New Captain(s) of the Ship

CHO_circle_300dpiJanuary marks the third anniversary of Communis Hostis Omnium. This blog originated with an idea to examine the legal issues arising from the growth of maritime piracy, in particular off the coast of Somalia that had reached its peak in 2010. It has been a labor of love for both Matteo and I, representing many nights and weekends of work. And its growth has been not inconsiderable from a modest blog with a readership of one into an important source of legal analysis in a field that continues to harbor lacunae and unresolved political issues. Unfortunately, our other professional responsibilities have not permitted us to maintain the consistent and thorough analysis that we would have liked and it appears time to move on.

Fortuitously, two highly qualified lawyers have stepped forward and agreed to take the helm. From 1 January 2014, Milena Sterio and Michael Scharf will be the new Editors-in-Chief of Communis Hostis Omnium. They bring to this project a strong knowledge of the law of piracy and practical experience in the field. Milena is a Professor at the Cleveland-Marshall College of Law.  She has published widely on international law topics, including piracy. Michael is the Acting Dean of Case Western University Law School and is a recognized expert in international criminal law. Both Milena and Michael have participated in UN Contact Group on Piracy meetings and have assisted in fact-finding missions in Seychelles. Our hope is that they will be able to continue to grow this site’s readership and depth of coverage. We welcome them both aboard!

Matteo and I will continue to post on Communis Hostis Omnium as contributing authors periodically and when time allows. But for the moment, we sign off and wish Milena and Michael the best of luck on this new endeavor!

Specialized Chambers to Prosecute Kingpins – Long promised

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre whose objective is to  create sustainable regional capability and capability to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre (RAPPICC) in Seychelles, the objective of which is to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

As we have reported here, here, and here, the UN Security Council has long expressed its interest in the creation of specialized chambers to prosecute pirates in the East African region. On 18 November 2013, the UN Security Council again raised the prospect of creating such chambers (Resolution 2125), following the UN Secretary General’s report on piracy off the coast of Somalia of 21 October 2013 (UNSG Report), which Matteo analysed here. This comes on the heels of a donor conference at which substantial funds were pledged to assist Somalia. It also comes as the failure to prosecute pirate kingpins has become increasingly conspicuous.

Background

In October 2011, the UN Security Council decided in Resolution 2015: “to continue its consideration, as a matter of urgency, without prejudice to any further steps to ensure that pirates are held accountable, of the establishment of specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support,” and requested the UN Secretary General to report on the modalities for the creation of such specialized chambers. The UNSG provided his report in January 2012 indicating the costs and estimated capacity of creating specialized chambers in several regional states and regions of Somalia, including Kenya, Tanzania, Seychelles, Mauritius, Puntland and Somaliland. Since that time, prosecutions have indeed continued in each of these countries, with some (mainly Kenya and Seychelles) bearing the burden. However, no specialized chambers have been created to date.

Backlog of Cases

The UNSG Report notes that 53 suspects are currently on remand for trial as pirates in Mauritius, Kenya and Seychelles. This is despite the significant contribution of the international community into prosecution and incarceration of pirates in the regular court systems of states such as Kenya, Mauritius and Seychelles, the most prominent being UNODC’s counter-piracy programme valued at $60 million. Resolution 2125 laments that “the continuing limited capacity and domestic legislation to facilitate the custody and prosecution of suspected pirates after their capture has hindered more robust international action against the pirates.” This translates to a backlog of cases in the judiciaries relied upon by the international community to prosecute such cases. As compared with regular criminal courts in these countries which suffer from significant backlogs, it is hoped that specialized piracy chambers with particularized knowledge of piracy cases would permit more efficient prosecutions.

Reduction but threat of resurgence

Apart from the persistent backlog of cases for past pirate attacks, the UNSG and UNSC indicate that the conditions are ripe for attacks to surge once again. While acknowledging the significant reduction of pirate attacks off the coast of Somalia, Resolution 2125 warns that this situation is reversible. More specifically, the UNSG concludes that “the situation with regard to the rule of law, security, development and governance in Somalia that has allowed piracy to arise has not changed sufficiently so as to deter criminals from attacking ships and holding seafarers hostage for ransom. Pirate attacks may increase if the international naval presence is reduced or if commercial vessels relax their self-protection measures.” He further estimates that due to the proceeds already collected from prior ransoms, pirates retain the capacity to attack vessels.  Finally, he indicates that “several pirate financiers are engaging in other criminal activities as well and that they have built significant paramilitary capacities on land, and thus have the potential to destabilize the region.” In short, the UNSG appears to call for continued action on piracy until pirate criminal enterprises have been dismantled. This would keep the international community busy for the foreseeable future.

Kingpins the focus

Resolution 2125 and the UNSG report discuss all pirate perpetrators, but the clear focus of both is on pirate kingpins, the failure to prosecute such high-level perpetrators, and the dangers this creates for the broader goal of stabilizing Somalia. The UNSG notes that “neither the Government of Somalia nor the Puntland administration nor any other local authority had seriously investigated and prosecuted any senior pirate leaders, financiers, negotiators or facilitators, and that the leadership of the principal piracy networks and their associates continued to enjoy impunity and had not been hindered in their ability to travel or transfer funds.” Resolution 2125 emphasizes that if specialized piracy courts are created, they must have jurisdiction over “anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who plan, organize, facilitate, or illicitly finance or profit from such attack.” The focus is clear.

As we noted here, the identities of pirate kingpins are well-known. The difficulty has been tracing proceeds, obtaining evidence, and bringing that evidence to court (and likely gaining custody of the Accused). There have been efforts to foster international cooperation to prosecute pirates. Notably, the Regional Anti-Piracy Prosecution & Intelligence Coordination Centre (RAPPICC) in Seychelles promises to “bring together experts from around the world to share intelligence and information which will help to tackle the king-pins and financiers of piracy.” Yet, despite the significant international resources brought to bear on anti-piracy operations, including the deployment of navies and international assistance for local prosecutions, pirate kingpins have not been brought to justice.

Indeed the creation of such chambers could have little purpose, but for the prosecution of pirate kingpins considering (1) there are few new arrests of pirates as reported attacks are insubstantial and (2) it is completely unfeasible to prosecute low level offenders who have been caught and released since the evidence against them is destroyed as a matter of course (see Matteo’s post here). Perhaps the rationale behind supporting the specialized piracy chambers is that a complex prosecution of a pirate financier and pirate leader will be more feasible in a court with particularized knowledge and resources devoted to such trials.

Conclusion

To date, there appears to be a split in the UNSC on the issue of specialized piracy chambers, with some enthusiastically supporting the idea and others permitting its exploration but little else. In Resolution 2125, the UNSC notes with appreciation the substantial pledges of support at a recent donor conference for Somalia and reiterates its decision to continue to consider the establishment of “specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support.” Perhaps because donors have been forthcoming, the UNSC has chosen to re-launch the 2011 idea of specialized chambers. The UNSC also requests states including Somalia and other states in the region to report back on on their efforts to establish jurisdiction and cooperation in the investigation and prosecution of piracy.” Since specialized piracy chambers have been discussed for over two years with only a feasibility study to show for it, whether such chambers will come to fruition is uncertain. Particularly as pirate attacks are at a low ebb, donors may be reluctant to shell out cash for such a focused activity especially outside of Somalia (such as in Kenya and Seychelles) when Somalia is in dire need of funds in all sectors of its government.

Negotiator Not a Pirate, Hung-jury on Hostage Taking Charges

Ali Mohamed Ali

Ali Mohamed Ali

There have been further developments in the case of Ali Mohamed Ali which we have followed here, here, and here. Two weeks ago a jury acquitted Ali of the piracy charges. Of course, juries aren’t compelled to give the reasons for their decisions, but the competing narratives indicate that the crucial issue was one of mens rea, whether Ali intended to personally profit from the negotiation or whether he instead was attempting to help free the captives. The jury was having trouble reaching a verdict on the separate hostage-taking charges and has now indicated that it could not reach unanimity, thereby rendering a mistrial. The prosecution will likely indicate next week whether it intends to retry the latter charges. But double jeopardy prevents a retrial on the piracy charges.

As an aside, an interesting point of law developed prior to the jury verdict regarding the legal requirement that piracy be perpetrated on the high seas. In this decision, the US district court found, based on the continuing offence doctrine, that “so long as the illegal acts of violence, detention, or depredation for private ends continue, the offense of piracy continues even after the perpetrators leave the high seas.” There will be no appeal of this decision since Ali was acquitted of the piracy charge.

 

New Article on Aiding and Abetting Piracy

piracy renaissance table of contents

My article on intentional facilitation and incitement to piracy has at long last been published in the Florida Journal for International Law. It argues that general principles of law as discerned from the jurisprudence of international criminal tribunals may serve as the basis for the application of appropriate modes of responsibility for piracy. Ultimately, as applied to two piracy cases in the U.S. it concludes that aiding and abetting piracy may be perpetrated on Somali territory or territorial waters and still be subject to jurisdiction within the U.S. In view of the time-lapse between initial submission and publication (as is often the case in law review publishing), the editors graciously allowed me to append a postscript, updating the progress of two appeals in separate circuit courts which agreed in large part with my conclusions.

Reprinted with permission from the Florida Journal of International Law. 

The 4th Circuit Agrees – Kingpins on Land are Pirates Too

Weeks after the DC Circuit issued its opinion in US v. Ali, finding pirate aiders and abettors who never enter the high seas to be equally guilty of piracy, the 4th Circuit has issued its opinion in US v. Shibin reaching the same result. It held:

[UNCLOS] Article 101 reaches all the piratical conduct, wherever carried out, so long as the acts specified in Article 101(a) are carried out on the high seas. We thus hold that conduct violating Article 101(c) does not have to be carried out on the high seas, but it must incite or intentionally facilitate acts committed against ships, persons, and property on the high seas.

The 4th Circuit relies in part on the DC Circuit opinion in Ali, but it also points to recent UN Security Council resolutions encouraging states to investigate and prosecute those who illicitly finance, plan, organize, or unlawfully profit from pirate attacks off the coast of Somalia. The 4th Circuit panel states that “Clearly, those who “finance, plan, organize, or unlawfully profit” from piracy do not do so on the high seas.”

Let us take a moment to take a broader view of the policy implications of these legal results. Both Shibin and Ali raise interesting points of law that will need to be resolved before high-level pirates are prosecuted in national courts. But it bears emphasis that there remains a level of the pirate hierarchy that continues to enjoy impunity. The financiers of these operations and their criminal masterminds have not been indicted in any jurisdiction, despite international efforts to trace funds and to bring inciters and facilitators to justice. If the courts in Ali and Shibin had reached the opposite result, it would limit the prosecution of pirate aiders and abettors to the jurisdiction where the facilitator acted. In these cases, that state is Somalia. Despite some recent improvements, it is not clear that Somalia’s criminal justice system is prepared for complex prosecutions of financial criminals or for criminal masterminds who never set foot on pirate ships. Thus a contrary legal result in these cases would have undermined the transnational system of criminal justice that has been adopted to address Somali piracy.

Ali post-script – Potential Rehearing en banc

As readers will note from the last two posts, the Federal Court of Appeals in Washington DC ruled in US v. Ali, that piracy may include aiding and abetting committed from shore (i.e. not on the high seas). As per custom, a three-judge panel issued this ruling. Ali’s attorney has now filed a Petition for Rehearing en banc (by the entire court). Federal Courts of Appeal are reluctant to grant rehearing en banc because of the drain on judicial resources. This is especially true in the DC Circuit which has only granted rehearing in a single case in each of the last few terms. Nonetheless, the DC Circuit has indicated some interested in Ali’s petition for rehearing as last week it ordered the government to respond. Rehearing of the case could result in the same or different outcome. But it would also raise the profile of the case for possible hearing at the US Supreme Court.

USAID Budget to Somalia Proposed to Double

As we noted here, some within the US Congress are pushing for the US Agency for International Development budget allocation to Somalia to be increased. A February visit to the region by USAID’s top official, highlights this new emphasis. Although, it is likely that USAID will experience some significant budget cuts in the coming year due to austerity measures and a general distaste for foreign assistance in difficult economic times in the U.S.,  the pain will not be felt equally by all USAID projects. Under President Obama’s proposed 2014 fiscal year budget, Iraq will experience the largest reduction in USAID funding down 91 percent to $22.5 million. The flip side of that coin are countries like Myanmar, with a 62 percent increase to $75 million.

Importantly, USAID’s Somalia projects will double in size to close to $50 million.  This is a significant sum of money to allocate to a country with limited structural and institutional capacity. As noted in a summary of the administration’s proposed foreign affairs budget:

Somalia ($49.4 million): The end of the political transition in 2012 and the formal recognition of the Government of Somalia in January 2013 represent the beginning of a new political phase. The FY 2014 request will assist Somalis in reestablishing viable governance institutions, which are essential to alleviating humanitarian suffering in the broader Horn of Africa. Increased resources will focus on stabilization and reconciliation efforts; nascent political party development; civil society efforts to promote peace, good governance, and consensus-building; and programs in education, livelihoods, and economic growth.

In addition to this sum, is the administration’s proposed contribution to the UN Peacekeeping operation in Somalia:

The FY 2014 request also includes $136.6 million for Support Office for the African Union Mission in Somalia (UNSOA). UNSOA will continue to provide a logistical support package for the Africa Union Mission in Somalia (AMISOM) for up to a maximum of 17,731 uniformed personnel including the reimbursement of contingent-owned equipment including force enablers and multipliers. The logistics package provides equipment and support services similar to that provided for a United Nations 48 peacekeeping operation. UNSOA is working very closely with the UN Political Office for Somalia (UNPOS) and AMISOM to help create the necessary political and security conditions in Somalia, working in concert with the international community and other UN bodies.

It is not entirely clear, but there may be an additional line of expenditures for contributions to AMISOM:

Somalia ($70 million): FY 2014 funds will be used to continue voluntary support to AMISOM, including training and advisory services, equipment, and transportation of forces from current and new troop-contributing countries. Given the newly recognized government of Somalia and the security gains and expansion made by AMISOM, increased support to the national Somali military forces is critically important. Accordingly, PKO funds will be used to professionalize and provide operational support to Somali security forces, to ensure their capability in contributing to national peace and security in support of the international peace process efforts, and as part of a multi-sector approach to post-conflict security sector reform. Funds to pay the United States’ portion of the UN assessment for support of the UN Support Office for the AMISOM (UNSOA) are being requested in the Contributions to International Peacekeeping Activities account.

Evidently, the U.S. government sees promise in the recent governmental reforms in Somalia and hopes to support reform efforts with significant contributions. Peacekeeping funds are intended to foreclose any gains by the terrorist group al Shabaab. However, the USAID designated funds are to be focused more on job-creation and improving the economy. These are the efforts most important to preventing the spread of piracy at its roots, before young, unemployed Somalis can be tempted to seek their fortunes at sea. Although the proposed budget must be approved by Congress, and there will likely be significant modifications in the coming months, I would venture that the proposed expenditures in Somalia will remain largely intact.