Are Sea Shepherds Pirates? The United States Supreme Court May Decide Soon

The Supreme Court of the United States may decide in the near future whether Sea Shepherds are pirates.  The Sea Shepherds, a marine conservationist not-for-profit organization, which has been the subject of an injunction requested by The Institute for Cetacean Research (ICR), a Japanese whaling company, and issued by the Ninth Circuit, has petitioned the Supreme Court for a writ of certiorari, asking the Court to review the Ninth Circuit’s decision to issue the injunction.  The Ninth Circuit had determined that the Sea Shepherds’ activities – attempts to interfere with whaling activities by throwing bottles of a foul-smelling but benign substance called butyric acid on the decks of whaling ships, towing lines across the bows of such vessels in an attempt to entangle their propellers and slow them, and piloting its own vessels near the whaling ships to impede whaling, in a way that rendered collision likely – constituted piracy.  Because of the piracy categorization, the Ninth Circuit proclaimed that it could assert extra-territorial jurisdiction for the purposes of supporting the injunction issued against Sea Shepherds (the injunction, issued sua sponte by the Ninth Circuit, prohibited Sea Shepherds from going near ICR vessels, from endangering the safe navigation of these vessels and from attacking them – activities that would occur outside the territorial jurisdiction of the United States).  The piracy label was thus crucial for the Ninth Circuit’s holding – that it could exercise extra-territorial jurisdiction and order compliance with this overseas injunction.  The piracy categorization, however, is controversial.  This post will explore two issues related to the Ninth Circuit’s view of piracy: whether the “private ends” requirement of the United Nations Convention on the Law of the Seas (UNCLOS) definition of piracy encompasses acts by private parties committed for non-pecuniary ends, and what threshold of violence is required for acts to rise to the level of piracy under the same treaty.

Other scholars and I had previously written on the issue of whether the Sea Shepherds’ actions – committed for non-pecuniary ends- constituted piracy under international law.  Eugene Kontorovich and Jon Bellish argued that as long as actions are committed by private parties, such actions would constitute “private ends” for the purposes of the piracy definition under UNCLOS.  According to Kontorovich and Bellish, it does not matter whether acts are committed for political, environmental, or pecuniary ends; as long as they are committed by private parties, they will satisfy the UNCLOS definition of piracy.  Kevin Jon Heller and yours truly had a different view, arguing that only acts committed for truly private ends could satisfy the definition of piracy, and that Sea Shepherds could not be considered pirates.  In this petition for a writ of certiorari, the Sea Shepherds are asking the Supreme Court to review the Ninth Circuit’s decision that Sea Shepherds are pirates because they are committing acts of violence for private ends, regardless of the fact that their goals are completely non-pecuniary.  The Ninth Circuit viewed piracy not as robbery at sea, but as somewhat violent acts committed by private parties at sea.  According to the petition for a writ of certiorari, the Supreme Court should review the Ninth Circuit’s decision because: “this case is not about piracy. It is about whether the federal courts may create new law and enforce it extraterritorially, without authorization by Congress, and in defiance of the mandates of this Court.”  The petitioners/Sea Shepherds are referring here to the infamous Kiobel case, which the United States Supreme Court handed down after the Ninth Circuit’s issuance of the injunction in this case.  A discussion of the Kiobel case is beyond the scope of this post, but it suffices to point out that the Kiobel case limited the ability of United States federal courts to exercise extra-territorial jurisdiction in suits arising under the Alien Tort Statute, which ICR/respondents had relied upon in this case in order to sue Sea Shepherds.  Moreover, Sea Shepherds/petitioners point out that while there is universal agreement that piracy is a fundamental crime under international law, the content of the piracy definition is not well-settled, as the above scholarly disagreement demonstrates.  It is unclear what the “private ends” requirement encompasses, and consequently, the content of the piracy definition/norm is not sufficiently clear to support jurisdiction under the Alien Tort Statute.

Less has been written about the threshold of violence necessary for a finding of piracy under international law.  The Sea Shepherds’ petition for writ of certiorari argues that the piracy norm under international law is not sufficiently clear to support jurisdiction under the Alien Tort Statute, because of disagreement as to what level of violence is necessary to support a finding of piracy.  The petition additionally argues that the Ninth Circuit was wrong in holding that a minimal level of violence would be sufficient for a finding of piracy under UNCLOS, because other courts and authorities have found that piracy, as a serious crime warranting extremely high penalties, requires a finding of overt violence of a sufficient degree, such as robbery, murder, destruction by fire, etc., committed on the high seas.

The petition thus requests the Supreme Court to review the Ninth Circuit’s decision on the following questions of law:

  1. Whether the Alien Tort Statute provides jurisdiction for an extraterritorial injunction regulating otherwise legal behavior on the high seas and in waters claimed by another sovereign, based on a norm of customary international law whose meaning is disputed within the international community.
  2. Whether a U.S. federal court may use its contempt power to sanction conduct that violates the “spirit,” but not the express terms, of an injunction.

For the purposes of piracy scholarship, the first question is the more interesting one.  It is unclear at this point whether the Supreme Court will accept this petition; if it does, stay tuned for additional posts on these fascinating issues.

Cambridge University Press Publishes “Prosecuting Maritime Piracy”

CUP Piracy Book

Professor Milena Sterio with a newly published copy of “Prosecuting Maritime Piracy”

Cambridge University Press just published a new collected volume on maritime piracy.  “Prosecuting Maritime Piracy: Domestic Solutions to International Crimes” (edited by Michael P. Scharf, Michael A. Newton and Milena Sterio) contains thirteen chapters.  The first four chapters (by Sandra L. Hodgkinson, Ved P. Nanda, and Milena Sterio) focus on the definition of the crime of piracy and issues related to universal jurisdiction over the piracy offense.  The next four chapters (by Laurie R. Blank, Mark V. Vlasic and Jeffrey Paul DeSousa, Frederick Lorenz and Laura Eshbach, and Milena Sterio) focus on the pursuit, arrest, and pre-trial treatment of suspected pirates.  The next three chapters (by Frederic Lorenz and Kelly Paradis, Michael A. Newton, and Jon Bellish) focus on legal issues in domestic pirate trials.  The last two chapters (by Eugene Kontorovich and Yvonne M. Dutton) discuss the sentencing and post-sentence treatment of convicted pirates.  The Introduction and Conclusion were contributed by Michael P. Scharf.

Happy reading!

Maritime Security at a Crossroads

It is our pleasure to introduce today’s contributor, Thomas Bennett, LLB MSc (Oxon) Solicitor.

bennett_master (4) publicity pgiThomas Bennett LLB MSc (Oxon) Solicitor. Thomas Bennett qualified as a corporate lawyer in 1995. He practiced corporate finance law in a ‘magic circle’ law firm in The City of London and has a higher business degree from the Saïd Business School at the University of Oxford. He was a legal adviser and business consultant to Protection Vessels International Limited thereafter Protection Group International Limited from 2010 until 2013. In 2012 Tom was a visiting professor of maritime security at the World Maritime University in Malmo Sweden. Tom is the owner of VHenry&Co. and VHenry&Co. Limited. The former is a legal practice, the latter an advisory business each specialising in the needs of the security sector (maritime, land and information security).

Somalia remains a failed state. Poverty, the absence of enforced law and psychopathy masquerading as a just cause foments an environment where money for gain, or money to finance terror, means that piracy in The Indian Ocean has not gone away. What started in the Somalian North as a tax on shipping is a continuing threat to global trade.
Still; maritime piracy has abated. Nation states have acted, armed guards have helped. The threat has been contained. Has it? It is a brave shipping company who sends an unprotected crew through the high risk area of The Indian Ocean. And if the rationale for piracy remains, then piracy remains. Somalia, lawless as it is, will wait.
Western powers will not finance armed forces to patrol the Indian Ocean indefinitely. The maritime industry will price the risk according to the threat. The probability of piracy has diminished. The business of maritime security must adjust. As the perception of threat falls, so will the cost of protection. Competition will force prices down and many armed security companies will not survive. Some will merge. Consolidation is inevitable. Or so it seems.
Maritime security is still big business. We estimate that total transit revenue in The Indian Ocean is $400 million a year. The supply chain ranges from nation states to former servicemen, maritime agents to legitimate dealers in arms. All vested interests. All of who take their piece of the whole. Today, prices for transits on vanilla routes are so low that it is hard to discern how a profit is achieved. If there is no more profit to be had, then competitive tension is designed to push all but a few players in this market to mutually assured destruction.

Regulation? Not Really
Gifting weapons to non-state actors is not without precedent. This gift does, however, breach most political theory as to who should have the right to bear arms. Regulation is and was inevitable. Law only works when it is applied to all; and regulation – the benchmark against which the use of lethal weapons is measured, should have the force of law. It does not. ISO28007 has not worked. Some have it; some do not. There are many buyers who do not require it. There are many sellers who do not bother. BIMCO’s recent endorsement of ISO28007 may help. It may be too late. Buying patterns are entrenched. Too many stand outside Anglo-centric regulatory initiatives. It is easy to do so, legally, practically. As former Royal Marines increasingly price themselves out of the market for guards, a once Anglo-centric market along with its regulatory attire, becomes increasingly irrelevant. ISO28007 may remain the standard for some; edicts from the UK may be the benchmark for others, but, economics is forcing this marketplace to change. There is a very long tail of buyers who have little time for edict; and an equally long tail of sellers who go along.
Who does; who can, police this market? Flag states perhaps. Yet the paradox of policing a market that pays well usually results in piecemeal regulation at best. After all, piracy is a diminishing threat – no vessels have been taken within corporate memory. So why change? Qui bono?
What of littoral states – those adjacent to the High Risk Area? Again, there are economic imperatives at work. Nation states and their agents do well out of maritime security. There is no overwhelming rationale for change.
What of Sri Lanka, the UAE and Oman? Sri Lanka’s place in maritime security is channelled through Avant Garde Maritime Services (AGMS) under a public private partnership with RALL. AGMS is being critically evaluated by the new government. The suggestion is that the Srisena government will change the way it regulates the way in which weapons and men are distributed to passing vessels. In which case, AGMS may lose control. But Sri Lanka, will not. Pre-AGMS, weapons were held on land and disseminated by the Sri Lankan Navy. Fees were paid. The state took control then; it may do so again.
As to Oman, or The UAE, or indeed any of the littoral states adjacent to the outflow of The Red Sea, there seems to be little real appetite to manage the risks attached to having floating armouries within sight. Floating armouries are, of course, in international waters and the UN Convention on the Law of the Sea makes a fist of keeping these states away, however, one need only ask what Her Majesty’s government might do if there was a floating armoury bobbing about within sight of Plymouth.
Which brings us back to regulation and market forces. Consolidation in the maritime security sector is inevitable. Or is it? It should be. Any standard business textbook on strategy will tell you that a market with multiple competitors will shrink to but a few. In a shrinking market, consolidation pressures are more intense. Companies will merge in order to marshal forces. Bankruptcy will emerge where sale, merger or deep pockets are absent.

Consolidation; What Consolidation?
Consolidation has not happened. Why? Some have tried to diversify (PGI). Some have gone bump (GOAGT). Some have divested then gone bump (Drum Cussac). Some are grabbing market share (Ambrey). Others do what they do, well (Diapolous). The long tail? All are out there, with shrinking margins, taking risks, fighting to the death. And it is, perhaps, in this last phrase, that the clue to this market is apparent. We have seen at first hand, how former soldiers start companies in the space and trade their fighting spirit from the military to the commercial. The enemy bears a different name. And absent commercial experience (which most do not have) the strategic confusion amongst alpha males in charge of such companies leads to a community of egos who cannot see the benefits of cooperation in a disparate market. Who, after all, if two companies merge, is going to step down and be subservient to the other? Better to die trying than take orders from someone else.
This is dangerous. In a poorly policed market, where the trade is civilians offering protection through resort to lethal force, a race to the bottom will result in cut corners. From four, to three; from two to one guard on a vessel – a poorly trained guard at that, economics and ego will force lip service to safety and the very reason guards are on vessels in the first place. Lose (no profit). Lose (no safety).

A Solution; What Solution?
Is there a solution that offers ship owners respite from this worst of all worlds; and offers the maritime security community respite from itself? There is. The answer lies in economies of scale. It lies in better logistics. It lies in cooperation and sometimes, in merger or sale. The market has already found the answer. Unfortunately it is, in its present guise, illegal and politically untenable.
The model is this. Put a cheap guard on a salary; put him on vessel after vessel with a kit box and float him around the Indian Ocean for a couple of months, avoid land, make fleeting visits to floating armouries and you have a highly efficient business with very high gross margins. Once a guard’s salary and costs are paid, the additional revenue is all gravy.
There is value in this (idealised) model. Most maritime companies do not have the infrastructure or the client base to support it. Instead, margins are decimated as a result of flights, agents’ fees, weapons storage costs, floating armoury charges, transfers, daily accommodation costs and hotels. If the next transit is a week away, profit may be lost altogether trying to keep guards in theatre. Profit will be lost sending them home. Weapons could be in the wrong place. Kit may be travelling in the wrong direction. Clever logistics management may help. But, fundamentally, a maritime security business trading on increasingly paper thin margins has to find efficiencies to survive.
Unless, of course, it has that critical mass of men, equipment and transit volume. If it has, then clever logistics and financial modelling are key. Critical mass is an absolute. And if critical mass is not an option, common sense, clear strategic thinking and sound commercial management should force decent maritime security companies to find partners to buy or merge with. Get it right and profit will increase as logistics, financial modelling, economies of scale and buying power combine to force gross and net margins up. Get it wrong and bankruptcy or closure looms. Many maritime security companies understand decent logistics, efficiencies and the bottom line. But, they have not the client base to action it. Instead, it is actioned in a piecemeal way. It is actioned in an illegal manner. These efficiencies have led to the sharing of men and in particular, weapons. Sharing weapons is illegal, it is politically charged, it is extremely dangerous.

Weapons For Hire – The Beginning of the End
Although no one has an absolutely precise figure to hand, we believe that there are at least 40,000 licensed weapons floating about or stored, ready for use, in The Indian Ocean. They sit on floating armouries, adjacent land or are in theatre under use. These weapons are not tracked on a real time basis. Companies are only put to proof when asked. In other words, regulation requires the sector to know what weapons they have and where they got them from.
Under UK law, weapons cannot be leased, or licensed, or ‘lent’. Heavy sanctions wait for those companies that do. But, the congruence of economic necessity and piecemeal regulation (many maritime security companies have nothing to do with the UK) means that weapons are passed between companies and used on a mate’s basis. For some, if weapons are not shared, the efficiencies that the smaller companies need to survive through sharing, will be lost. It is beg, borrow, or go bust.
Weapons swapping, sharing, hiring and licensing – it all leads to the same thing. It is not politically sustainable for enough arms to service a third world army to be bobbing about the sea with little idea as to who has what. The United Nations has taken notice, the US State Department has taken notice, the EU has worked it out and The British Foreign Office has been briefed.
Unless the gift of allowing private citizens to bear arms is to be taken away (or managed) by nation states once again, sensible actors within the maritime security space need to consider how best to service their shareholders and maximise profit in a highly responsible manner – merge, consolidate, sell. Choose economies of scale, clever logistics, astute modelling and commercial cooperation. There really is no alternative.
Weapons cannot and should not be traded at armouries or elsewhere. It is the beginning of the end. Equally, ship owners and charterers need to utilise their power and refuse to partake in this race to the bottom. It is, after all, the preservation of the safety of their men that is the end-game. And those that advise the maritime sector – its trade associations and the professional services who have done so well over the last five years, have to stand up for corporate social responsibility. We live in dangerous times. Somalia remains a failed state. Terrorism is prevalent in theatre. Meaningful regulation is piecemeal. Profit is being decimated. Corners are being cut. Weapons may start to go missing. There is a choice, a viable commercial solution for maritime security companies facing home truths. They must take it before it is too late.

A Proposed African Court with Jurisdiction Over Piracy: How Will This Work?

It is our pleasure to introduce Oliver Windrige as today’s guest contributor.

Oliver Windridge is a British lawyer specializing in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.

Following on from my recent post at The ACtHPR Monitor on the future African Court on Justice and Human Rights (ACtJHR), this post explores at further length one of the other 14 crimes which will fall under the jurisdiction of the ACtJHR – piracy.

As a brief introduction and recap, the African Court on Justice and Human Rights is a proposed African Union backed court. The ACttJHR has yet to become operational, requiring ratification from at least 15 African Union member states. Once operational, the ACtJHR will consist of three sections; a general affairs section dealing with commercial and civil matters, a human rights section that will replace the current African Court on Human and Peoples’ Rights, and an international criminal section which will have an ambitious jurisdiction over 14 international crimes including piracy as well as genocide, crimes against humanity and war crimes.

That piracy is one of the ACtJHR’s 14 crimes is worth noting in and of itself. Since the court will have the backing of at least 15 AU member states it can be said to be a truly international, albeit continental, court and therefore can safely be referred to as the first international court with the jurisdiction to try piracy cases (the International Criminal Court (ICC) does not have jurisdiction over piracy). Until now the international element of piracy cases has been often seen as international cooperation in manning the seas, but it has been national jurisdictions- most notably in the Seychelles, Kenya and Mauritius- which have born the burden of prosecuting the cases, albeit with financial and professional help from other countries. The inclusion of piracy in the ACtJHR Statutes moves the cases themselves into the international arena and has the potential to bring piracy into a truly international setting, thus alleviating the burden from individual countries to prosecute these cases.

As to the law itself, Article 28F of the ACtJHR’s draft Statute defines piracy as follows:

a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or a private aircraft, and directed:
i. on the high seas, against another boat, ship or aircraft, or against persons or property on board such boat, ship or aircraft;
ii. against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State
b) any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft;
c) any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).

This definition is an exact replication of Article 101 of the United Nations Convention on the Law of the Sea with the addition of “boat” alongside ship or aircraft throughout.  This is unsurprising given the Convention’s almost universal position as reflecting customary international law on piracy.

Article 28N of the ACtJHR Statute also sets out the modes of liability through which accused can be commit piracy, as follows:

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

i.                    Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;

ii.                  Aids or abets the commission of any of the offences set forth in the present Statute;

iii.                Is an accessory before or after the fact or in any other manner participates in a  collaboration or conspiracy to commit any of the offences set forth in the present Statute;

iv.                Attempts to commit any of the offences set forth in the present Statute.

These modes of liability apply to all 14 crimes under the Court’s jurisdiction.  It is interesting to note how some of these modes of liability mesh with the piracy definition: for example, Article 28F(c) refers to inciting piracy as a crime whereas Article 28N(i) refers to inciting as a mode of liability.

Despite these small issues regarding the relationship between the definition of piracy and modes of liability, the ACtJHR Statute raises many more practical questions, not least of which is whether this court can really work?

Regarding jurisdiction, under Article 46F of the ACtJHR Statute, the ACtJHR will be able to exercise its jurisdiction over piracy cases where:

1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party;

2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.

3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 46G.

Therefore, even if countries with prevalent piracy issues such as Somalia are not a state party to the ACtHJR the Court will be able to exercise jurisdiction to hear the case if it is referred to by another state party, which raises the possibility of countries directly affected by piracy, for example Kenya or Tanzania, referring piracy matters to the Court.

An interesting issue will be the capture of alleged pirates irrespective of who referred a piracy matter to the Court. Whilst there is general agreement that universal jurisdiction allows third party states to capture pirates who may be nationals of non-ACtJHR member states, it will be interesting to see how the interplay works between their capture and the handing over to the ACtHJR, since this process may result in several countries being involved.  For example, piracy off the coast of Tanzania referred to the ACtJHR by Kenya could lead to the capture of Somali alleged pirates by the British Navy who could then be transferred to the ACtJHR for trial.

Presumably, a memorandum of agreement or understanding will need to be drafted between those authorities patrolling the seas around Africa who are not member states of the ACtJHR, for example the British Navy, and the ACtJHR.  Such a memorandum would need to specify that patrolling authorities which are not member states of the ACtJHR will hand over into the custody of the ACtJHR persons captured allegedly committing piracy once a matter is referred to the Court. The transfer of individuals would be the same as suspects for genocide, crimes against humanity or other crimes. That the suspects would be detained by third party states also would not be dissimilar to an accused being detained by a third party (for example a Rwandan being detained in Kenya)

The power of these patrols to carry out arrests would be unlikely to attract debate since it is long recognized that piracy enjoys universal jurisdiction. However, capture raises the issue of indictments. Under the ICTR, ICTY, ECCC, SCSL and ICC, indictments are issued against named persons, almost always not in the custody of the court. With piracy cases, however, it is far less likely that such named person indictments can be issued unless for particularly notorious leaders or land-based backers. Instead, the bulk of piracy arrests and transfers to the ACtJHR are likely to be those picked up on the high seas by patrols who find them. These alleged pirates will not be previously known to the authorities and will therefore not have named indictments issued against them unless a blanket indictment was somehow issued which would be fraught with additional legal issues.

The lack of indictment is not necessarily a problem- people are arrested and detained for criminal offences at the national level everyday without outstanding indictments- but it is likely to be an administrative headache to process new indictments and still uphold the suspect’s rights to a first appearance without delay. This is to say nothing of the fact that the process of handling suspects without outstanding indictments is fundamentally different to that of suspects wanted for crimes such as genocide and crimes against humanity where a prosecutor often spends considerable time crafting indictments based on research and investigations. The difference between these indictments means that piracy prosecutions even within a international court such as the ACtJHR are likely to have more in common with a domestic robbery case than that of a genocide case. On the positive side, this could well mean a more efficient process since indictments would be relatively short, containing small numbers of charges and therefore lead to shorter trials, with smaller amounts of evidence and fewer witnesses required. On the negative side, these cases could be slowed down by a prosecutor having to put together a case only once an alleged pirate has been captured. This process of only starting investigations once a suspect is detained has the potential to massively slow down the whole judicial process and may well run counter to the prosecution office’s processes for trying crimes such as genocide and crimes against humanity.

In reality, this could mean the ACtJHR international criminal law section will effectively contain two strands- a fast track/small cases chamber to deal with matters such as piracy and a second strand which would deal with larger cases of genocide, crimes against humanity, war crimes etc.

In addition, some of the long held problems of prosecuting piracy at an international level may well come to the fore once the ACtJHR is up and running, namely the unwillingness of some countries to financially back prosecutions that have a large commercial element. Without wishing in any way to diminish the undoubtedly harrowing ordeals hostages are subjected to, there remains the fact that the victims of piracy include wealthy shipping and cargo companies- not the type of victims which usually illicit much sympathy from the international community. The issue of victims also leads to the issue of prosecuting piracy cases at the international level at all. As is often stated, the prosecution of crimes such as genocide and crime against humanity is more than just the prosecution of individuals but also the international community’s rejection of policies or ideals which lead to the crimes committed, as well as the international community’s condemnation of crimes it considers unacceptable and abhorrent. When it comes to piracy, there are no such policies or ideals- piracy occurs for financial reasons.  Although it is recognised that the money may be financing an ideal or policy equally as abhorrent as those prosecuted through genocide or crimes against humanity, the fact remains that piracy is at its core a financial crime. This difference has the practical effect that different levels of perpetrators are likely to be tried for piracy matters compared to other international criminal law prosecutions. For example, where the International Criminal Tribunal for Rwanda set out to prosecute those at the very top of the Rwandan government and army, the likelihood is that those piracy suspects captured at sea are not the very top of the piracy trade, but rather the “tools” used to carry it out- the very people international tribunals have not sought to prosecute.

Above are just some of the issues which will likely emerge once the ACtJHR is operational and begins to consider piracy cases. What is not in dispute is that piracy in the modern age has been a significant problem for Africa. It therefore seems logical that the ACtJHR will be the first international court to have jurisdiction over piracy cases. What remains to be seen is whether the Court will succeed in providing an African solution to this African problem.

European Court of Human Rights Orders France to Pay Damages to Somali Pirates

The European Court of Human Rights recently issued a decision (Ali Samatar and Others v. France and Hassan and Others v. France) ruling that French authorities had violated the rights of Somali pirates, when they held them in custody for an additional 48 hours on French soil, before officially charging them with specific crimes.  One group of piracy suspects was held for four days before being transferred on to French soil, and another group was held for slightly over six days before being transferred to France and charged before a judicial authority; the Court held that these delays were justified, because of the existence of “completely exceptional circumstances” noting that the original arrests took place thousands of miles from French territory.  However, the Court held that the additional 48-hour delay on French soil violated the suspects’ rights to liberty and security under the European Convention on Human Rights, Article 5(3).  In fact, the European Court judges held that French authorities had ample time to draw up the official charges against these piracy suspects, while the suspects were held overseas (for four and six days respectively), and that the additional delay on French soil could not be justified because, according to a formal statement by the Court, “[t]he convention’s Article 5.3 was not designed to give the authorities the opportunity to intensify their investigations for the purpose of bringing formal charges against the suspects.”  The Court did not fault French authorities for arresting the suspects abroad, or question the legality of such overseas arrests and detention practices.  The Court ordered France to pay damages in the amount of 9,000 Euros to one group of pirates, and 7,000 Euros to the other.

These particular pirates had attacked two different French vessels in 2008 and had kidnapped multiple hostages.  The hostages were released in exchange for multi-million dollar ransoms, and the pirates were subsequently apprehended by the French military on the Somali coast.  The European Court of Human Rights decision awarding damages to this group of pirates has been heavily criticized by maritime organizations, such as the International Maritime Bureau (IMB), as well as seafarers’ support groups, such as the Maritime Piracy Humanitarian Response Programme (MPHRP).  An IMB spokesman stated that “There are practical difficulties with respect to the gathering of evidence and transporting of the alleged perpetrators when a crime is committed at sea, thousands of miles from where the court proceedings take place, compared to a crime committed ashore,” and expressed concern that the Court decision would discourage other European nations from taking appropriate enforcement action against suspected pirates.  Roy Paul, program director for MPHRP, voiced even stronger criticism of this decision: “The claim this constituted a ‘violation of their rights to freedom and security’ is an insult to the seafarers and yachtsmen they attacked as surely this is the true violation of the seafarers’ rights to freedom and security. These pirates, in my opinion, gave up any of their rights when they set sail to attack innocent seafarers who were simply doing their essential work.”

Article 5(3) of the European Convention, which French authorities violated according to the above decision, states as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise  judicial  power and shall be entitled to trail within a reasonable time or to release  pending trial…”

In addition to a violation of Article 5(3), the Court also found that French authorities had breached Article 5(1) (right to liberty and security) in the Hassan and Others case, because the French system applicable at the time “had not sufficiently guaranteed the applicants’ right to their liberty.”

The Court press release is attached below.

udgments Ali Samatar v. France and Hassan v. France Suspects of piracy against French vessels appre

Mauritius Court Acquits Twelve Somali Piracy Suspects

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.

 

Oil Tanker Pirated Off Ghana Coast

On June 7th, reports surfaced that a Liberian tanker had gone missing off the coast of Ghana.  The captain had apparently made a distress call reporting that the vessel was being attacked by pirates.  As of today, the ship remains missing; unfortunately, is it likely that it has been pirated and we can only speculate as to the kinds of demands that pirates will make regarding the ship and its crewmembers.

Although piracy has been on the decline off the coast of Somalia, in 2013 the number of piracy attacks rose by one-third off the coast of West Africa, thereby driving up insurance rates and threatening the safety of maritime routes in this region.  The root cause of West African piracy seems to be the uprising in the Nigerian oil-rich Niger Delta, where criminal networks and gangs have blossomed.  West African pirates typically hijack larger ships carrying precious cargo, such as oil.  Attacks have taken place in Nigeria, but also off the coasts of Ghana and Cote d’Ivoire, undermining the development of West Africa as an oil and gas hub by destabilizing deliveries.  West African pirates seem particularly daring.  In an earlier attack, in January 2014, they attacked a vessel off the coast of Angola and sailed it all the way up to Nigeria.

As I have reported earlier on this blog, the development of West African piracy is a serious concern, as it threatens to destabilize the region and thwart economic development.  Unfortunately, it is questionable whether lessons learning from the global combat against Somali piracy will be of any value, as the two piracy models differ on many levels.  The rise of West African piracy underscores the need for the international community to continue its anti-piracy efforts, despite a decline in Somali piracy attacks.