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.

International Anti-Piracy Efforts in Somalia Must Continue: UNSG

The latest UN Secretary General situation report on piracy in Somalia is now before the UN Security Council. The report provides an overview and an update on the most relevant anti-piracy initiatives in Somalia and the Gulf of Aden.

During 2013, piracy has continued to be a major issue on the agenda of the UN and EU, NATO, several regional and other interested states as well as a number of specialized agencies, such as the UNODC, DPA, IMO, INTERPOL and FAO among others. Specific and ad hoc mechanisms and organizations, such as the Kampala Process, the Contact Group, the Djibouti Code of Conduct, the Trust Fund, the Hostage Support Program and a number of international conferences have proven instrumental in the fight against piracy.

It has been widely reported how incidents of piracy in the region are now at a seven years low. It is also no mystery how these positive developments are due to a multitude of factors, including the effectiveness of the international maritime patrol missions, the best management practices and the use of private armed guards in deterring piracy attacks, as well as the implementation of the “prosecution chain”, by which suspected pirates are apprehended, tried in courts of regional states and eventually transferred in Somaliland and Puntland to serve any imposed sentence.

“A number of measures have led to a decline in attacks: improved international and regional cooperation on counter-piracy efforts, including better intelligence- and information-sharing; targeted actions by the international naval presence to discourage and disrupt Somali pirates; increased application of IMO guidance and of the Best Management Practices for Protection against Somalia-based Piracy, developed by the shipping industry; and prosecution of suspected pirates and imprisonment of those convicted. The adoption of self-protection and situational awareness measures by commercial ships, including the deployment of privately contracted armed security personnel on board vessels and vessel protection detachments, are also believed to have contributed to the decrease in piracy attacks.”

The Security Council is expected to agree with the Secretary General’s recommendation that the international anti-piracy efforts underway in Somalia continue for at least another year. The obvious question is how long the international community will be willing and capable to continue financing its costly patrol missions, particularly given the waning threat (or risk of attacks). The question also arises on the cost-efficiency of private armed guards on board ships travelling in the region. The repression of piracy in the Gulf of Aden does not, however, solely depend upon these initiatives. The fight against piracy which started as an armed response, has progressively expanded into an integrated system that encompasses respect and promotion of human rights and the rule of law, governance, economic development, capacity building, treatment of juvenile pirates, alternative employment opportunities and legislative reform. In addition, environmental protection and exploitation of natural resources in the region are also being monitored. Even if the piracy drought continued in 2014, these initiatives are likely to be further stepped up and take center stage towards long-term solutions for Somalia’s future. Although we have been careful not to conflate terrorism with piracy, the impetus to continue these programmes also arises from the continued threat of terrorism originating in and/or targeting Somalia.

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.

SCOTUS Denies Hearing of Piracy Cases

Lady Justice in front of the U.S. Supreme Court

We have been following a number of piracy cases in the U.S. two of which had resulted in convictions and looked like they might be heading to the U.S. Supreme Court (SCOTUS). The issue in U.S. v. Said and U.S. v. Dire was whether piracy, as defined by the law of nations, incorporates modern developments in international law. See also here. By declining to hear the cases, SCOTUS takes no view on the debate. However, in several lower court decisions, judges have relied on the pronouncement in Sosa v. Alvarez-Machain that claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” This conclusion runs counter to a judicial philosophy of strictly construing the plain language of a statute based on the understanding of the congressional authors at the time the act came into law. Because piracy was a novel issue unaddressed by SCOTUS in several hundred years, and because the legal issue on appeal invited strong ideological views, I had thought the case for hearing Said and Dire was fairly strong. Nonetheless, one weakness in the argument was that there was no split of authority between the federal courts of appeal (one basis for SCOTUS granting discretionary review). Both cases originated in the 4th circuit and reached the same conclusion on this point of law.

The same is not necessarily true in a second set of cases in U.S. courts involving pirate negotiators. In the case of U.S. v. Shibin, in the 4th Circuit, the defendant was convicted for aiding and abetting piracy although he was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters. In U.S. v. Ali, the federal court in the DC Circuit reached the opposite result and dismissed the aiding and abetting charges against an alleged pirate negotiator because it held that piracy must be committed on the high seas. These cases raise the issue of whether piracy can be perpetrated on land or within a state’s territorial waters, despite UNCLOS defining piracy as an offense perpetrated on the high seas. U.S. v. Ali is the subject of a prosecution interlocutory appeal on this issue, and Shibin’s conviction is on appeal to the 4th Circuit. Therefore SCOTUS might have another opportunity to get involved in the piracy debate and to make a contribution to the status of customary international law on the subject – although it might take another year for these cases to be ripe for review. On the other hand, it appears both circuits might reach the same conclusion and find that aiding and abetting piracy can be perpetrated on land – a position I have argued in a forthcoming law review article in the Florida Journal of International Law.

 

The Report of the International Piracy Ransoms Task Force is Available

The International Piracy  Ransoms Task Force, established at the London Conference on Somalia, issued its final Report on December 2012. The objective of the Task Force, composed of representatives of 14 States, was “to develop a greater understanding of the payment of ransoms in cases of piracy, in order to put forward policy recommendations to the international community as to how to avoid, reduce or prevent the payment of ransoms. The ultimate goal of this effort is to reach a point where pirates are no longer able to profit from ransom payments and thus abandon the practice of kidnapping for ransom.”

The conclusions and recommendations of the Task Force, included in the Report, build upon the following main options to reduce and avoid the risk of ransom payments to pirates:

  • strengthen the co-ordination between Flag States, the private sector and military responders to prepare for potential hostage situations, in order to shorten the decision-making process during the narrow window of opportunity for intervention after a piracy incident;
  • develop a new strategic partnership between Flag States, the private sector and law enforcement agencies that brings together those tackling piracy and those subjected to it in a united effort to break the piracy business model. In particular, this partnership should develop a more co-ordinated approach to information-sharing which would greatly enhance the quality and quantity of information exchange both to reduce ransom payments and to provide evidence to pursue and prosecute all involved in piracy, from those directly attacking ships to the kingpins who direct this organised crime;
  • encourage the implementation of anti-piracy measures, including still greater compliance with industry Best Management Practice, under the leadership of flag states and supported by the private sector, including insurance companies, in whose interests it is to mitigate risks.

Among the main practical recommendations put forward in the Report are the consolidation of various regional information-sharing frameworks to achieve a “one stop shop” mechanism for the diffusion of relevant information in the immediate post-hijack phase; the conduct of ransom negotiations with the knowledge of relevant national and international authorities in order to foster mutual assistance between these and the private sector; and the development of a mechanism maximising the evidence-gathering process immediately after the release of the vessel or its crew for subsequent prosecutions.

In line with the Task Force’s objective, the 15 page-long Report focuses mainly on the establishment of broad policies to improve communication and coordination to prevent hostage and ransom situations in the future. Several of these policies have been already under discussion for long time and by a number of institutions involved in the fight against piracy. Hopefully, the issuing of the Report will provide for a swift implementation of these policies. Regrettably, the Report does not contain an analysis and more practical recommendations directly relevant to actual hostage-taking, vessels’ hijacks and, more particularly, ransom situations. Given the wealth of knowledge and the technical resources available to the Task Force and its member states, as well as other participants from the private sector, it would have been preferable to expand on the Task Force’s mandate to immediately initiate an information sharing and lesson-learned process relevant to these aspects of piracy ransoms.

Shibin files appellate brief

On December 13, Mohammad Shibin filed an Appellate Brief with the Fourth Circuit Court of Appeals. Shibin was charged with eight crimes, comprising fifteen separate counts, for his alleged role as a hostage negotiator in the hijackings of the Marida Marguerite, a German merchant vessel manned by foreign nationals, and the S/V Quest, an American sailing vessel with Americans on board. At trial, Shibin was convicted of all fifteen counts and sentenced to multiple life sentences plus 120 months in prison.

This post will offer a brief summary of the defendant’s arguments followed by even briefer commentary concerning the plausibility of those arguments. On balance, Shibin may have earned himself a retrial on a couple of issues, but he is highly unlikely to escape punishment altogether.

Mohammad Shibin shortly after his arrest.

Shibin’s first argument on appeal is that the two counts of piracy under 18 U.S.C. §§ 1651 and 2 should be dismissed because, “[i]n what could be characterized as almost indifference to this essential requirement, the government failed to present any evidence that Shibin had at any point committed any act upon the high seas whatsoever” (emphasis in original). In support of this argument, Shibin advances the plain language of § 1651, the legislative history of §§ 1651 and 2, prior lower court opinions on the issue, and customary international law as found in the Harvard Draft Convention and the Geneva Convention on the High Seas. These sources, according to the defendant, all suggest that universal jurisdiction over piracy only exists for those acts committed on the high seas or outside the territorial jurisdiction of any state, and that § 1651 only purpose is to criminalize those extraterritorial acts.

I have written a great deal about this argument in the past, and rather than re-hash it all here, I’ll direct readers to this EJIL Talk post and to other on CHO. I will add, however, that I agree that using § 2 to provide for universal jurisdiction over facilitators who act from with a single nation’s territory is impermissible under the Charming Betsy Canon. Ultimately, though, this is an issue that has yet to be fully litigated, so it is anyone’s guess how it will come out in the end.

Second, Shibin advances the ambitious argument that all counts should be dismissed because Shibin was improperly brought before the U.S. courts. Shibin rightly notes that a pair of Supreme Court cases, Frisbie v. Collins and Ker v. Illinois, stand for the proposition that “the power of the court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a forcible abduction.” The Ker-Frisbee doctrine has been endorsed in the face of extradition treaties that were was silent on the propriety of forcible abductions in, inter alia, U.S. v. Alvarez Machainand Kasi v. Angelone. Shibin seeks to distinguish his case by noting that the United States and Somalia do not have an extradition treaty. The lack of such a formalized agreement, according to the defendant, signals the Somali government’s unwillingness to allow foreign officials’ access to their citizens.

This argument seems likely to fail with respect to the Marida Marguerite and will almost certainly fail regarding the Quest. In Alvarez Machain, the Court essentially held that silence as to the propriety of forcible transfers renders American courts unwilling to look into the legality of such transfers. This logic seems to suggest that U.S. courts view the right not to be forcibly brought before a U.S. court as a right that a foreign government must affirmatively assert on behalf of its citizens. Somalia’s silence on the matter is therefore likely to be interpreted in a similar fashion, whether or not that silence comes in the context of an extradition treaty.

The third argument advanced by the defendant is that all of the non-piracy offenses charged in connection to the Marida Marguerite should be dismissed because they are not crimes of universal jurisdiction. These counts include hostage taking and conspiracy to commit hostage, conspiracy to commit violence against maritime navigation and committing violence against maritime navigation, conspiracy to commit kidnapping and kidnapping. Shibin finds support for this argument in U.S. v. Yousef, 327 F.3d 56 at 104 (holding that universal jurisdiction crimes cannot be created judicially, by analogy, or through references to aspirational treaties or scholarly works).

However, this argument ignores the same Charming Betsy Canon upon which the defendant relies in support of his piracy charges. The Charming Betsy Canon states that statutes should not be construed as to violate the law of nations unless Congress manifests its intent to do so. However, 18 U.S.C. § 1203 (hostage taking), 18 U.S.C. § 2280 (violence against maritime navigation), and 18 U.S.C. § 1201 (kidnapping) all contain “found in” or “brought before” provisions stating that the United States shall have jurisdiction over those individuals who are later found in the United States or brought before a U.S. court. Thus Congress provides for some form of qualified universal jurisdiction over hostage taking, violence against maritime navigation, and kidnapping that arguably violates international law. Nevertheless, there is no shortage of precedent stating that courts will uphold such statutes if Congress’ intent is clear. It must be said, tough, that none of this precedent concerns a defendant with no traditional connection to the United States whatsoever, as is the case with Shibin’s charges stemming from the Marida Margueritte.

Finally, Shibin challenges the testimony of an FBI agent concerning a translated interview between that agent and Muhamud Salad Ali, one of the individuals who captured the Quest. Shibin argues that the facts surrounding the translation are such that the translator created an additional level of hearsay, and the translator’s absence from trial constitutes a violation of the Federal Rules of Evidence and the Confrontation Clause. In support of his argument, Shibin relies on a four-part test announced in the Fifth Circuit in U.S. v. Martinez-Gaytanand adopted by the Fourth Circuit in U.S. v. Vidacak. At issue in these cases was whether the translator should be considered an out of court declarant or a mere conduit of the in court witness. The four factors to be considered are: 1) which party supplied the translator; 2) whether the translator had a motive to fabricate; 3) the translator’s qualifications and skills, and; 4) whether actions taken subsequent to the translation were consistent with the statement translated.

According to Shibin, three of the four factors mitigate in favor of requiring the translator’s presence in court for examination. First, the FBI agent in question described the translator as “an FBI Somali linguist,” suggesting that the government supplied the translator. The second factor – potential motive to fabricate – is neutral, as there is no evidence suggesting bias. Third, there is no basis to determine the translator’s skill, as nobody but the prosecution had access to him or her. Finally, Mr. Salad Ali’s testimony in court directly contradicted that which came out of the earlier translated interview. On balance, Shibin argues, the nature of this particular translation created an additional layer of hearsay that can only be remedied through a re-trial of which the Somali translator would need to be a part.

This argument seems plausible on its face, assuming the facts and the law are as the defense brief says they are. Without more research or access to the government’s yet-to-be-filed brief, it is impossible to predict the outcome of this particular argument. I will note, however, that Shibin makes a Confrontation Clause argument that he says should stand regardless of the outcome of the hearsay argument. It seems to me, however, that the hearsay argument and Confrontation Clause argument will rise or fall together. If the translator is deemed a mere conduit of Mr. Salad Ali, the latter of whom was available for confrontation, it would be difficult to argue that the translator’s translation was testimonial.