The Piracy Law Graph to End All Piracy Law Graphs

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

The tagline of Communis Hostis Omnium, “Navigating the Murky Legal Waters of Maritime Piracy,” is perfectly apt for describing the nature of piracy law. Even apart from the deft water metaphor, the tagline rightly points out that the nature of the law surrounding the oldest international crime is both unsettled and uncertain.

One of the thorniest doctrinal issues pertaining to piracy law is the question of whether facilitators of piracy must be physically present on the high seas to avail themselves to universal jurisdiction prosecutions. Much attention has been paid to the subject both on the pages of this blog and others. While working on a law review article on the subject, I generated this graph, which should give every international lawyer pause when considering the state of modern piracy law.

I created the graph above using Google Ngram, which is a tool that allows users to view a given word or phrase as a proportion of all words and phrases in the 20 million books scanned by Google to date. Rarely do numerical data paint such a clear picture. In short, piracy was of great import up until the turn of the twentieth century, where it was subsequent relegated to the backburner, not to be revived until the turn of the twenty-first century.

Presumably, international lawyers and the general public perceived this trend in a similar fashion, so the fact that all of the modern positive international law dealing with piracy was drafted during piracy’s wane should have a humbling effect. There is a significant chance that the drafters of UNCLOS and others who played a role in shaping the customary international law vis-à-vis maritime piracy saw piracy as more of a theoretical issue than a practical one. That fact should, in and of itself, play into the contemporary analysis.

This is not to say that the graph above proves anything one way or the other as far as a high seas requirement for facilitators is concerned. Rather, it is meant merely as food for thought to start your week by. We are dealing with an issue whose renaissance was not predicted by many – if any – scholars or practitioners of international law. What to do with that fact is an open question but one that should undoubtedly be taken seriously.

In Brief: the Journal of International Criminal Justice – Symposium on Somali Piracy

The Journal of International Criminal Justice (JICJ) stepped out of its international criminal law-grounded comfort zone dedicating part of its latest issue to a symposium on the rise of piracy off the coast of Somalia from a variety of legal and non-legal perspectives. The symposium includes important contributions, ranging from an overview of counter-piracy initiatives undertaken by the international stakeholders, the local context of the historical and social background to piracy in Somalia, the role of domestic courts worldwide in prosecuting pirates, the key legal issues and challenges to the use of private military companies as well as anti-money laundering practices that could be used to counter Somali piracy. In particular, in his contribution Douglas Guilfoyle describes the international law governing the seizure and prosecution of suspected pirates, critically evaluating past proposals for international or internationalized piracy courts.

An abandoned hijacked Taiwanese fishing vessel in Hobyo, Somalia – Courtesy AP

The symposium is currently available only upon subscription.  In consideration of its fascinating subject matter, we hope that at least some parts of the symposium will soon be made available free of charge through JICJ’s “Editor’s Choice” section.

Pirates in Prada and Proving it

The Economist has a comprehensive report touching on many of the practical issues created by the rise of Piracy in the Indian Ocean. In the conclusion to the report, the report explains some of the reasons why there have not been more comprehensive efforts to address the problem.

Unfortunately, too many people like things as they are. Pirates gain wealth, excitement and glamour. Marine insurers, which last month extended the sea area deemed to be at threat from Somali pirates, are making good money from the business that piracy generates. At least for the time being, shipowners are willing to take the calculated risk of sailing in pirate-infested waters; so long as everyone bears his part of the extra $600m a year in premiums, they can pass the bill on to their customers. Patrolling foreign navies can demonstrate their usefulness to their sometimes sceptical political masters, while countries such as China and Russia are strengthening their operational experience.

Smithsonian Artifact: Slave Shackles

On another issue, the report acknowledged the difficulty in compiling evidence to prove acts of piracy. Professor Eugene Kontorovich has advocated for “Equipment Articles,” taking a cue from the slave era in which the British enacted laws creating a presumption that ships were engaged in slavery if they were in possession of certain equipment such as shackles. In the context of piracy, Professor Kontorovich states:

Equipment Articles could create a presumption of piracy for people found on a vessel less than a certain length, with engines of a certain horsepower, equipped with grappling hooks, boarding ladders, armed with RPGs and/or heavy machine guns, and/or far out at sea with obviously inadequate stores of food and water (which could suggest the skiff operates from a mothership).

Boarding ladders, such as the one seen in the header to this blog, and grappling hooks permit pirates to quickly gain access to a ship. But, the practical problem with this suggestion is set forth in the Economist report: “If they are caught in the middle of an attack, the pirates have no hesitation throwing their weapons—typically AK47 machine guns and rocket-propelled-grenade launchers—and their scaling ladders overboard to destroy evidence of their intentions.” All that would be left is a skiff with a large engine and, if the pirates are clever, a fishing net. The Equipment Articles would be of questionable utility in such circumstances.

But there is also a due process problem with such laws.  International criminal law has adopted the beyond a reasonable doubt standard of proof. Equipment Articles appear to lower the burden of proof such that the prosecution of a pirate would only require prima facie evidence that a suspect intended to commit piracy. In other words, Equipment Articles put the onus on the suspect to disprove that they intended to engage in piracy. Alternatively, Professor Kontorovich notes that during the slavery era, the United States never enacted Equipment Articles, but instead considered the possession of equipment as circumstantial evidence of slavery. This latter use is more consonant with contemporary International Criminal Law practice. Short of catching Pirates as they attempt to board a ship or after they have already taken hostages, compiling sufficient evidence to prove piracy will continue to pose a problem.

UPDATE: The Danish Navy was forced to release six suspected pirates for lack of proof to sustain a conviction. “The pirates “had thrown all their equipment used for piracy into the sea before the boat crew members of the Esbern Snare [the Danish Naval ship] had boarded. “

Duress as a Defence to Piracy

I am fascinated by the parallels between past eras of piracy and the current resurgence in Somalia. In a law review article last year, Peter Leeson notes that during the 18th century, Caribbean pirates cleverly avoided conviction by the British based on a defence of “impressment.” As Leeson puts it:

Voluntary complicity with a pirate crew was important to establishing guilt. Pirates exploited this loophole by pretending to conscript seamen who joined their ranks voluntarily. Since pirates did genuinely compel some seamen to join their companies, court officials considered the impressment defense plausible.

In order to buttress the conscription defense, pirates needed some kind of corroboration.

conscripts, real and pretend, asked their captured fellow sailors, who the pirates released, to advertise their impressment in popular London or New England newspapers. If authorities ever captured the pirates the “conscripts” sailed with, “conscripts” could use the newspaper ads verifying their forced status as evidence in their defense.

An “impressment” or “conscription” defense is akin to a modern defence of duress, providing a justification or excuse because of the involuntary nature of the conduct. In the U.S., the defence must be proven by the defendant by a preponderance of the evidence. Therefore, the defendant must put forward some affirmative evidence that he was forced to perform the criminal act.

Last November, in “the first piracy case to be tried in a U.S. court since the Civil War,” the defendants initially asserted that they were merely fishermen.  In rebuttal, the prosecutor said, the defense amounted to: “We didn’t do it, but if you think we did it, someone made us do it.”

There is undoubtedly some truth to the claim that they were “forced” into piracy. The coastline of Somalia is 3,898 kilometres long. About 55 per cent of its population lives along this coastline many of whom depended upon fishing for their livelihood. In this regard, a 2006 UN Environment Program report noted:

a large number of foreign vessels illegally fishing in Somali waters and serious pollution caused by vessels discharging toxic waste. Heavily armed foreign boats have often tried to exploit the breakdown of law and order in Somalia since the overthrow of President Mohammed Siad Barre in 1991 by fishing in the rich Somali waters, thus depriving coastal communities of resources.

Other support for this appears here. However, others argue that this is just a cheap excuse for those who voluntarily chose piracy. Regardless of its merits, suspected Somali pirates have already taken a page from another era.  Now, where to publish that ad?