If you haven’t heard by now, the American Navy has rescued a group of Iranian fishermen whose boat had been hijacked by Somali pirates. The pirates used the fishing dhow al Molai as a mother ship to stage attacks on other higher-value targets. Iran’s Foreign Ministry was initially silent, but has since commended the American rescue as a humanitarian gesture.
- U.S. Navy Sailor greets crew member of the Iranian-flagged fishing dhow Al Molai
For the moment, the rescue is a public relations coup for the United States as tensions escalate over strengthened economic sanctions against Iran and competing shows of naval force through the Strait of Hormuz, the only waterway connecting Persian Gulf oil resources with Asia and the West. This incident is an embarrassment to Iran and highlights the indiscriminating nature of Somali piracy.
Just like other sea-faring nations, Iran has struggled to combat piracy off the coast of Somalia. There are currently about 14 ships and 254 hostages in the hands of Somali Pirates. Although EUNAVFOR estimates 7 ships and 194 hostages, not including dhows and smaller vessels. Most non-officer seafarers come from developing countries and particularly, the Philippines, India, and increasingly China. Therefore, these countries have the highest proportion of hostages being held. However, Iran has also suffered with 10 Iranians taken hostage aboard the Sinan in 2011 and another 45 taken hostage in 2008 and 2009.
Likewise, some of its ships have been targeted, with al Molai the most obvious example, but also including the Delight and the Iran Deyanat, not to mention other vessels with Iran as a destination.
In response to these attacks, Iran has sent naval vessels to the Gulf of Aden to protect Iranian ships from pirates. It appears to be maintaining two destroyers on mission in the Gulf of Aden, although increasing tensions in the Strait of Hormuz may require Iran’s navy to reallocate resources. See also here. It is unclear to what extent Iranian war ships have interacted or cooperated with other navies while on mission in the Gulf of Aden and Indian Ocean. However, Iran participates in the 19-member grouping of the Indian Ocean RIM – Association for Regional Cooperation (IOR-ARC) which also includes India, Yemen, Australia, Bangladesh, Indonesia, Kenya, Madagascar, Malaysia, Mauritius, Mozambique, Oman, Singapore, South Africa, Sri Lanka, Tanzania, Thailand, the UAE and Seychelles. The IOR-ARC issued the Bangalore Declaration last November, agreeing to share information, experiences and best practices in the fight against maritime piracy.
Although a momentary boost to the United States, this incident will be quickly overshadowed by the tension in the Strait of Hormuz. As tensions between the United States and other countries (to the extent that they are also imposing economic sanctions on Iran) continue to increase, any naval interaction with Iran will be potentially risky. Iran’s presence in the Gulf of Aden is no exception. However, with EUNAVFOR, NATO, and the United States-led international naval coalition of 25 nations all operating in the area, Iran is vastly outnumbered in that area and will be reticent to engage offensively there.
It is also worth noting that Iranian’s most valuable asset, its oil tankers, are not seriously at risk to Somali pirates. Transit through the Gulf of Aden, when tankers are most susceptible to attack by Somali pirates, is only necessary to transport oil to Western countries. Although 18 percent of Iran’s crude oil exports went to the EU in the first 6 months of 2011, that percentage will likely drop considerably as a result of new economic sanctions. The remainder of Iran’s exports go to Asia, notably Japan, India, China and South Korea which do not transit the areas most susceptible to pirate attacks. Al Molai fishing dhow was attacked much closer to Iran, but attacks in that region are exceptional.
But what of these particular Somalis? Will they be prosecuted and where? After the incident, the pirates were in American custody. The New York Times reports that the rescue occurred 210 miles off the coast of Iran, presumably in international waters. If that is the case, the United States as the seizing nation, has jurisdiction to prosecute, decide on penalties, and determine the action to be taken with regard to ships or property “subject to the rights of third parties acting in good faith.” (Article 105, UNCLOS). Iran, as a third party whose nationals were victims of the attacks, also has an interest in prosecuting the pirates. In this case, it is likely that Iran will defer to the U.S. to prosecute the pirates.
There are also some problems of proof, as the pirates apparently threw their arms overboard and claimed to be joy-riding on the seas. Therefore, prosecution will be based upon video and testimony obtained by the navy helicopters and ships that performed surveillance on the ship and the testimony of the victims.
The problem of prosecuting in United States courts is that testimony must be in person due to the confrontation clause (and the U.S. Supreme Court decision in Crawford). This is where U.S. prosecution presents significant hurdles as U.S. servicemen may not be available to testify in court and it is unclear whether video-link testimony would be constitutionally permissible. In the case of the Iranian victims, there are even more serious practical concerns, as they would have to be given permission by the Iranian government to travel to the US to testify. For these Iranians there may be a temptation to seek asylum while in the U.S. just as witnesses at the ICC have done after reaching the Hague from Africa, notably from the DRC and the CAR.
Hypothetically, the pirates could be prosecuted in Iran. Iran is a signatory to UNCLOS without any reservations as to the definition of piracy contained therein. However, Iran has not ratified the Convention and it is unclear whether Iran has particular legislation that criminalizes piracy directly. Insofar as Islamic law applies in Iran, Islam considers piracy to be forbidden and may be punishable by death. In a related context, the Iranian Foreign Ministry has called Israel’s attack of an humanitarian aid flotilla to the Gaza strip to recall, “acts of sea piracy in the past centuries, which are clear example of maritime terrorism.” In 2009, Iran also acceded to the UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) which defines maritime terrorism (the U.S. is also a state party). If Iran and Somalia were to request extradition of the pirates to Iran, the SUA convention requires the U.S. to pay due regard to Iran’s rights as the flag state of the victim ship(s). (Article 11(5) of SUA). Nonetheless, the U.S. would likely consider it difficult for the pirates to receive a fair trial in Iran and could deny extradition to Iran on that basis. (Article 11(6) of SUA Convention).
A more practical solution would be to identify the home community of the pirates in Somalia, be it Puntland, Galmadug, or Somaliland, etc. for prosecution in their home jurisdiction. The UN Office for Drugs and Crime has established programs to strengthen the prosecutorial capacity of some of these regions. However, there continue to be concerns of corruption and judge-intimidation that undermine confidence of a just outcome in these judicial systems. Likewise, the penalties imposed for piracy may be significantly less than in the U.S. where life-imprisonment has been the norm for recent prosecutions of Somali pirates.
Some difficult decisions will have to be made by the American authorities in this regard. Although policy will likely have been made with regard to which pirates to transfer to other authorities and which to prosecute state-side, the enhanced exposure of this particular case might require a re-examination of this calculus.
At the end of the day, piracy is perhaps the only area where the U.S. and Iran share common interests. For both countries, prosecution of pirates remains a problem without any easy solutions.
UPDATE: I just found a summary Iran submitted to the UN of Iranian law applicable to maritime piracy. The summary asserts that piracy is punishable by a sentence of 3 to 15 years imprisonment. It also states, “It should be mentioned that “moharebeh” in accordance with “Sharia Law” is resorting to arms in order to frighten people; and “mohareb” [which includes pirates] is a person convicted of “moharebeh”. The punishmen (sic) of “moharebeh” is “exile” or “death penalty”.” The summary does not state to what extent Shariah law is applied in Iran.