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. 

 

Piracy in West Africa: A New Model (Unfortunately)?

While piracy attacks seem to be on the decline off the coast of Somalia, pirates may be warming up in West Africa.  As I and others have blogged about before, the Gulf of Guinea, as well the Nigerian Delta, have recently turned into hotbeds of piracy.  The Nigerian Delta in particular, because of vast amounts of oil production which takes place there annually, has attracted potential pirates interested in seizing oil and selling it for profit on the black market.  Recently, such piratical activity has expanded farther south, to the coast of Angola, signaling the rise of a new kind of piracy, focused on stealing oil as opposed to kidnapping crews for ransom.  Regardless of its goals, this new model of piracy could severely threaten the security of West African waters and could negatively impact economic stability of the region, dependent on oil and safe transportation.

On January 18th, a Greek-owned and Liberian-flagged oil tanker, Kerala, disappeared in Angolan waters.  Nobody knows for certain what happened to the ship, but a piracy incident was suspected because just before Kerala’s disappearance, maritime security firms had began warning of a suspicious, 200-ton tugboat sailing in Angolan waters off the Angolan coast.  Kerala’s Greek owners re-established contact with the vessel on January 26th, when they announced that the vessel had indeed been hijacked, that a crew member had been hurt, and that the vessel was on its way to a Ghana port. Moreover, it was announced that Kerala‘s cargo – more than 60,000 tons of diesel – had been stolen.  In a surprising twist of unfolding events, the Angolan Navy denied that a hijacking had taken place.  Instead, Angolan officials contended that the Kerala crew had faked the hijacking, and had decided to sail toward Nigerian waters voluntarily.  Maritime security experts doubt the accuracy of the Angolan version, and believe that a piracy incident did in fact take place, because the theft of oil, which disappeared from the Kerala, closely resembles the new piracy model developing off the coast of West Africa.

The West African piracy model is different from its Somali counter-part.  In Somalia, pirates most often attacked vessels in order to hijack the ship and kidnap its crew, and then demand a multi-million dollar ransom.  In West Africa, pirates engage in sharp and often violent attacks on oil tankers, in order to seize the oil and sell it on the local black market.  West African pirates are generally not interested in kidnapping the crew, because they cannot easily dock hijacked ships in West African coastal states, where law enforcement and coast guard officials would most likely arrest them.  To the contrary, because of the rampant lawlessness which has plagued Somalia for over two decades, pirates were able to dock ships with impunity in Somali ports and to hold kidnapped crewmembers for months without fearing arrest.  In Somalia, most attacks occurred on the high seas, enabling piracy-combatting nations which had been patrolling the Indian Ocean to act against the pirates: international treaty law specifically authorizes countries to arrest pirates on the high seas.  Moreover, in the Somali context, the United Nations Security Council had passed numerous resolutions authorizing patrolling nations to enter Somali territorial waters, and even Somali land, when going after pirates.  The situation is starkly different in West Africa.  First, some “piracy” attacks in West Africa have taken place in the territorial waters of countries like Nigeria, Angola, or Benin: these incidents would not qualify as “piracy” under international law because they were not committed on the high seas (an element present in the definition of piracy found in the United Nations Convention on the Law of the Sea).  If a piracy-like incident occurs in the territorial waters of a West African nation, other piracy-combatting nations do not have authority to act, cannot chase the suspected pirates, cannot apprehend them, and cannot defend the victim vessel.  Second, in most incidents, West African pirates’ modus operandi is as follows: pirates offload relatively small amounts of captured product (typically oil) onto costal vessels once the hijacked ship is the pirates’ home country’s territorial waters.  International patrols are generally unable to follow suspected pirates into West African nations’ territorial waters, because doing so would breach such countries’ sovereignty.  This enables pirates in West Africa to seek refuge in their own waters.  In the Kerala incident, where the hijacked vessel was likely hauled to Nigerian waters, where the stolen oil was most likely offloaded, the theft amounted to about 4 million gallons. According to United Nations reports, pirates could net as much $30 million per year by selling stolen oil on the local black markets.  Many experts believe that West African piracy, and especially attacks which occur in the Nigerian Delta, are simply an extension of domestic oil theft.  This piracy model may be even more dangerous than the Somali one, and the international community may need to shift focus from East to West Africa.

Somali pirates, notwithstanding violent incidents and Captain Phillips, generally avoided harming crewmembers, because they needed to extract ransom money in exchange for releasing alive and well kidnapped seafarers.  West African pirates, because they are after the oil and not crewmembers, do not care about not harming anybody, as long as they can get their hands on the ship cargo.  Moreover, because of the lawlessness of Somalia and its failed statehood, the international community had authorization, through Security Council resolutions, to breach Somali territorial sovereignty and to engage in law enforcement-type operations geared toward neutralizing piracy in Somali waters and on Somali land.  Many experts agree that the sharp decline in Somali piracy incidents is due in part to the ability of piracy-fighting nations to engage in this type of widespread  maritime operations.  In other words, Somali pirates were unable to hide in Somali waters or on Somali land.  This scenario is unlikely to happen in West Africa, where nations enjoy full sovereignty, and where anti-piracy operations will likely be limited to the high seas.  In addition, off the coast of Somalia, many ship owner started employing  private armed guards, which also contributed significantly to the decline in the number of piracy attacks.  West African states are unlikely to allow the use of private armed guards on board vessels sailing in their waters, and vessels may only be allowed to use such guards on the high seas.  In sum, West African pirates may be more dangerous, and combatting them may represent a more complex issue than the one which originally presented itself off the coast of Somalia. 

Some anti-piracy efforts have been taking place in West Africa.  Nigeria has pledged to combat oil theft and piracy, and many European Union nations, which routinely import oil from the region, have engaged in limited anti-piracy programs.  However, it seems that two major super-powers, the United States and China, are not likely to dispatch their navies, the same way they did in the Indian Ocean.  For these reasons, it appears that while Somali pirates have buried their grappling hooks and ladders, West African pirates “may just be getting going.”  Unfortunately.

New Piracy Book from Cambridge University Press

I am excited to announce that Cambridge University Press will publish a new edited volume on maritime piracy.  “Prosecuting Maritime Piracy: Domestic Solutions to International Crime” will be edited by yours truly, Michael Scharf (Acting Dean and Professor at Case Western Reserve University School of Law) and Michael Newton (Professor at Vanderbilt Law School), and will appear in press later in 2014.  We will be posting more updated about the book, as well as discussions and blog posts about specific topics that the book will cover. 

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.