Round Two for the Ashland Defendants

The trial of the remaining five pirates accused of mistaking the U.S. Navy amphibious dock landing ship Ashland for a commercial tanker and attacking it in 2010 has restarted. Initially, the trial court dismissed the charges against the defendants under the 1820 case of United States v. Smith — defining piracy as “robbery at sea” — because the defendants never boarded the ship or attempted to steal anything. However, after the 4th Circuit endorsed the UNCLOS definition of piracy in United States v. Dire, the Ashland defendants are back in court.

USS Ashland

USS Ashland entering port in Florida (U.S. Navy photo by Scott Lehr)

Here is what the Norfolk-based Virginian-Pilot had to say about the case:

Prosecutors argue the men were pirates who mistook the amphibious dock landing ship for a commercial vessel.

Defense attorneys, however, claim they were merely lost at sea and trying to get the ship’s attention.

A jury trial for five of the men started Wednesday in U.S. District Court in Norfolk. Over the next week, prosecutors are expected to call to the stand sailors who were on the Virginia Beach-based Ashland at the time of the incident and a Somali man who was on the skiff and is now cooperating with authorities.

Jama Idle Ibrahim, also known as Jaamac Ciidle, pleaded guilty in August 2010 to attempting to plunder a vessel and two related charges. He was sentenced to 30 years in prison but could have his sentence reduced.

Due to the similarities between the case of the USS Ashland and that involving the USS Nicholas (which culminated in the Dire opinion), the defendants’ overall prospects do not look strong.

Liability for the Destruction of Suspected Pirate Skiffs?

In one of their latest reported joint anti-piracy operation, EUNAVFOR and Combined Task Force 151 announced the disruption of potential piracy attacks off the Somali coast. In November 2012, the Romanian frigate ROS Regele Ferdinand, under EUNAVFOR command, and Turkish warship TCG Gemlik, of Combined Task Force 151, apprehended nine suspected pirates at sea off the coast of Somalia. Earlier, a Swedish EUNAVFOR maritime patrol aircraft located the skiff at 420 nautical miles east of Mogadishu, an area known for pirate activities. At the scene, the TGC Gemlik sent a boarding team to intercept and search the suspected vessel, which for over an hour tried to evade capture. The suspected pirates were then embarked onto the ROS Regele Ferdinand for futher questioning and evidence collection to assess the possibility of their prosecution. No fishing supplies were found on board, while it remains unclear whether the suspects were armed. Shortly after their apprehension, the suspected pirates were released onto a Somali beach for lack of sufficient evidence to proceed to their prosecution. According to EUNAVFOR, despite the strong suspicion that it was a pirate boat, it was determined that there was not sufficient evidence to build a case and prosecute the suspected pirates, as they were not caught actually committing any crime. In additon, building a case against the suspects would be too time-consuming and onerous.

German frigate Hamburg sinks an abandoned skiff off the coast of Somalia. Credit: Christian Bundeswehr - Reuters

German frigate Hamburg sinks an abandoned skiff off the coast of SomaliaCredit: Christian Bundeswehr – Reuters

However, their skiff and other effects on board, including fuel and ladders, were instead destroyed. According to EUNAVFOR, this will prevent the suspected pirates from using the skiff to attack ships in the future. By means of example, this incident, by no means uncommon, raises the question of the diffferent evidentiary grounds and standards of proof for the prosecution of suspected pirates and the destruction of boats and equipment belonging to them. While the destruction of a pirate vessel can prevent the perpetration of further piracy attacks, the sinking of a fishing boat, however small, might put a strain to the fishermen’s livelihoods. Article 106 of UNCLOS (and Article 110(3)) provides for the possible liability for any loss or damange caused by the seizure of a suspected pirate ship when effected without adequate grounds.

Liability for seizure without adequate grounds

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

What are the grounds for the seizure and destruction of suspected pirate vessels and how do these differ from those provided for the arrest and prosecution of suspected pirates? In this regard, the legal framework applicable to the contrast to piracy, particularly in Somalia, needs some additional clarification and interpretation. UNCLOS explicitly provides only for a right of visit when there are reasonable grounds for suspecting that a ship is engaged in piracy (Article 110) and for a right of hot pursuit of a ship into the high seas only when there are good reasons to believe that a violation was committed (Article 111). The SUA Convention, its additional protocol, as well as the Djibouti Code of Conduct also contain references to various evidentiary thresholds, mainly reiterating the principles above contained in UNCLOS relevant to cooperation, rights of visit and liability for loss or damage.

In its recent Resolution 2077 (2012), approved after a significant debate on piracy as a threat to international peace and security, the Security Council renewed its call to continue the fight against piracy, including through the disposition of boats and other relevant equipment for which there are reasonable grounds for suspecting their use in the commission of piracy and armed robbery at sea:

10. Renews its call upon States and regional organizations that have the capacity to do so, to take part in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and international law, by deploying naval vessels, arms and military aircraft and through seizures and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use;

Indeed, EUNAVFOR’s seizures or disposals of suspected pirate skiff are premised upon the standard of “reasonabile grounds to suspect” (see also here). How to interpret, therefore, this standard? Resolution 2077, issued under Chapter VII of the UN Charter, also makes various references to the need to ensure compliance with international law and more particularly, “applicable human rights law” and “due process of law in accordance with international standards” in the pursuit of accountability for suspected pirates (see also paras 16-18 and 20). A review of international human rights and criminal law, while concerning crimes of a different nature, might thus provide for futher guidance. Various standards exist and, admittedly, some differ from others by mere semantics. Article 58(1) of the ICC Statute, relevant to the issuing of a warrant of arrests, provides for the evidentiary threshold of “reasonable grounds to believe”. This is significantly different from the threshold required for the confirmation of charges against an individual under Article 61(7) of the same Statute (“substantial grounds to believe”) or, obviously, for a conviction under Article 66(3) (“beyond reasonable doubt”). “Reasonable grounds to believe” are also required before the ICTY for the submission of an indictment by the Prosecutor or in relation to contempt proceedings (Articles 47 and 77(c) of the ICTY Rules of Procedure, respectively). The ICC Pre-Trial Chamber equated the “reasonable grounds to believe” standard to the “reasonable suspicion” standard under Article 5(1)(c) of the European Convention on Human Rights. Arguably, this comparaison appears questionable. Believing is a concept stronger than suspecting. However, while also relevant to arrest and detention, the ECHR determined that this standard consists of the existence of facts and information which would satisfy an objective observer that the person concerned may have committed a crime. The procedure for the submission of an indictment before the ICTY provides the following description of the meaning of “reasonable grounds”:

Reasonable grounds point to such facts and circumstances as would justify a reasonable or ordinarily prudent man to believe that a suspect has committed a crime. To constitute reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty of the crime. [...] It is sufficient that the Prosecutor has acted with caution, impartiality and diligence as a reasonably prudent prosecutor would under the circumstances to ascertain the truth of his suspicions. It is not necessary that he has double checked every possible piece of evidence, or investigated the crime personally, or instituted an enquiry into any special matter. [...] The evidence, therefore, need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant the belief that the suspect has committed the crime. The expression “sufficient evidence” is thus not synonymous with “conclusive evidence” or “evidence beyond reasonable doubt.” (Review of the Indictment against Ivica Rajic, Decision of 29 August 1995, Case no. IT-95-12)

Given the limited role played by EUNAVFOR in the investigation and prosecution of piracy, perhaps reference to recent international commissions of inquiry, whose standards are generally lower than those of purely judicial institutions, might also provide for additional guidance. For instance, the International Commission of Inquiry on Darfur acted upon a standard of “reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime” (para. 15).

Pirates or Fishermen? - Courtesy AP

Pirates or Fishermen? – Courtesy AP

Put plainly, the review above shows that a discrete amount of supporting evidence and the mere possibility, rather than the certainty, of the commission of a crime are therefore required to meet the “reasonable suspicion” standard encompassed in Resolution 2077 for the seizure and disposition of suspected pirate skiffs. It is, arguably, an extremely low standard but it demarcates the basic threshold for piracy-disruption activities. Suspecting the commission of a crime, however, falls a long way from having demonstrable proof. While this standard might also be akin to that required for the arrest of a suspected pirate, those necessary to proceed to his investigation and prosecution are increasingly higher and still depend upon factors such as the quantity and the quality of the evidence, as well as the willingness of State actors to proceed. Finally, several questions remain on the suitability and susceptibility of claims of unlawful destruction of vessels to be brought before Somali authorities when adequated grounds for such destruction are missing or in doubt.

Private Security Liability under the Alien Tort Statute

Hasan Abdullah Quanas, a Yemeni fisherman, stands at the prow of the fishing boat on which his nephew Mohammed Ali Quanas was killed by shots fired from the Nordic Fighter tanker in the Red Sea on Aug. 3, 2011. Photo: Alan Katz

There has been a long discussion concerning if and how to regulate private security contractors hired to protect merchant vessels against pirates. See e.g. here and here. Only last week, the Security Council emphasized in the Presidential Statement issued after its debate on piracy that it “encourage[d] flag States and port States to further consider the development of safety and security measures onboard vessels, including regulations for the deployment of PCASP [privately contracted armed security personnel] on board ships through a consultative process, including through International Maritime Organization and International Standards Organization.”

As noted by Christine, two incidents in particular have raised the specter that innocent fishermen have been killed by PMSCs (Private Military and Private Security Companies)(the term we have used on this site). One incident involved a vessel protection detachment (VPD) of Italian special forces who killed two Indian fishermen believing them to be pirates. See here and here. Another incident involved the death of a Yemeni fisherman allegedly at the hands of a Russian VPD. As to the latter incident, it was reported:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.

“He was killed while he was holding some dough for dinner,” says Quanas’s uncle, Hasan Abdullah Quanas, who was in the prow and saw his nephew fall. Hasan abandoned fishing after the shooting for fear that he too could become collateral damage in the increasingly violent fight to tame piracy on the high seas.

These are some of the few incidents that have been reported, but there are very likely more incidents where PMSCs or VPDs have mistakenly fired upon, injured, or killed innocents on the high seas. Presently, a ship’s flag state regulates the conduct of PMSCs and VPDs aboard ships on the high seas. There is no universally binding code of conduct, although the IMB has published interim guidelines. Nonetheless, PMSCs are potentially liable for acts of piracy for the killing of fishermen based on universal jurisdiction in the United States.

As many readers know, the Alien Tort Statute in the United States authorizes civil suit in U.S. federal courts against individuals (and perhaps corporations) who have violated the law of nations. The Alien Tort Statute has generally been used to pursue perpetrators of mass human rights violations. Although the drafting history of the statute is scarce and has made it very difficult to ascertain the original intent of Congress in adopting the statute, many are of the view that the Alien Tort Statute was initially intended to cover, at least, acts of piracy. Professor Alfred Rubin, in his treaty on the law of piracy, notes that the original intent was to provide a basis for civil suit against pirates:

[In 1792, US Attorney General Randolph envisaged the Alien Tort Statute to be a] supplement to criminal process to permit the victim of a wrongful taking aboard to recover his property when the tort law of the place of taking and the tort law of the United States coincided and the taker or the property was in the territorial jurisdiction of American courts. It would have had obvious applicability to aliens seeking to recover their goods from “pirates” as well as from those taking their property aboard, but seems to have rested on Blackstone’s naturalist conception of the ‘law of nations’.

In other words, the original intent of the Alien Tort Statute was to permit civil suit against pirates in US federal court. The law of nations defines piracy as any illegal acts of violence committed for private ends by the crew or the passengers of a private ship and directed against another ship (UNCLOS Art. 101(1)(a)). An act of violence by a PMSC against fishermen on the high seas would satisfy this definition. Therefore, PMSC’s are themselves liable for acts of piracy if they mistakenly injure or kill fishermen. Further, the Alien Tort Statute provides jurisdiction in US Federal Court to seek compensation for such illegal acts.

Acts of violence by a VPD might not fall within this definition since VPDs are state-sponsored and therefore precluded by the “private ends” requirement of the piracy definition. However, PMSCs are not state-sponsored. Another question is whether the law of self-defence may authorize some acts of violence against ships believed to be carrying pirates. On this point, it has been suggested that the permissibility of self-defence against possible pirates is determined by reference to the subjective intent of the private security detail. One proposed self-defence guideline provides, “A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.” (emphasis added).

I am sceptical that this formulation of self-defence is comprehensive and inclusive of general principles of law as understood by the major legal systems of the world. See here. It is more likely an expression of black letter law from the British common law system. In any event, under most systems of law, self-defence must be proportionate to the danger posed. The question remains whether the objective fact that an approaching boat is composed of unarmed fishermen would preclude self-defence as a justification for such conduct.

Another possible obstacle is a jurisdictional one. Currently before the US Supreme Court is the question whether there must be some nexus with the United States, in addition to the requirements of universal jurisdiction, to permit suits based on the Alien Tort Statute. This might be satisfied if an act of violence by a PMSC were committed against an American ship, seafarer, or perhaps even cargo while on the high seas or if they were committed by an American PMSC. If the US Supreme Court were to require such a nexus, it could preclude other civil suits with no connection to US interests.

In any event, PMSCs should be cognizant of the fact that they could be subject to civil and was as criminal penalties for causing damage to or killing individuals who are not in fact pirates on the high seas.

Weekly Piracy Review: United Nations Involvement

Romanian boarding team brings suspected pirates and their skiff back to the ROS Regele Ferdinand

Wednesday morning (November 21) a Swedish air patrol reported the presence of a suspicious skiff off the coast of Somalia. Romanian and Turkish warships approached the skiff, and the suspected pirates attempted to evade capture for about an hour. The warships were assisted in their pursuit by a Luxembourg helicopter, which easily kept track of the skiff. Finally, the Turkish team was able to search the boat while the nine suspected pirates were detained onboard the Romanian warship. The skiff  had been sighted earlier in known pirate waters, and no fishing supplies were found. Despite the strong suspicion that this was a pirate boat, the EU team determined that there was not sufficient evidence to build a case and prosecute these men, as they were not caught actually committing any crimes. The suspects were released onto a Somali beach on Thursday. After releasing the men EU naval forces sunk the skiff, causing these suspected pirates to lose their fuel, transportation, and ladders; and hopefully ensuring that these pirates will not be able to return to the seas in the near future. Rear Adm. Duncan Potts, the force’s operation commander, stated: “My message to the pirates is clear — we are watching you and we plan to capture you if you put to sea.”

Vietnamese boarding team re-captured hijacked Malaysian chemical tanker; arrested 11 suspected pirates

On November 17, a Malaysian-owned chemical tanker was hijacked in the South China Sea by a group of Indonesian pirates and taken to Vietnamese waters. After the International Maritime Bureau sent out an alert, Vietnamese authorities re-captured the vessel (which had been repainted and reflagged) and arrested the eleven suspected pirates on November 22. The nine crew members who were on board the hijacked tanker were forced into a life raft and released at sea on Wednesday. They were all rescued by local fishermen. This attack, the hijacking of a laden tanker, is said to be the first of its kind in the region in several years.

As previously reported here and here, Indian Ambassador Hardeep Singh Puri holds the UN Security Council presidency this month, and convened the first Security Council debate on the general threat to world peace and security posed by maritime piracy. Puri stated that forty-three Indian citizens are currently being held hostage by pirates, and it is estimated that piracy costs the maritime industry at least $6.6 billion annually for security. U.N. Deputy Secretary-General Jan Eliasson said that countries who are involved in counter-piracy operations need better communication with each other, and called for an agreement on the rules regulating the placement of private armed guards on merchant ships. U.S. Ambassador Susan Rice asserted that no ship carrying armed guards has been successfully hijacked, but the merits are controversial. Russian and Italian private guards have inadvertently fired on and killed fishermen off the coast of Somalia, mistakenly believing they were pirates approaching with the intent to board. French Ambassador Gerard Araud emphasized the greater deterrent effect that government-posted naval patrols have in warding off attacks. He also stressed the fact that about 80% of those arrested on suspicion of piracy are released without facing any prosecution, and that there is a need for a more efficient system of justice. More than twenty different nations have apprehended pirates off the coast of Somalia, and without a system in place to handle those arrested, many have simply been released back to Somalia. Though piracy is down this year, it is widely accepted that there must continue to be a strong focus on counter-piracy measures, or attacks will increase again.

Hardeep Singh Puri, Indian Ambassador to the UN, called for Security Council debate on piracy

The following day, the Security Council renewed authorizations put in place in 2008, which were developed to allow international cooperation in the fight against piracy. The Council emphasized the role Somalia is expected to play in these efforts and requested that the nation pass a complete set of anti-piracy laws. It also called on all member states to fully criminalize acts of piracy and assist Somalia in its implementation of more effective policies to combat the problem. The development of specialized anti-piracy courts in Somalia and other similarly affected states was termed a priority. South Africa’s representative, while agreeing that the adoption of these measures is an important step, emphasized that as a whole the efforts ought to include measures to combat the root causes of piracy in order to stop it before it starts.

The International Maritime Bureau reports that as of November 20, there have been 261 total attacks worldwide and twenty-six hijackings worldwide so far this year. Of those numbers, Somalia accounts for seventy-one incidents and thirteen hijackings, with 212 total hostages. Currently, Somali pirates hold nine vessels and 154 hostages.

Weekly Piracy Review: Costs & Sentencing

As reported here, in October pirates off the coast of Somalia fired at a small boat deployed from the HNLMS Rotterdam as part of its routine patrolling operations. After the ensuing fire-fight and rescue operation, the fishing boat’s captain revealed that he and his crew, along with their ship, had been hijacked off the coast of Oman several weeks earlier. The captain identified six of the people rescued from the water after the fishing boat caught fire as the pirates who took them hostage. Four of those men are now set to be prosecuted for their acts of piracy in Dutch court, as the marines they fired at from the Rotterdam were from the Netherlands. The two remaining suspected pirates were released, as they are minors. Two pirates and six of the original crew-members from the hijacked boat were wounded in this altercation, and one crew-member was killed. Two of the crew from the fishing boat are reportedly missing at this time.

Fifteen pirates were sentenced in the Republic of Seychelles on November 5 after being convicted for acts of piracy in attacking a merchant ship and abducting thirteen Iranian fishermen. The US praised Seychelles for their leadership in prosecuting those suspected of piracy, and reported that there have now been 631 convictions against pirates worldwide, with 98 of those coming from Seychelles. Additionally, 440 suspected pirates are currently facing justice in 21 countries.

After being held by Somali pirates since they were captured last November, two Seychelles fishermen were released early this week. The office of the President in Seychelles confirmed that after extensive effort and negotiations the two hostages had been released. A Somali pirate allegedly reported that a $3 million ransom was paid for their release, but this has not been confirmed. Since February 2009, pirates have hijacked five Seychelles boats, and eleven hostages have been kidnapped and subsequently released.

The Australian Navy sent its newly constructed warship on a 12,000 mile detour around Africa in order to avoid the possibility of being attacked by pirates while travelling through the dangerous waters in the Gulf of Aden. Though it likely would have taken about two weeks and $2 million less for the ship to make its journey from Spain to Australia through the Suez canal, the danger of encountering pirates on that route outweighed concerns regarding the time and expense of moving the ship to Australia. Other options were considered to thwart the possibility of pirate attacks, including sending a Navy frigate alongside the other ship and placing armed mercenaries onboard, but it was decided that the most effective method would simply be to take a safer route. That these measures were considered necessary is a clear indication that the cost of piracy is quite high.

Thursday marked the opening of a two-day Maritime and Coastal Security Africa conference in Cape Town, South Africa. A primary goal of this conference is to discuss better approaches to enhancing cooperation among different nations in the counter-piracy efforts being carried out. This concern arises due to the fact that nearly all African countries are major exporters of oil, and as such there are a large number of merchant vessels carrying valuable cargo all around Africa. These ships are attractive targets for pirates seeking to commandeer the cargo or hijack these ships and their crew for ransom, so the need to police these waters is ever-present.

According to the International Maritime Bureau, as of October 27, there have been 252 attacks and 26 hijackings so far in 2012. There have been 71 incidents, 31 successful hijackings, and 212 hostages taken by Somali pirates. Currently, Somali pirates are reportedly holding nine vessels and 154 hostages.

Weekly Piracy Review: Crossfire near Somalia, Hostages Released

Pirate vessel ignites during firefight with HNLMS Rotterdam, NATO’s counter-piracy flagship

While patrolling the waters off the coast of Somalia on Wednesday the HNLMS Rotterdam, NATO’s counter-piracy flagship, destroyed a pirate fishing boat. The Rotterdam had deployed a boarding team to check out the boat, and upon confronting those aboard the ship the team began to take fire from fighters on the boat and on land. The fishing boat aroused suspicion as it was the type generally employed to transport pirates in their efforts to hijack larger merchant ships. The attack on the boarding team prompted the Rotterdam to return fire, which resulted in the fishing boat catching fire. Those on board were forced to flee into the sea, and despite continuing to draw fire from those onshore the Rotterdam proceeded to rescue at least 25 people from the water. One person was found dead, and it is unknown whether they were a pirate or being held hostage. It is also unclear how that person died. The Rotterdam suffered only minor damage and no one from the Dutch warship was injured.

In December of 2010 the MV Orna, a UAE-owned cargo vessel, was hijacked by a group of Somali pirates about 400 nautical miles North East of the Seychelles in the Indian Ocean. Since then the ship has been held hostage, along with the crew members who were taken with it. After growing impatient following nearly two years of attempting to collect a ransom for the return of the Orna and its’ crew, it has been reported that one of the hostages was killed in late August of this year. This killing was allegedly  carried out in an effort to prompt a ransom payment, though the truth of the story has recently been disputed by a technical advisor to the ship’s management company. If true, this act is believed to have been the first killing of a hostage by Somali pirates, as generally hostages are held unharmed until ransom is paid.

MV Orna

Last Saturday the vessel and 13 of the 19 crew believed to have been aboard were finally released following a ransom payment reported to be between $400,000 and $600,000. The ship’s captain, the chief engineer, and four other crew members were not released, and are still being held hostage. It is believed that their captors are divided into two separate groups, who disagree over the amount of money they require in order to release these remaining six hostages. The remaining hostages are being held by piracy investors, who support piracy by providing food and security for hostages during negotiations in return for a portion of the ransom. Negotiations are continuing between these piracy investors and the UAE company that owns the Orna.

The UAE’s National Transport Authority (NTA) announced a new anti-piracy security system it will be implementing. As part of the security measures being taken, tracking devices are being installed on commercial ships bearing UAE flags and carrying over 300 tons of cargo. This will allow these ships to be monitored around the clock from offices in Abu Dhabi and Dubai. According to the NTA, 150 ships have already been outfitted with the system, which will soon be installed on about 800 more. In addition, the system implemented by the NTA will provide on-board security protection for these vessels to further discourage piracy attacks.

The International Maritime Bureau reported this week that the number of reported attacks by Somali pirates has dropped to its’ lowest point since 2009. This is largely a reflection of increased efforts on the part of the international community to police the waters of the Arabian Sea around Somalia, focusing on patrolling the Gulf of Aiden. Along with this drop in pirate activity around Somalia there has been an increase in the number of attacks in other areas, including the Gulf of Guinea, Indonesia, and other parts of South Asia.

Child pirates: A key issue for respecting child’s rights and halting piracy

This guest post is by Sonia Messaoudi who is a trainee-lawyer at Paris Bar School with an LLM in international law and human rights. She has interned at Amnesty International and the United Nations Assistance to the Khmer Rouge Trials

Two Somali youth accused of piracy returned home to their parents on 13 August 2012 after a Seychelles court determined they were too young to sentence after an eight-month detention. [Hassan Muse Hussein/Sabahi]

In August 2012, two Somali youth who had been accused of piracy returned home after a Seychelles court determined that they were too young to be sentenced. The children were brought to Garowe on a private plane paid for by the United Nations Office on Drugs and Crime. This is the modern and dark version of piracy books for children. Indeed, this is not an isolated case off the Horn of Africa as about one-third of Somali pirates are children. While eliminating piracy became a worldwide issue, it has to be approached without forgetting the protection of children who are involved in such criminal activities. As noted on the 23 November 2010 for the first time in a piracy resolution, the Security Councilexpressed concern about the involvement of children off the coast of Somalia.

According to international law, children should not be prosecuted by the same means as adults. The United Nations Convention on the Rights of Child states a child (i.e. anyone under 18 years old) should be handled differently than adults when charged with serious crimes, and “be treated in a manner consistent with the promotion of the child’s sense of dignity and worth.”  However, many Somali youth linked to piracy are held in foreign jails, causing great worry for their parents.

As the use of child soldiers is denounced, there is an increasing international mobilization against the use of children for criminal purposes. When dealing with child pirates, there are two possibilities: arrest them in accordance with a juvenile crime, or release them which means they must be put back into one of the worst forms of child labour.

In some countries, children are prosecuted, while in others children are protected. In the countries where children are prosecuted, the State must ensure it does so in accordance with international juvenile justice standards. Over the last twenty-five years, child-specific instruments, such as the UNCRC and general human rights treaties, have played a crucial role in setting out states’ obligations towards young offenders. The UNCRC has four general principles – (i) the right to life, survival and development, (ii) the right not to be discriminated against, (iii) the requirement that the best interests of the child be a primary consideration in all actions concerning children and finally (iv) the right of the child to be heard in all decisions that affect him/her. It requires a dedicated juvenile justice system, a minimum age of criminal responsibility and the adoption of measures to deal with children without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. The UNCRC prohibits the imposition of the death penalty and life imprisonment on children, and requires that imprisonment be imposed only as a last resort and for the shortest appropriate period of time. It also prohibits arbitrary deprivation of liberty and provides for the right to prompt legal assistance and the right to challenge the legality of the detention.

As Radhika Coomaraswamy, the Special Representative of the Secretary-General for Children and Armed Conflict stated, if an international criminal tribunal is convened to deal with the perpetrators of acts of piracy, no child should be tried in the same court as adults but rehabilitated and integrated back into their communities. However, if a prosecuting state decides not to prosecute them, the concrete consequence is to put children back into a situation where they may be forced to perpetrate further acts of piracy. Therefore, solutions should be found in order to reintegrate them into the society as required by Article 7 of The 1999 ILO Convention on the Elimination of the Worst Forms of Child Labour, and article 40 the Convention of the Rights of the Child.

Potential solutions may be drawn from the situation of child soldiers. Roméo Dallaire has noted there is no major difference between a child soldier and a child pirate: “they are children being used by adults for criminal or political purposes, and they are extremely vulnerable, and there are a lot of them.” As for child soldiers, a program called “Prevention, Demobilization and Reintegration” created in 1990’s for helping child soldiers helped more than 100 000 since 1998. Prevention consists essentially in advocacy and supporting civil society by raising awareness of child rights through a variety of media, and using local and international human rights reporting mechanisms. Centers have been created in this purpose, assisted by local or international non-governmental organizations, UNICEF, and UN. Furthermore since piracy business is currently costing and estimated $12 billion to the world economy, prevention seems to be a good investment while finding a solution for child pirates and in order to prevent them from engaging in such criminal activities.

However, prevention and reintegration of children is not enough to eradicate piracy. We must attack the roots. Indeed, the employment of children in criminal activities such as piracy is forbidden by the Labour Organization Convention. The UNCRC states the State parties recognizing the right to child to be protected from exploitation shall provide for appropriate penalties or other sanctions to ensure an effective enforcement. In countries where  pirates originate, such as Somalia, governments often do not respect international standards of human rights. However in order to prosecute pirates who are using or recruiting children, some recommendations were made. Indeed, encouraging government to enforce national legislation to ensure there is no impunity against those accused of perpetrating these violations against children, and increasing pressure on persistent perpetrators through greater interaction between the Council and the Secretariat of UN, national courts and the ICC are one of them, as Resolution 1918 requested it off the coast of Somalia. In case of armed conflicts, some resolutions recommend sanctions, such as arms embargos. We could think about these kinds of solutions for piracy too.

However, the issue is now to know whether or not the use or recruitment of children for criminal activities such as piracy can be prosecuted. In some domestic law, as France and in some states in United States of America for instance, there are specific statutes criminalizing encouraging, using or recruiting children for criminal activities. However, where such is not criminalized especially for recruiting children, it may be possible to prosecute for causing, encouraging, soliciting, or recruiting criminal gang members. Furthermore, Article 101(c) on UNCLOS provides another way to prosecute them stating the recruitment can be as an act of incitement.

At the international level, convictions by International Courts of Thomas Lubanga Dyilo and Charles Taylor have helped raised awareness of the criminal nature of the recruitment and use of children in armed conflict. Furthermore, the International Criminal Court disallows the recruitment or conscription of child soldier (under the age of 15 years) into military which is defined as war crimes.

In order to draw a parallel between child soldiers and child pirates, the question is whether child pirates may be considered to be child soldiers. According to the international definition, a child soldier is any child under 18 years of age, who is part of any kind of regular or irregular armed force or armed group in any capacity including but not limited to: cooks, porters, messengers, and anyone accompanying such a group other than family members. Therefore, the question is whether or not pirates who are using or recruiting children are regular or irregular armed force or armed group. An International armed conflict exist whenever there is resort to armed force between two or more States, while Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. There are two options then. First, it is an non-international armed conflict and we have to determine if the pirates groups can be seen as armed group or irregular armed force, and secondly, it is an international armed conflict and the question is whether or not piracy as international conflict. But pirates group are not well identified.  Both of the two options are not legally convincing. So it seems in most of the case, international humanitarian law cannot apply to child pirates in Somalia, as it applies for child soldiers.

Therefore, in order to impede children piracy and respecting children’s human rights, we should deal with child pirates but also with persons using or recruiting children for such a criminal activities. Where the first ones should not be prosecuted but reintegrated into the civil society, the second ones should be.

What is sure is that we have all, from the local communities to the States and international institutions, the responsibility to make sure the only pirate children should know is Captain HooK.