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.

UNOSAT Global Report on Maritime Piracy – a Geospatial Analysis

As part of its UNOSAT programme, the United Nations Institute for Training and Research recently launched a global report on the geospatial analysis of piracy activities. UNOSAT uses satellite derived geoinformation in critical areas such as humanitarian relief, human security, strategic territorial and development planning.

The global report, building primarily on data maintained by the International Maritime Organization, explores how trends in geospatial patterns and severity of reported piracy incidents are developing from 1995 to 2013.

Maritime Circulation and Piracy 2006-2013

Courtesy UNOSAT Global Report on Maritime Piracy

Not surprisingly, two areas were observed because of the significant trends in piracy activities: the Western Indian Ocean, including the Gulf of Aden, and the Gulf of Guinea. In the Indian Ocean, including the Malacca Strait, and in South America, no major trends were observed. Piracy in the Malacca Strait, however, continues to be a major disruptor for safe routes in the eastern Indian Ocean.

As for the Western Indian Ocean, the following observations are made:

  • There has been a significant reduction in the number of pirate attacks during 2013 – to the extent one can claim they have almost stopped (28 incidents in 2013, of which only 8 since 15th August). Not a single vessel was hijacked;

  • The median distance from where an attack is reported to the nearest coast has dropped from close to 400 km in 2010 to under 50 km in 2013, thus indicating a considerable reduction in the radius of successful pirate activities;

  • Incidents involving the use of rocket propelled grenades, relatively heavy armour for pirates, has decreased from 43 in 2011 to 3 in 2013;

  • Ransom amounts paid to pirates have decreased from US$150M in 2011 to about US$60M in 2012;

  • In addition to the well-known feature of piracy “mother ships” from which fast-going skiffs can radiate, a new trend of floating armoury vessels supplying anti-piracy entities with weapons out in international waters is observed.

The Gulf of Guinea differs from the western Indian Ocean, although the overall number of attacks carried out is of a smaller scale:

  • The number of attacks show no sign of decreasing;

  • Attacks in the high seas have increased, while attacks in ports are on the decrease;

  • The types of attacks have gone from low-intensity towards more violent acts;

  • The Financial losses to the national economies for countries with ports in the Gulf of Guinea are considerable. This has forced certain countries to take military action that has proven successful.

The findings confirm the already well-known trends in modern day piracy in these areas.

Several organisations collect and analyse data relevant to piracy. While there have been major improvements in information-sharing, this is yet another area in the fight against piracy which suffered from fragmentation of approaches and consequently from dispersion of resources. The report thus provide for a number of recommendations for standardisation and possible better coordination.

Notably, the report advocates for the creation of a “severity index” to better differentiate the gravity in the use of violence during reported incidents in future data collection and analysis. The report indeed remarks how for close to half of reported piracy incidents no threat of violence has been reported. A similar index is used by the ReCAAP in monitoring piracy incidents in South East Asia.

The report also highlights how the distance from the coasts from which the pirate carry out their attacks is correlated to the pirates’ technical and operational capabilities and could thus function as an early predictor of an escalation in the attacks.

EU-Mauritius Transfer Agreement at Risk?

It is our pleasure to welcome a post by Marta Bo, Visiting Researcher at the University of Amsterdam Center for International Law.  Marta’s post discusses a recent challenge to the validity of the EU-Mauritius transfer agreement, brought by the European Parliament to the European Court of Justice.  Welcome, Marta! 

In Case no. C-658-11 the European Parliament (EP) is requesting the Court of Justice of the European Union to annul Council Decision 2011/640/CFSP of 12 July 2011 on the agreement between the European Union and the Republic of Mauritius on the conditions of transfer of suspected pirates seized from the European Union Naval Force (EU NAVFOR) to the Republic of Mauritius.

In its first plea, the EP contests the legal basis of the EU-Mauritius transfer agreement which was adopted within the framework of the common foreign and security policy (CFSP). The adoption of Article 37 TEU as a legal basis entailed, from a procedural point of view, the application of Article 218 (5) and (6) TFEU which dispense the Council from seeking the consent of or consulting the EP when concluding agreements which relate solely to the CFSP.  According to the EP the contested decision is invalid because it does not exclusively relate to CFSP, but is also linked to other fields, such as judicial cooperation in criminal matters and police cooperation, to which the ordinary legislative procedure applies. In its second plea, the EP claims that the Council has fallen short of complying with the obligation to immediately and fully inform it at all stages of the procedure (Article 218 (10) TFEU).

The EU-Mauritius transfer agreement is only one among several agreements (see here and here) on the transfer of suspected pirates that the EU has concluded with third States on the basis of EU Council Joint Action 2008/851/CFSP of 10 November 2008

EU Council Joint Action 2008/851/CFSP was explicitly adopted to put into effect UNSC Resolutions 1814 (2008), 1816 (2008) e 1838 (2008) calling, inter alia, for international cooperation to combat the threat to international peace and security constituted by the situation in Somalia. To this end, the Joint Action established EU NAVFOR – operation Atalanta, the first European Security and Defence Policy (ESDP) naval military operation. Its mandate (extended until December 2014) embraces: a) the protection of both World Food Programme vessels delivering food aid to the Somali population and, more generally, of vulnerable vessels cruising the so-called Area of Operation; b) the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast through the use of necessary measures, including the use of force; c) the arrest, detention and transfer of pirates in view of prosecution being brought under Article 12 .

Article 12 of the ‘Atalanta’ Joint Action specifically deals with adjudicative jurisdiction and is the legal basis for agreements between the EU and third States on the transfer of suspected pirates captured by EU NAVFOR, such as the one concluded with Mauritius. It indeed provides that in case of inability or unwillingness of the flag Member State or the third State participating in the operation, of the vessel which took them captive, suspected pirates shall be transferred to a Member State or any third State which wishes to exercise its jurisdiction; on the other hand, transfers to any third State are prohibited when the conditions agreed for the transfer are inconsistent with international human rights law.

It is against this background that Advocate General Bot in his Opinion delivered on 30 January 2014 assessed the content and objectives of the EU-Mauritius transfer agreement.

In proposing the dismissal of the first EP’s plea AG Bot asserted that transfer agreements are not only closely linked to the ‘Atalanta’ Joint Action, which comes under the CFSP, but they are essential to its implementation and effectiveness (para 71 of the Opinion). The Joint Action is a measure that should be situated in the context of the fight against Somali piracy in order to preserve international peace and security having due regards to human rights (paras. 83 and 114 of the Opinion). The close link between transfer agreements and the ‘Atalanta’ Joint Action results in the formers squarely falling within the aims of the EU’s external action and, in particular, within Article 21(2)(a)-(c) and (h) TEU, which set out objectives traditionally assigned to the CFSP. In addition, although transfer agreements contain measures similar to judicial cooperation in criminal matters and police cooperation, such traditional instruments of the Area of Freedom, Security and Justice could be mobilized in favor of  objectives of the CFSP and be absorbed therein (para. 118 of the Opinion). In AG Bot’s view the transfer agreement relates exclusively to the CFSP within the meaning of Article 218(6) TFEU and therefore the contested decision was rightly based solely within the framework of the CFSD.

Although the Court of Justice does not have jurisdiction in matters related to the CFSP (Article 24(1) TEU), the AG claimed that the CFSP cannot completely escape the scrutiny of the EU judicature, because it must be able to assess the validity of the procedure adopted to conclude a treaty. AG Bot suggested that the second plea should also be dismissed in light of the fact that the obligation of the Council to inform the Parliament at all stages of the procedure is less stringent in CFSP procedures (where consent from or consultation of the Parliament is not required). Surprisingly, he argued that the Council complied with its obligation by informing the Parliament three months after the agreement was concluded.

It now remains to be seen whether the Court of Justice will follow AG Bot’s arguments. In case it won’t, what consequences will a ruling of annulment have for the EU transfer agreement with Mauritius? Will the annulment have any impact on the piracy trials ongoing before Mauritian courts?

Under Article 264 TFEU the institution whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court. In brief, the Council will have to remedy the grounds on which the annulment was pronounced, which means that it will have to adopt the proper legal basis and procedure.

Since there are important reasons of legal certainty, especially with regards to ongoing piracy trials before Mauritian Courts, the Court of Justice may also want to exercise its discretion either to decide which of the effects of the annulled decision shall be considered as definitive or to maintain its effects until a new decision is founded on an appropriate legal basis (Article 264 TFEU). This would ensure that previous transfers of pirates to Mauritian courts are unaffected by the Court’s ruling.

Moreover, the adoption of the proper legal basis and procedure by the Council will also ensure that the EU avoids being in breach of its commitments under the agreement. Although the annulment of the EU internal act concluding the agreement cannot per se have any consequences with respect to Mauritius, it could impair EU capacity to comply with the obligations arising from the agreement, as a result of which the EU could incur international responsibility.

Indeed, the EU remains responsible under international law for the performance of the treaty and could not invoke its internal law as justification for its failure to perform the agreement (Article 27 VCLTIOs ). In addition, it could not invoke the fact that its consent to be bound by the agreement was invalid since it was expressed in violation of its internal rules regarding competence to conclude treaties, in order to avoid international responsibility (Article 46 VCLTIOs).

Although the VCLTIOs has not yet entered into force, the corresponding rules regarding Internal law and observance of treaties and Provisions of internal law regarding competence to conclude treaties contained in its sister Convention (Articles 27 and 46 VCLT) may be accepted as representing customary law, which is binding for the EU.  

Therefore, in light of the importance of the security of legal relations and the irrelevance of internal questions regarding the procedure used for the conclusion of a treaty, the responsibility of the EU for the performance of the transfer agreement cannot be affected by the annulment of the Council decision.

 

 

Piracy in Corsica?

The French press reported recently a piracy attack off the South-West coast of Corsica, a French island in the Mediterranean Sea.  According to the press reports, the attack took place on February 16th, and the victim vessel was a French yacht, with three passengers (including the yacht owner) on board.  The four attackers were allegedly both masked and armed; they managed to quickly neutralize the yacht passengers and to lock them up inside the cabin.  After about three hours, the attackers forced the victims to embark on a smaller life boat (which had been attached to the larger yacht), and then abandoned them on the sea.  Luckily for the victims, they managed to reach the southern coast of Corsica safely, where they reported the attack.

While the reasons for the attack remain uncertain as of now, it is possible that the attackers were part of a yacht trafficking ring.  Such a ring existed during the last decade, between southern France, Corsica, and Tunisia, before it was successfully dismantled through law enforcement operations.  Piracy attacks in the Mediterranean Sea are of course virtually inexistent.  It was thus surprising to hear about reports of this attack.

Legally speaking, it is unclear whether this attack can properly be classified as “piracy.”  Under the United Nations Convention on the Law of the Sea, an act of piracy has to be committed on the high seas – waters beyond the 12-nautical-mile territorial sea of the littoral state.  In this instance, the French press did not specify where the attack took place and whether it occurred in the French territorial sea or on the high seas (the article mentioned that the attack took place “near” the coast of Corsica).  If the attack did take place on the high seas, then we would be witnessing the incidence of piracy off the coast of France – something that the world has not seen in several centuries!

New ISO Standard for Private Maritime Security Companies

It is my pleasure to welcome a guest post by Dirk Siebels, a PhD candidate at the Greenwich Maritime Institute in London.  Dirk has been working with the Security Association for the Maritime Industry and the Marshall Islands shipping registry, conducting research on the performance of armed guards on board merchant vessels.  In this post, Dirk discusses new ISO standards for private maritime security companies.  Welcome Dirk!

Since the statistics peaked in 2011, the number of piracy incidents off Somalia has dropped from 237 to just 15 in 2013.  Nonetheless, private maritime security companies (PMSCs) are by now an integral part of the shipping industry and it is estimated that there have been about 20,000 passages with armed guards through the High-Risk Area in the Indian Ocean in 2013. Demand for PMSCs in other regions, most notably in West Africa, is also rising and ship operators are eagerly waiting for the new ISO/PAS 28007 standard.

 During a seminar organised by the Security Association for the Maritime Industry (SAMI) in January 2014, the representative from the United Kingdom Accreditation Service (UKAS) underlined that the first certification bodies for the new standard will be accredited over the coming weeks. Currently, four companies are waiting for their certificates which will enable them to audit PMSCs against the new ISO standard.

 While the number of potential auditors may be small compared to other ISO standards, it is important to note that the market is limited. Nevertheless, PMSCs will be able to choose between different auditors. Other companies could enter the market at any point, based on their ability to identify business opportunities and to pass UKAS’s thorough accreditation process.

 For the time being, the new ISO standard is a so-called Publicly Available Specification (PAS) which may be issued when there is an urgent market requirement for such a document. After further reviews, a PAS can be transformed into a regular international standard.

 In this case, the market requirement for ISO/PAS 28007 came from the shipping industry as many companies where looking for a reliable standard. While armed security guards on civilian vessels would have been unthinkable just a few years ago, there has been a sea change within the industry. Ship owners and operators have realised that armed guards are not just providing protection. Other benefits are just as important, most notably an added sense of confidence felt by crews and captains. Many ship operators would even like to transfer the successful PMSC model from the Indian Ocean to other regions with security problems.

 The legal environment in regions such as West Africa, however, is a lot more complex and has caused shipping association BIMCO to shelve its planned publication of an amended version of Guardcon, a standard contract for the employment of PMSCs. At the same time, BIMCO points out that the introduction of the new ISO standard is an important step forward. ISO/PAS 28007 will allow independent certification yet governments are still able to control critical functions.

 Over the past couple of years, the only international standard available to PMSCs was the International Code of Conduct for Private Security Service Providers (ICoC). While the ICoC Association is an independent organisation based in Switzerland, the US government has played a major role in drafting the document itself.

 Various incidents during which private security contractors killed or injured civilians in Iraq and Afghanistan had made it necessary to introduce some form of quality-control for private security providers. Influenced by such developments, the ICoC was first and foremost focussed on land-based security. It has since been developed into an ASIS standard which has been adopted by the US Department of Defense in May 2012, and the United Kingdom in December 2012 for all future contracts with private security companies.

 Neither the ICoC nor the ASIS standard are really applicable to the maritime environment though. For the shipping industry, ISO/PAS 28007 therefore looks set to become the most important global standard.

 It remains to be seen whether flag states will require ISO certification or use it to replace licensing requirements they have introduced in the recent past. Germany provides an interesting example for a unique licensing regime; as of 18 February 2014, only eight companies (six of them based in Germany) had completed the necessary process.

 The large majority of PMSCs would rather spend money and resources on certification against ISO requirements. It seems to be a good bet as the shipping industry has been looking for such a standard and industry requirements have been very important for political decisions in the most important flag states over the past years.

Dismissal of Charges in U.S. v. Ali

United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.  The prosecutorial decision not to pursue the Ali case may come as an unpleasant surprise to come, or as confirmation to others that this controversial case should never have been initiated to begin with. 

Much has been written in the academic blogosphere about this case (see here and here and here).  To sum up, Ali was a former Somaliland education minister, who had spent much of his adult life in the United States.  After a Danish ship, the M/V CEC Future, was captured by Somali pirates in late 2008, Ali boarded the ship and translated the pirates’ demands to the ship owners.  The crux of the Ali case (at least factually) centers around his role in this piracy incident: was Ali merely a translator, contributing toward the hostages’ eventual release by enabling negotiation with the kidnappers, or was he a pirate himself, helping his fellow criminals to enrich themselves further through another successful ransom request? It is undisputed that Ali boarded the kidnapped vessel after the violent piracy incident took place, and it is undisputed that Ali boarded the vessel while the vessel was docked in Somali territorial waters.  Thus, Ali’s alleged act of facilitating piracy would have been committed in the Somali territorial waters, and not on the high seas. Despite such unusual “piracy” conduct by Ali, the United States government decided to build a case against him and to essentially ruse him onto American soil.  Toward this end, Ali was invited to an education conference in North Carolina, and promptly arrested on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.  Jon Bellish, in a prior post, has summarized the procedural posture of the Ali case in American courts as follows:

After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.

Following the DC Circuit court opinion, Ali was tried in the district court on charges that survived the appellate challenge, including hostage taking, we well as piracy facilitation, despite the fact, as mentioned above, that the act of facilitation did not take place on the high seas.  Perhaps because of such unusual factual circumstances surrounding Ali’s alleged piracy conduct, his strange arrival to the United States, as well as because of the difficult legal argument necessary in order to convict Ali, the jury found him not guilty of the charge of piracy, but deadlocked on the less serious charge of hostage-taking.  Prosecutors initially sought a retrial on the hostage-taking charges, but just announced a few weeks ago that they would not proceed with the retrial, because of constitutional concerns that Ali was being subjected to double-jeopardy (because the re-filed charges relied on the same basic facts). 

All of this leads me to my initial point – that perhaps Ali should never have been prosecuted in the United States to begin with.  The case was legally challenging from the outset.  Ali was a universal jurisdiction case – a prosecution of an alleged piracy facilitator who had no ties to the United States, and who could only be reached through universal jurisdiction, which has historically been available for the crime of piracy.  But in order to prove that Ali had committed piracy (so that he could be prosecuted under universal jurisdiction), American prosecutors had to show that Ali’s facilitative act under Article 101(c) of UNCLOS need not have occurred on the high seas, as long as the underlying act of piracy (committed against the Danish vessel) had itself occurred on the high seas.  In other words, Ali could be convicted of facilitating piracy on dry land or in Somali territorial waters under the concept of universal jurisdiction.  Accepting this argument is difficult to say the least, and commentators had suggested that a high seas requirement for piracy facilitation should always be required.  Factually, the case was difficult as well.  While it was undisputed that Ali had helped negotiated the ransom demand, it was unclear as to what Ali’s role in the piracy endeavor (if any) had been.  Under the Ali precedent, would insurance company mediators, negotiating between pirates and the shipping company, also be subject to universal jurisdiction for facilitating piracy? What about pilots who fly planes which drop the ransom money? And what about the ruse orchestrated by United States’ prosecutors to entice Ali into coming to America? The district court judge herself had been outraged by the prosecutorial conduct, and while this would not be ground for dismissal under American law, most of us agree that this kind of governmental and prosecutorial conduct portrays the United States in a negative diplomatic and political light.  My argument, for the purposes of this post, is not to claim that the Ali appellate court was correct or incorrect, or to try to shed light on what Ali had actually done in this particular piracy incident; instead, let me point out that legally and factually difficult cases, like Ali, should not be the subject of expensive prosecutions thousands of miles away from Somali shores.  Many of us will agree that combatting piracy is a global challenge which involves, among other strategies, creating multiple prosecutorial venues where suspected pirates are routinely charged and convicted (if found guilty).  But the international community actors involved in fighting piracy have limited resources, limited time, and limited attention to this global problem.  Instead of pursuing piracy negotiators like Ali, whose guilt may be doubtful and whose prosecution could only succeed through a stretch of the universal jurisdiction concept, why don’t we focus on those who actually engage in piracy attacks, or, more importantly, on those who plan and finance piracy attacks? Finally, now that Ali’s prosecution has come to a halt, we have to ask ourselves what will happen to this defendant – now that he is on American soil, will he apply for political asylum in the United States or attempt to stay here on other grounds (something that our prosecutors clearly did not have in mind when they lured Ali to America?) The risk of unsuccessfully prosecuting Ali was never worth the potential benefit.