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!

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.

 

Follow the Khat: Tracking Piracy’s Financial Flows

It is high season for reports and studies relating to piracy. The latest World Bank report, Pirate Trails, which follows the recent IMB annual report on the number of piracy incidents as well as the UNSG situation report on piracy in Somalia, is dedicated to the largely unchartered topic of the illicit financial flows of Somali piracy. So far, apart for the disappointing report of the UK sponsored International Piracy Ransom Task Force, little public attention has been paid to tracking and disrupting the financial flows generated by piracy through the payment of ransoms for ships, crew and their cargos. Pirates, defined in the report as hostis humani generi (but wrongly attributing this definition to Cicero) have been capable of modernizing their actives and developing specific business models that adapt to the situation in which they operate. In Somalia, alongside pirates who attack and board ships crossing the Gulf of Aden, a sophisticated network of investors, local and foreign financiers and shareholders, but also negotiators, interpreters, guards, cooks and drivers, flourished and profited from piracy.

The report estimates that US$339 million to US$413 million was claimed in ransoms between April 2005 and December 2012 for pirate acts off the Horn of Africa. With low level pirates typically netting a pre-agreed fee between US$30,000 and US$75,000 (about 0.01–0.025 percent of an average ransom payment), the pirate financiers who invested in the piracy operations receive the bulk of the ransom, estimated at 30–75 percent of the total ransom.

Ransom payments can be invested locally, generally by low level pirates but increasingly also by financers, or moved by financial transfer, particularly to Djibouti, Kenya, and the United Arab Emirates. Most of the money is moved by cross-border cash smuggling, made easy by the porosity of the borders in the region and trade-based money laundering. Money transfer services are also exploited to move money outside Somalia.

Depending on the profit made, ransom money may be used to fuel other illicit activities in the region. Some pirate financiers are engaging in human trafficking, including migrant smuggling, and investing in militias and military capacities in Somalia. To launder their proceeds, pirate financiers can also buy into legitimate business interests, particularly the real estate market. Allegations that ransoms payments fueled the real estate prices in the region are not new, although any definitive evidence has yet to be shown. Other legitimate businesses in trade (for example, trade in petroleum), transportation, and the services industry (for example, restaurants, hotels, shops), also offer viable opportunities for the pirates to invest the proceeds from piracy, depending on the profit originally made.

Khat (also commonly referenced to as qat, qaad, gat, jaad, tchat, and miraa) is a small leafy plant. Among communities in the Horn of Africa and the Arabian Peninsula, the chewing of khat is a social custom dating back many thousands of years.

Khat (also commonly referenced to as qat, qaad, gat, jaad, tchat, and miraa) is a small leafy plant. Among communities in the Horn of Africa and the Arabian Peninsula, the chewing of khat is a social custom dating back many thousands of years.

Interestingly, the report sheds light of the role played by the trade of Khat, a mild stimulant popular in Somalia and very popular among pirates, in the financial flows generated by piracy. Khat is provided on credit to low level pirates throughout highjack operations. Its use is recorded. When ransoms are finally paid, the debt accumulated by the pirates during the captivity period is paid back by subtracting it from their share of the profit. In light of the potential profit to be generated, pirates are ready to pay their khat’s provisions at a price well above the market price. There is more. Given the lucrative nature of the trade, which predominantly cash-based, the traditional culture of khat chewing in Somalia, and Somalis’ control over the distribution network, pirates are also investing their profit and increasingly buying into this multi-million dollar business. Khat trade with northern Kenya, in particular, is largely unregulated and is becoming fertile ground for the pirates’ business interests in this sector. An estimate of nine tons of khat is flown daily from Kenya to Mogadishu. The report recommends the regulation of the khat trade as one of the means to disrupt piracy financial flows in the region. Considering the pirates involvement in the  growth, distribution and consumption of khat, however, the khat trade may already be an effective indicator of the pirates financial and laundering activities. Monitoring this business can therefore add to the efforts to track the pirates network upwards to their financiers within and outside Somalia.

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. 

Piracy Best Practices Adapt to West Africa’s Setting

The surge of piracy in West Africa prompted some of the main stakeholders in the maritime industry to develop interim guidelines for the protection against piracy in the region. The guidelines, endorsed by the IMO, aim to bridge the gap between the prevailing situation in West Africa and the advice currently available in the fight against piracy. They complement one another and are to be read in conjunction with the Best Management Practices (BMP4) originally adopted to address piracy in the Gulf of Aden.

Worthy of note is that the Guidelines identify the area off the coast of Nigeria, Togo and Benin as at major risk, although pirates are rather flexible in their operation and attacks have also occurred elsewhere. Significant is the absence in the region of regular patrolling missions by international navies, a designated group transit area or a specific information and coordination centre akin to the UKMTO or MSCHOA in the Gulf of Aden. In the event of a pirate attack, the main point of reference is currently the Regional Maritime Rescue Coordination Centre, run by the Nigerian Maritime Administration and Safety Agency in Lagos.

With regards to the pirates’ modus operandi, their activity is normally confined to armed robbery of valuables from the ship’s safe, IT equipment and personal effects while the ship is approaching or anchored off ports; and cargo theft, mainly directed at oil and chemical tankers and involving the ship’s hijack for several days until the cargo is transferred by well-organized and coordinated cartels. Pirates appear to possess intelligence-gathering and maritime skills. While kidnapping occurred on some occasions, generally in connection with cargo theft or in areas characterized by political instability, ransom does not appear to be among the pirates’ primary objectives. Although this is a significant difference with Somali pirates, the fact that a ship’s crew is not seen as a value might in turn heighten safety risks, which is consistent with the fact that West African pirates have shown a greater level of violence during attacks. Engaging in a fight with the pirates is therefore strongly discouraged.

Finally, while it is possible to obtain authorization to employ protective services such as military or  police as armed escorts, the use of private armed guards is problematic, given the diversity of the legal, security and administrative frameworks and particularly considering that attacks are likely to take place within the territorial waters of States in the region, which often do not allow the operation of private security companies.

Regional States Play Key Role in Fight against Piracy in West Africa

It has been some time since we first and last spoke about the escalation of maritime piracy and armed robbery at sea in West Africa. The United Nations Security Council recently issued a statement dedicated to the emerging threat of piracy in West Africa, calling for States in the region to play a key role in countering piracy and addressing its underlying causes:

“The Security Council stresses the importance of adopting a comprehensive approach led by the countries of the region to counter the threat of piracy and armed robbery at sea in the Gulf of Guinea, as well as related criminal activities, and to address their underlying causes. The Security Council recognizes the efforts of the countries in the region in adopting relevant measures in accordance with international law to counter piracy and armed robbery at sea and to address transnational organized crime, such as drug trafficking, as well as other measures to enhance maritime safety and security.”

With the technical support of specialized UN and regional agencies, West Africa’s heads of State have already taken steps to counter piracy, including the holding of a regional meeting in Yaoundé, Cameroon, which culminated with the adoption of the Code of Conduct concerning the Prevention and Repression of Piracy, Armed Robbery against Ships, and Illegal Maritime Activities in West and Central Africa and the establishment of a coordination centre for the implementation of a regional strategy for maritime safety and security. The centre should contribute to the implementation of multi-national and trans-regional mechanisms covering the whole region of the Gulf of Guinea.

Piracy in West Africa has emerged as an additional threat to safety and trade in the region, with the number of reported attacks now surpassing those off the coast of Somalia and in the Gulf of Aden. While piracy in Somalia was borne out of the collapse of State institutions and their failure to counter insecurity and enforce the rule of law, West Africa is characterized by more stable governments with enforcement powers on their territory through naval and military assets. West African States are therefore in a position, and have a duty, to play a more direct role in the fight against piracy in the region. Piracy in West Africa, however, shows links with organized transnational criminality, such as drugs, natural resources and people smuggling and thrives through corruption at both the local and central administration level, which, in turn, creates discontent and lack of trust amongst the population. Independence movements have also degenerated into committing acts of terrorism. For some time, these phenomena have plagued the region and provided the conditions for the resurgence of piracy. Among the main challenges in combating piracy in the Gulf of Guinea is therefore the development of a coordinated approach driven at the regional level, bringing together costal States as well as regional organizations and encompassing the sharing of resources, intelligence and information within the framework of a common plan of action. While fundamental distinctions remain in the pirates’ modus operandi between West and East Africa, this approach can build upon some of the lessons learned in the so far successful strategy to combat piracy in the Gulf of Aden, including the modernization and harmonization of national criminal codes, upgrading of detention facilities and other infrastructures and other training or capacity building initiatives.

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.