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.

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.

The DC Circuit’s Ali Decision

DC Circuit Court of Appeals

DC Circuit Court of Appeals

On June 11, the U.S. Court of Appeals for the District of Columbia decided the case of United States of America v. Ali Mohamed Ali, a case about which I have written extensively. This post will provide a brief factual and procedural background of the case, briefly discuss the DC Circuit’s treatment of three of the four charges against Ali, and explain how and why the court rejected my argument about a high seas requirement for facilitators of piracy.

Background

Ali Mohamed Ali, the Minister of Education for the semi-autonomous Somali region of Somaliland, negotiated the release of eleven hostages aboard the Bahamian-flagged, Danish-owned merchant vessel CEC Future. Regrettably, in the era of piracy off the Horn of Africa, this is not an uncommon occurrence. What is interesting about Ali’s case, however, is that he negotiated the ransom from Somali territorial waters, never facilitating while on the high seas. Nonetheless, the United States government built a case against him, planned a fairly elaborate ruse to invite Ali to an education conference in North Carolina, and arrested him on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.

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.

Conspiracy to Commit Piracy and Hostage Taking Charges

Of the four charges considered by the court, three were relatively uncontroversial. In affirming the lower court’s dismissal of the conspiracy to commit piracy charge, the court relied on the Charming Betsy canon, concluding that because “UNCLOS [art. 101]’s plain language does not include conspiracy to commit piracy,” the government cannot charge conspiracy to commit piracy “as defined by the law of nations.”

As for the hostage taking charges, Ali’s principle argument was that asserting universal jurisdiction over hostage taking – a non-UJ offense – the government violated Ali’s right to due process under the Fifth Amendment of the U.S. constitution. However, the court concluded that the Hostage Taking Convention provided global notice that an alleged hostage taker could be haled into court. That, combined with the fact that 18 USC § 1203, the American hostage taking statute, asserts jurisdiction over all offenders “found in the United States,” was enough to sustain Ali’s hostage taking charges. This section contains some interesting discussion of the relationship between United States and international law, but it remains to the side of what I believe the most interesting aspect of the Ali case: whether universal jurisdiction exists over facilitators of piracy who never leave the territorial jurisdiction of a state.

Aiding and Abetting Piracy

In considering whether “piracy as defined by the law of nations” allows for universal jurisdiction prosecutions over territorial facilitators, the court considered the text of UNCLOS art. 101, the context provided by surrounding provisions, as well as the relevant drafting history. Though it did not consider the underlying policy implications of criminalizing piracy, the structure of the court’s argument closely mirrored that from my law review article. However, the similarities between our analyses went no further.

The court begins with a textual analysis of art. 101, which takes only three sentences and is re-printed in full here:

Explicit geographical limits – ‘on the high seas’ and ‘outside the jurisdiction of any state’ – govern piratical acts under article 101(a)(i) and (ii). Such language is absent, however, in article 101(c), strongly suggesting a facilitative act need not occur on the high seas so long as its predicate act has. So far, so good; Charming Betsy poses no problems.[1]

Although the court could have ended its analysis there, it turned to Ali’s contextual arguments concerning arts. 86 and 105, introducing the relevant Part in UNCLOS and describing states’ power to capture pirates, respectively. Regarding art. 86, the court concluded that it was not meant to limit the provisions of the Part to high seas acts, but rather to explicate the meaning of “high seas” for the purposes of the Part. As for art. 105, the court explained that “the provision’s reference to the high seas highlights the broad authority of nations to apprehend pirates even in international waters.” The court further asserted that Ali’s argument that art. 105 limits universal jurisdiction captures to the high seas “proves too much, leaving nations incapable of prosecuting even those undisputed pirates they discover within their own borders.”

Finally, the court considered UNCLOS’s drafting history, or, as it phrased the inquiry, the “drafting history’s drafting history.”  The court traced UNCLOS back to the 1932 Harvard Draft Convention’s explicit pronouncement that acts of facilitation must take place on the high seas to be subject to universal jurisdiction. The court found this evidence unpersuasive, stating that, “[e]ffectively, Ali would have us ignore UNCLOS’s plain meaning in favor of eighty-year-old scholarship that may have influenced a treaty that includes language similar to UNCLOS art. 101. This is a bridge too far.”  Indeed, the court stated that it would not completely address the drafting history, as the plain meaning of UNCLOS art. 101(c) was clear.

The court concluded that UNCLOS art. 101, and by extension 18 USC § 1651, and by further extension 18 USC § 2, all allow for universal jurisdiction prosecutions for acts of piratical facilitation which take place entirely with another state’s borders.

In the end, the D.C. Circuit’s analysis and my own departed ways at the very beginning, perhaps even before.  In conceptualizing piratical facilitation as a form of liability distinct from piracy rather than piracy in and of itself, the court was able to resolve the textual argument in one short paragraph. From there, the court sought independent justifications for the limitation in the context and drafting history, where I looked to the context, drafting history, and underlying policy rationale to resolve the ambiguous language.


[1] Omitting the internal citation to the general proposition that inclusion of language in one section of a statute and exclusion in another should be taken as purposeful.

Kiobel Postscript

Further to my earlier analysis here, there was one other remarkable detail in the U.S. Supreme Court’s recent decision in Kiobel. Although, the opinion in Kiobel was devoted to the application of the Alien Tort Statute, it injected some confusion into a strictly piracy matter. Citing to Blackstone’s definition of piracy the court majority noted, “the offence of piracy by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to a felony there.” This is an outdated definition of piracy inconsistent with the law of nations. The 4th Circuit Court of Appeals has held in two recent opinions that piracy does not require an intent to rob (animus furandi) because the piracy statute 18 USC 1651 incorporates modern developments in “the law of nations” including the customary definition of piracy in Article 101 on the UN Convention on the Law of the Sea. Only a few months ago, the Supreme Court declined to hear these two cases, thereby taking no view on whether the definition of piracy has been updated by modern developments. By now citing to Blackstone’s definition in the Kiobel opinion, however, the court has muddied the waters.

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