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. 

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.

Language, Capacity Issues Plague Indian Prosecutions of Somali Pirates

Suspects aboard the pirate ship the INS Taba on their way to Mumbai after being arrested by the Indian navy in March 2011. Photograph: Indian navy/EPA

The trial of about 120 Somalis in India is encountering significant obstacles, including difficulty finding qualified Somali-speaking interpreters, procuring deposition evidence from victims, and dealing with the sheer volume of cases on backlog. India’s navy has been very active in helping to patrol the seas off the coast of Somalia. It also recently used its turn as President of the Security Council to put the fight against worldwide piracy at center stage. Perhaps because of its pro-active approach, India has taken into custody a large number of suspected pirates. As we have seen in any number of western countries taking up piracy prosecutions, there are substantial challenges that come with prosecuting Somalis in a transnational setting. This is not to mention the legal obstacles faced by countries attempting to revive centuries old laws to address the resurgence of this type of criminality. As we surveyed in 2011, India’s legal framework for piracy required updating. Video-link testimony and interpretation, in addition to, a more active foreign office might assist the prosecutions in these cases.  Of course, all of these solutions require resources and technological capacity. This is true whether prosecutions move forward in the Netherlands, the U.S. or in India.

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.

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.