POST #100 – Developing Consensus on Specialized Piracy Chambers

It is perhaps appropriate that our 100th Post at Communis Hostis Omnium should discuss the issue of a prosecution mechanism and the Jack Lang Report as this was the same topic of our first post in January 2011. From its humble beginnings, this blog has grown in readership and gathered many contributors along the way. We will continue to provide objective analysis of the legal issues surrounding maritime piracy and hope to add some new features. In this regard, today we are introducing a feature called the Weekly Piracy Review which will provide a brief summary of the most important news events of the week and link to relevant analysis where appropriate. Our thanks and welcome to Christine Hentze for taking up this feature. Please continue reading and commenting!

Specialized Piracy Chambers

There appears to be a developing international consensus that something more than national prosecutions of pirates must be pursued in order to address the growing backlog of piracy prosecutions and to reduce the problem of catch and release. That solution appears to be a specialized piracy chamber. A specialized piracy chamber would be a court created within one or more regional states (i.e. Seychelles, Kenya, or possibly Tanzania) and would deal with every piracy prosecution referred thereto. The court would apply that state’s municipal law consistent with the applicable constitutional and statutory framework. Furthermore, the state’s criminal rules of procedure would apply, although specific rules of evidence might need to be adopted in view of its unique mandate. Two sources in particular indicate this is the solution that is gaining support.

The 2011 Digest of United States Practice in International Law (released in July 2012) sets forth the U.S. State Department’ s view as follows:

It is true that suspected pirates have been successfully prosecuted in ordinary courts throughout history. Because of this, the Administration has previously been reluctant to support the idea of creating an extraordinary international prosecution mechanism for this common crime. Instead, the Administration has focused on encouraging regional states to prosecute pirates domestically in their national courts. However, in light of the problems I’ve described to you today, the United States is now willing to consider pursuing some creative and innovative ways to go beyond ordinary national prosecutions and enhance our ability to prosecute and incarcerate pirates in a timely and cost-effective manner. We are working actively with our partners in the international community to help set the conditions for expanded options in the region. In fact, we recently put forward a joint proposal with the United Kingdom suggesting concrete steps to address some of the key challenges we continue to face.

[…]

In addition, we have suggested consideration of a specialized piracy court or chamber to be established in one or more regional states. The international community is currently considering this idea, along with similar models that would combine international and domestic elements. These ideas are under discussion both in the UN Security Council and in the Contact Group.” (emphasis added).

To provide some background, in July 2010, Jack Lang proposed 7 potential mechanisms for such prosecutions. As we noted here, a subsequent Secretary General Report of January 2012 discusses the modalities for several of these options, focusing on 4 of the 7 options. Initially, there was support from some members of the Security Council for the idea that an international tribunal should be created for the prosecution of pirates. However there was resistance from the U.S. and the U.K. based on the continued viability of national prosecutions based on universal jurisdiction. But strictly national prosecutions do have their limits as is noted by the 2011 Digest:

[M]any of the countries affected by piracy—flag states, states from where many crew members hail, and many of our European partners—have proven to lack either the capacity or the political will to prosecute cases in their national courts. Furthermore, states in the region that have accepted suspects for prosecution to date have been reluctant to take more, citing limits to their judicial and prison capacities and insufficient financial support from the international community. As a result, too many suspected pirates we encounter at sea are simply released without any meaningful punishment or prosecution, and often simply keep doing what they were doing. This is the unacceptable ‘catch and release’ situation that has been widely criticized, and for which we must find a solution.”

It further notes that:

 [W]e need to acknowledge the reality that many states, to varying degrees, have not demonstrated sustained political will to criminalize piracy under their domestic law and use such laws to prosecute those who attack their interests and incarcerate the convicted. The world’s largest flag registries—so-called “flags of convenience”—have proven either incapable or unwilling to take responsibility. And given the limited venues for prosecution, states have been reluctant to pursue prosecutions of apparent or incomplete acts of piracy, limiting our ability to prosecute suspects not caught in the middle of an attack.

Hence the need for specialized piracy chambers. A new article by Douglas Guilfoyle supports this view of a developing consensus in the Security Council and his view that specialized chambers are the only practical solution. First Guilfoyle dismisses the other options set forth in the Jack Lang report. He notes that “the earlier calls from some politicians and diplomats for an international piracy tribunal have seemingly fallen away, [. . .] The idea can therefore finally be treated as dead and buried.”

He also considers a dedicated territorial court in Somalia (Puntland or Somaliland) or an extraterritorial court applying Somali law (along the model of Lockerbie) to be unrealistic because “Puntland has a piracy law but no meaningful judicial capacity or immediate ability to attain international standards. An extra-territorial court would require an adequate Somali piracy law and constitutional framework (which does not exist) and a pool of Somali judges (which is not available)”

He therefore concludes that “[P]rosecutions before national jurisdictions are the only feasible option, whether in the general court system or dedicated chambers. […] The question is now largely one of modalities.” These modalities will include the following: (1) identifying which states will create specialized chambers; (2) determining whether UN support is required; (3) and if so, establishing agreements for the provision of such assistance. In this regard, Guilfoyle raises an interesting problem:

[S]ome prosecuting jurisdictions, in a climate in which foreign aid budgets are dwindling, may be in a rare position to provoke a bidding war for international assistance between the various counter-piracy missions in the Gulf of Aden in return for prosecutions. A rational allocation of counter-piracy resources may thus require a more centralized approach in negotiating future agreements.

The most likely candidate for this centralized role would be UNODC and/or UNDP as they have taken the lead in establishing the modalities for these specialized chambers. At the same time, donor states will have to be consulted. Considering all of the stakeholders and the fragmented nature of responses to piracy, strong leadership will be required to create a holistic solution.

A Globalized System of Criminal Justice

Piracy and armed robbery incidents reported to the IMB Piracy Reporting Centre during 2011. Map courtesy of International Chamber of Commerce.

Criminal Justice for pirates has become a truly global affair, utilizing diverse state resources to funnel pirates through a limited number of regional states in East Africa back to their homeland of Somalia. More specifically, the UN’s preferred option for prosecuting Somali pirates will be national prosecutions in several East African states (Seychelles, Mauritius, Kenya, Tanzania) as well as in several semi-autonomous regions of Somalia (Somaliland, Puntland).  Prosecution in European states and the US would remain a backup plan. But this is only one piece of the criminal justice apparatus. Police functions in the Indian Ocean will continue to be performed by a combination of naval coalitions such as NATO and EUNAVFOR and by individual naval states with interests in commercial shipping through the high-risk piracy corridor (including the motley crew of the U.S., India, China, Iran, and others).  At the other end of the criminal justice chain is the prison system where there is currently a bottleneck.  In this regard, the United Nations Office of Drugs and Crime is in the process of refurbishing and building new prisons in Somaliland and Puntland to house convicted pirates.

This solution has several benefits as compared with the other solutions outlined by Jack Lang in January 2011. Prosecuting pirates in multiple regional states creates redundancies, so that if one or more courts prove incapable of continuing prosecutions, other options remain available. For example, Kenya recently stopped all of its piracy prosecutions due to a High Court decision ruling Kenyan courts did not have jurisdiction over piracy offences. Likewise, the Seychelles recently refused to accept pirates from a Danish ship because there was no guarantee that the pirates, if convicted, could be sent back to Somalia (for lack of prison space) and because the Seychelles’ limited judicial capacity. In situations such as these, other states might serve as back-up solutions so that prosecutions could be directed elsewhere.

Funneling Pirates Back to Somalia

Another advantage of this proposed solution is that it has the benefit of building local capacity. Instead of directing resources into a foreign institution, providing support to local courts and local prosecutors promises to increase the capacity of regional state institutions to address criminal justice issues beyond piracy.

The report also raises hopes that the financiers and organizers of piracy can be adequately addressed by East African states. In relation to Mauritius and Seychelles in particular, the report highlights the capacity of these states to prosecute inchoate crimes such as conspiracy, incitement and attempts to commit piracy. The UK and the Netherlands are funding a Regional Anti-Piracy Prosecutions Intelligence Co-ordination Centre (RAPPICC) in Seychelles, in part, for this purpose. This capability will be crucial in order to bring to justice those individuals who organize pirate enterprises, but never step foot on board a pirate vessel.

There will be heavy reliance on prisons in Puntland and Somaliland

However, the report and the plan are lacking in several respects.  First, the cost savings of this plan have likely been exaggerated. There is no final accounting provided in the UNSG report. But a cursory survey of the various costs associated with refurbishing courtrooms, providing expert assistance, hiring additional judges and prosecutors, conducting trainings and, especially building prisons, shows a quickly rising price tag. Combine this with additional unspecified costs that would likely accompany this proposal such as rule of law, general training, and governance projects and the costs may actually be about the same as a hybrid tribunal such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia (about $40 million each annually). In any event, the proposed solution’s budget is modest compared with the sums that are currently being dumped into unsustainable solutions that fail to address the root of the problem.

In addition, the UNSG report apparently hazards some guesses as to the potential of its proposed course of action. Despite the different conditions in each country or region, the report indicates that Somaliland, Puntland, Kenya, and Mauritius will be capable of performing piracy investigations in 20 months and within two years would be able to prosecute 24 cases of 10 defendants each. These are good benchmarks to evaluate the success of these projects.  But it is hard to believe that they are realistic assessments of local conditions. The report evaluates the local capacities of each state/region indicating the number of prosecutors and judges in each. But it fails to compare these numbers of professionals to the actual populations that they must serve. Three hundred and five (305) Prosecutors in Tanzania seems to be a significant number compared to the 36 prosecutors for the whole of Somaliland. However, Tanzania’s population is 43.5 million and the population in Somaliland appears to be around 3.5 million. Therefore, the number of prosecutors per capita in Somaliland (1/10,000) is higher than in Tanzania (1/140,000). In addition, only 10 Tanzanian prosecutors would be in charge of piracy prosecutions. Likewise, the report fails to take into consideration the caseload of the respective prosecutorial groups that would be responsible for piracy prosecutions (i.e. the number of cases each attorney is responsible for, thereby dictating how much time they would have to devote to piracy cases). This suggests the projected capacities are not based upon a realistic assessment of current capacity.

More importantly, the report acknowledges that it was unable to predict with any accuracy the number of piracy cases that would likely proceed to trial. That is, how much prosecutorial and penal resources will likely be required in the next few years.  Due to the volatility of Somalia, the changing tactics of pirates and of commercial vessels responding with various self-defence measures, an accurate assessment in this regard is quite difficult. However, the report suggests that anticipating the numbers of piracy suspects likely to be apprehended at sea and transferred to regional states for prosecution was not possible because no information was available as to the reasons for the release of piracy suspects from the numerous states conducting naval anti-piracy missions in the Indian Ocean.  It is unclear why the UNSG was unable to obtain this information from various member states of the United Nations. But it has certainly left a conspicuous gap in the report’s findings.

Finally, the report ends without any recommendations as to how to prevent recidivism, including programs to retrain Somali prisoners and integrate them back into the community. In this regard, the proposed solution is short-sighted, enabling the relocation of pirates back to Somalia, but providing no real long-term preventative measures. The only permanent solution to piracy is a stable and economically prosperous Somalia. Hopefully, the London Conference can initiate positive reforms in this regard as it is widely accepted that the solution or piracy resides on land, and not at sea.

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part II)

This is the second part of an earlier post discussing the UK Foreign Affairs Committee Report on piracy off the coast of Somalia.

Regional and Local Prosecutions of Pirates (paras 74-110)

The trial and prosecution of pirates is also an extremely relevant, and pressing, topic. As noted in the Report, the peculiar features of modern day piracy, particularly in the Gulf of Aden and the lack of cohesive governance in Somalia, create several practical difficulties, including the apprehension, detention on board and transfer of suspected pirates. One of the primary purposes of policing activities through naval operations is, indeed, its deterrent effect on pirate attacks rather than the arrest and prosecution of the perpetrators.

The collection of sufficient evidence to secure successful prosecutions is particularly problematic, as we noted in a recent post. It should be remarked how any evidentiary assessment on whether to bring alleged perpetrators to justice should, ordinarily, be best placed in the hands of judicial authorities as neutral fact-finders rather than subject to the prelimary evaluation by the naval authorities upon the capture of suspected pirates. Moreover, the Report correctly points out how such assessment could benefit from modern technological means already available to the naval authorities, namely video, radar and satellite recording. In addition, remote testimony via video or audio link is recommended, particularly when victims are located in third countries or, more likely, have already set sail.

Modern international law asserts the possibility to exercise universal jurisdiction over piracy prosecutions. However, as one expert who gave evidence before the Committee put it, the obstacle to prosecution is not identifying the appropriate jurisdiction, but rather the inability, and unwillingness, to prosecute. In addition, the surge of modern piracy and armed robbery at sea has exposed the current inadequacy of national laws, including in the UK, against piracy. For those operating within the field of international criminal prosecutions, the phenomenon is not new. Several states suddenly found themselves incapable to put Genocide suspects on trial before municipal courts due to the inadequacy of their national laws in enacting the provisions of the Genocide Convention.

We have also discussed whether the response to modern piracy should contemplate a revision of the existing international counter-piracy legislation and mechanisms, in particular because it appears that current treaties have difficulty in addressing the difference between political and purely-financial motivations of pirates attacks, or whether attempted attacks are also punishable. Interestingly, as noted in the Report, the IMO has taken the view that “the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate”. Some concerns remain, however, particularly on the practical implementation and effectiveness of these mechanisms.

The main recommendation contained in the Report with regard to options for the investigation and prosecution of pirates is therefore the rejection of the establishment of a specialized Somali tribunal, initially recommended by the UN Special Adviser to the Secretary General Jack Lang as one possible alternative. This option would have established a court outside of Somalia in a neighboring state (most likely Tanzania) with funding and administration from the international community, but would employ Somali judges applying Somali law. There appear to be a number of compelling legal complications against such court, including its legality vis a vis the Somali Constitution. The UK Report rejected this proposal stating:

 “the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.”(para. 92)

Among the main arguments in support of this conclusion are also the possible high costs of an extra-territorial institution, with a tentative figure of $100 million a year. This is not convincing, particularly considering the lack of clarity at the basis of this figure as well as the present estimates of the global costs of piracy, which already identified high costs from the current prosecutions as well as a cost of ransoms alone capping over $130 million per year. In addition, this figure would remain a fraction of the overall economic costs of piracy. It must be acknowledged, however, that an extra-territorial court, financially supported by international organizations, might not be able to promptly contribute as an anti-piracy deterrent and develop effective outreach capabilities within the turned-pirate population in and around the Gulf of Aden.

The rejection of the UN-funded option reflects a gaining trend to favor specialized piracy prosecutions within the area where the alleged attacks took place, counting on a much stronger deterred effect than trials taking place thousands of miles away. Local prosecution projects have already taken shape in Kenya, Mauritius and Seychelles, among other countries in the region. In addition, a small number of historic trials were also held in the US, Germany and the Netherlands, mainly because the alleged pirates were captured by the naval forces of these countries, or due to a nexus between the piracy acts and these latter.

However, while piracy prosecutions in the UK are still contemplated, albeit in limited circumstances, in the Report, the support expressed therein for local or regional anti-piracy courts also present several difficulties which should be carefully weighed. Requesting the help of regional states to prosecute pirates in their courts does not obviate the need to provide support to the various local authorities in the form of financing, training, monitoring and oversight extending not only to the mere prosecutions and trials of suspected pirates, but also to transfer, investigation, security, procurement and infrastructures as well as pre-trial and post sentence detention. Indeed, the fate of a recently arrested group of alleged Somali pirates by the UK Royal Navy after both Kenya and the Seychelles have refused to detain them because “their court systems are swamped”  is a rather timely reminder of some of these difficulties. As the Kenyan government stated last year when it refused to continue piracy prosecutions, ““We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

UN Delays Action While National Prosecutions Continue

The UN Security Council adopted a Security Council Resolution relevant to Jack Lang’s report.  As to efforts to prosecute pirates it included the following language:

[The UNSC] Decides to urgently consider the establishment of specialized Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialized anti-piracy court, as referred to in the recommendations contained in the report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia Mr. Jack Lang (Annex to document S/2011/30), consistent with applicable human rights law, and requests the Secretary-General to report within two months on the modalities of such prosecution mechanisms, including on the participation of international personnel and on other international support and assistance, taking into account the work of the CGPCS and in consultation with concerned regional States and expresses its intention to take further decisions on this matter (emphasis added)

Billed as adopting the recommendations set out in Jack Lang’s report, the resolution calls for another report within two months on the modalities on setting up an anti-piracy court outside of Somalia. The resolution also attempts to address some of the underlying causes of piracy by “[requesting] the Secretary-General to report within six months on the protection of Somali natural resources and waters, and on alleged illegal fishing and illegal dumping, including of toxic substances, off the coast of Somalia” since “allegations of illegal fishing and dumping of toxic waste in Somali waters have been used by pirates in an attempt to justify their criminal activities.” So…the wait for a comprehensive solution continues.

In the meantime, national prosecutions fill the void.  In what appears to be the first case of its kind, the U.S. has arrested a Somali on Somali soil, alleging he was involved in negotiating a ransom of hostages. This is an attempt to prosecute not only pirates who execute attacks, but also those who finance, plan, organize, or unlawfully profit from pirate attacks. This prosecution will provide some interesting legal precedent as to the definition of piracy. Did this man finance, plan or organize the attacks? or was he just another middleman conversant in technology and English? In any event, it will be interesting to see if the FBI attempts to leverage this prosecution into higher levels of the criminal organization.

UN Security Council to Consider Piracy Thursday

According to Businessweek:

China, as president of the Security Council this month, plans to lead a meeting on March 10 to call for a more comprehensive international strategy for dealing with political instability, piracy and the threat posed by the Islamic al- Shabaab militia. Secretary-General Ban Ki-moon is scheduled to brief the council on the latest developments.

This is a follow-up to Jack Lang’s report of 25 January 2011 which was the subject of a previous post. At that time, Lang was hoping for a Security Council Resolution by the end of February. With all of the events in Egypt, Tunisia, Libya, etc., the SC has had its hands full. Notwithstanding other pressing issues, apparently China saw fit to add piracy to the schedule.

Lockerbie in Arusha – Significant Challenges Remain

UPDATE: Lang actually recommended the creation of three courts: one in Puntland, one in Somaliland, and one in Arusha (to be moved to Mogadishu when conditions warrant). The Security Council members are generally in support of his recommendations, but you can discern some variations in their preferences by parsing the language of their statements. A number of questions come immediately to mind: (1) how will an arresting force determine to which of the three courts to send an arrested person? (2) Have Puntland and Somaliland delimited territorial waters where they would have exclusive jurisdiction? (3) Insofar as any nation may prosecute piracy on the High Seas, will the process of determining the proper venue be ad hoc or based upon formalized negotiations and agreements?

Jack Lang, UN Special Adviser on Piracy, has issued his report to the Secretary General.  News agencies are saying that he has recommended the creation of a Somali court sitting in another regional state (akin to the Lockerbie court).  There is some indication that Arusha, Tanzania is being considered as a seat for the Somali court due to the infrastructure already in place at the ICTR.  A number of serious challenges would need to be overcome to create such a court.

First, Somalia continues to be described as a monolithic entity, thereby necessitating a bilateral treaty between the regional State in which the court would be situated and Somali.  However, the United States policy has recently changed with regard to the heretofore unrecognized regions of Somaliland and Puntland. Assistant Secretary of State Johnnie Carson said at a briefing in September 2010:

We hope to be able to have more American diplomats and aid workers going into those countries [Somaliland and Puntland] on an ad hoc basis to meet with government officials to see how we can help them improve their capacity to provide services to their people, seeing whether there are development assistance projects that we can work with them on […] We think that both of these parts of Somalia have been zones of relative political and civil stability, and we think they will, in fact, be a bulwark against extremism and radicalism that might emerge from the South.

Carson said the United States will follow the African Union position and recognize only a single Somali state. However, with Somaliland and Puntland apparently offering to house convicted pirates within their territories, and other States increasingly recognizing their practical autonomy, it begs the question of whether or not an agreement to create a Somali court would require the assent of the Somaliland and Puntland governments. It would seem that a prerequisite to these regions signing an international treaty would be recognition of their Statehood.

The 26 July 2010 Report to the Security Council set forth several additional challenges with regard to the option put forward by Lang.  These include:(1) the considerable assistance that the UN will need to extend to the court; (2) the amount of time necessary for the court to commence functioning could be significant; and (3) the inadequacy of Somalia’s piracy laws and the capacity of Somalia’s judicial system.  In particular, the report noted:

Although there is some judicial capacity in Somalia and among the Somali diaspora, the challenge of establishing a Somali court meeting international standards in a third State would be considerable at present. Further, any advantages that such a court may enjoy would be outweighed if it were to draw limited judicial resources from Somalia’s courts.

One final point that should not be lost amidst the excitement is the mundane, but essential task of determining where Somalis who are eventually convicted of piracy, in the yet to be created court, will serve their sentences. Apparently, Lang has recommended the construction of one prison each in Somaliland and Puntland.  To which, Bronwyn Bruton, an author of reports on Somalia for the New York-based Council on Foreign Relations, reportedly said:

The idea that they’re [pirates] going to be scared off by prisons that meet UN human rights standards is wholly unrealistic. In these jails, they will have food, protection from violence and probably some basic literacy training. For these guys, it’s going to sound like a holiday camp.

Indeed the prospect of serving time in these prisons may not create a serious deterrent to piracy.  However, during the 8 or 20 years in which a pirate might serve a sentence, he will not be capable of committing further acts of piracy.  Furthermore, rehabilitation is a real possibility if stability can be maintained, jobs created, and inmates trained.  Any sustainable solution should take into account the possibilities for a newly released pirate.  If it does not, there is nothing to stop a jobless, ex-convict from continuing to seek bounty on the high seas.

Piracy Report Tomorrow

Jack Lang, the Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, is due to issue his report tomorrow.  Lang was appointed by the Secretary General last August to:

identify any additional steps that can be taken to assist States in the region, as well as other States, to prosecute and imprison persons who engage in piracy; and explore the willingness of States in the region to serve as potential host for any of the options for potential new judicial mechanisms set out in the report of the Secretary-General.

The 26 July 2010 Secretary General’s Report set out 7 options to prosecute and imprison suspected acts of piracy off the coast of Somalia, including creating a special domestic chambers with international components, a regional tribunal or an international tribunal. [For further discussion, see the report: Suppressing Maritime Piracy -Exploring the Options in International Law.]

One of the options discussed by the Report, and which has been favored as a practical matter until present, has been to provide financial support to States within the region to prosecute suspected pirates in their national courts invoking universal jurisdiction. In this regard, the UN Office for Drugs and Crime and other donors have provided $5 million to refurbish the Shimo La Tewa court and prison in Mombasa where the suspects were being tried by Kenyan prosecutors.  The Seychelles has also started prosecuting pirates in its national courts with some assistance from the UN. Despite these efforts, Jack Lang, says that 9 out of every 10 pirates captured by marines are freed. Furthermore, in November 2010, the Kenyan High Court held that the Kenyan penal code does not give Kenyan courts jurisdiction over piracy on international waters, rendering in doubt any convictions obtained to date and casting a shadow on further efforts to prosecute suspected pirates in Kenyan courts.

The question now is what measures Jack Lang will propose. He hopes for a Security Council Resolution within three to four weeks.