspects on board a ship for three weeks while determining where to ultimately prosecute them does not rise to the level of a flagrant due process violation which would justify a court’s decision to dismiss. It would have been far more beneficial, in light of the necessity to appropriately combat piracy on a judicial level, to convict these suspects, provided that the prosecution had established all the other elements of the offense of piracy.
Last but not least, the outcome of this case is surprising politically. Mauritius had benefitted financially from its transfer agreement and its decision to open court-house doors to piracy prosecutions. In this particular case, the press had reported that Mauritius was paid the sum of 3 million Euros to accept these piracy suspects and to prosecute them in Mauritian courts. It appears from reading this verdict that the Mauritian court somehow forgot about its country’s important role in the global fight against piracy, and engaged instead in dubious legal reasoning leading toward acquittal. We can only hope that the case will be overturned on appeal.