Specialized Chambers to Prosecute Kingpins – Long promised

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre whose objective is to  create sustainable regional capability and capability to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

The Regional Anti-Piracy Prosecution and Intelligence Coordination Centre (RAPPICC) in Seychelles, the objective of which is to undermine the piracy business model by bringing pirate leaders, financiers and enablers to justice

As we have reported here, here, and here, the UN Security Council has long expressed its interest in the creation of specialized chambers to prosecute pirates in the East African region. On 18 November 2013, the UN Security Council again raised the prospect of creating such chambers (Resolution 2125), following the UN Secretary General’s report on piracy off the coast of Somalia of 21 October 2013 (UNSG Report), which Matteo analysed here. This comes on the heels of a donor conference at which substantial funds were pledged to assist Somalia. It also comes as the failure to prosecute pirate kingpins has become increasingly conspicuous.

Background

In October 2011, the UN Security Council decided in Resolution 2015: “to continue its consideration, as a matter of urgency, without prejudice to any further steps to ensure that pirates are held accountable, of the establishment of specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support,” and requested the UN Secretary General to report on the modalities for the creation of such specialized chambers. The UNSG provided his report in January 2012 indicating the costs and estimated capacity of creating specialized chambers in several regional states and regions of Somalia, including Kenya, Tanzania, Seychelles, Mauritius, Puntland and Somaliland. Since that time, prosecutions have indeed continued in each of these countries, with some (mainly Kenya and Seychelles) bearing the burden. However, no specialized chambers have been created to date.

Backlog of Cases

The UNSG Report notes that 53 suspects are currently on remand for trial as pirates in Mauritius, Kenya and Seychelles. This is despite the significant contribution of the international community into prosecution and incarceration of pirates in the regular court systems of states such as Kenya, Mauritius and Seychelles, the most prominent being UNODC’s counter-piracy programme valued at $60 million. Resolution 2125 laments that “the continuing limited capacity and domestic legislation to facilitate the custody and prosecution of suspected pirates after their capture has hindered more robust international action against the pirates.” This translates to a backlog of cases in the judiciaries relied upon by the international community to prosecute such cases. As compared with regular criminal courts in these countries which suffer from significant backlogs, it is hoped that specialized piracy chambers with particularized knowledge of piracy cases would permit more efficient prosecutions.

Reduction but threat of resurgence

Apart from the persistent backlog of cases for past pirate attacks, the UNSG and UNSC indicate that the conditions are ripe for attacks to surge once again. While acknowledging the significant reduction of pirate attacks off the coast of Somalia, Resolution 2125 warns that this situation is reversible. More specifically, the UNSG concludes that “the situation with regard to the rule of law, security, development and governance in Somalia that has allowed piracy to arise has not changed sufficiently so as to deter criminals from attacking ships and holding seafarers hostage for ransom. Pirate attacks may increase if the international naval presence is reduced or if commercial vessels relax their self-protection measures.” He further estimates that due to the proceeds already collected from prior ransoms, pirates retain the capacity to attack vessels.  Finally, he indicates that “several pirate financiers are engaging in other criminal activities as well and that they have built significant paramilitary capacities on land, and thus have the potential to destabilize the region.” In short, the UNSG appears to call for continued action on piracy until pirate criminal enterprises have been dismantled. This would keep the international community busy for the foreseeable future.

Kingpins the focus

Resolution 2125 and the UNSG report discuss all pirate perpetrators, but the clear focus of both is on pirate kingpins, the failure to prosecute such high-level perpetrators, and the dangers this creates for the broader goal of stabilizing Somalia. The UNSG notes that “neither the Government of Somalia nor the Puntland administration nor any other local authority had seriously investigated and prosecuted any senior pirate leaders, financiers, negotiators or facilitators, and that the leadership of the principal piracy networks and their associates continued to enjoy impunity and had not been hindered in their ability to travel or transfer funds.” Resolution 2125 emphasizes that if specialized piracy courts are created, they must have jurisdiction over “anyone who incites or intentionally facilitates piracy operations, including key figures of criminal networks involved in piracy who plan, organize, facilitate, or illicitly finance or profit from such attack.” The focus is clear.

As we noted here, the identities of pirate kingpins are well-known. The difficulty has been tracing proceeds, obtaining evidence, and bringing that evidence to court (and likely gaining custody of the Accused). There have been efforts to foster international cooperation to prosecute pirates. Notably, the Regional Anti-Piracy Prosecution & Intelligence Coordination Centre (RAPPICC) in Seychelles promises to “bring together experts from around the world to share intelligence and information which will help to tackle the king-pins and financiers of piracy.” Yet, despite the significant international resources brought to bear on anti-piracy operations, including the deployment of navies and international assistance for local prosecutions, pirate kingpins have not been brought to justice.

Indeed the creation of such chambers could have little purpose, but for the prosecution of pirate kingpins considering (1) there are few new arrests of pirates as reported attacks are insubstantial and (2) it is completely unfeasible to prosecute low level offenders who have been caught and released since the evidence against them is destroyed as a matter of course (see Matteo’s post here). Perhaps the rationale behind supporting the specialized piracy chambers is that a complex prosecution of a pirate financier and pirate leader will be more feasible in a court with particularized knowledge and resources devoted to such trials.

Conclusion

To date, there appears to be a split in the UNSC on the issue of specialized piracy chambers, with some enthusiastically supporting the idea and others permitting its exploration but little else. In Resolution 2125, the UNSC notes with appreciation the substantial pledges of support at a recent donor conference for Somalia and reiterates its decision to continue to consider the establishment of “specialized anti-piracy courts in Somalia and other States in the region with substantial international participation and/or support.” Perhaps because donors have been forthcoming, the UNSC has chosen to re-launch the 2011 idea of specialized chambers. The UNSC also requests states including Somalia and other states in the region to report back on on their efforts to establish jurisdiction and cooperation in the investigation and prosecution of piracy.” Since specialized piracy chambers have been discussed for over two years with only a feasibility study to show for it, whether such chambers will come to fruition is uncertain. Particularly as pirate attacks are at a low ebb, donors may be reluctant to shell out cash for such a focused activity especially outside of Somalia (such as in Kenya and Seychelles) when Somalia is in dire need of funds in all sectors of its government.

From New Delhi to Rome (and Back) via Hamburg or The Hague: the Enrica Lexie Incident and the UNCLOS Dispute Settlement Mechanism

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The Italian Marines upon their initial return in Italy in December 2012. Will they remain for good?

The recent decision of the Italian Government not to return two Italian marines to India for trial in connection with the killing of Indian fishermen is heightening tensions between Italy and India and is spawning an international diplomatic fallout. Since its inception, the case attracted much debate and conjecture, both by the media but also by specialized political and legal commentators. We have provided our point of view, for instance here and here. In essence, Italy and India disagree on who has jurisdiction to try the Italian marines. Each of their respective arguments is premised on international law, notably the United Nations Convention on the Law of the Sea, as well as municipal law. India contends that it has jurisdiction to try the marines because (1) the victims were Indian nationals, (2) the victims were killed on an Indian ship and (3)  the incident occurred within India’s Contiguous Zone, which extends beyond its territorial waters. For its part, Italy claims it has jurisdiction to try the pair because (1) they are Italian citizens; (2) they were deployed as a Vessel Protection Detachment on the Italian ship Enrica Lexie and (3) the incident occurred within international waters. Worthy of note is that both countries, separately but concurrently, have indeed initiated criminal proceedings against the marines before their internal judicial systems.

Recently, the Italian government formally clarified that since the issuing of the Indian Supreme Court decision in January 2013 in this matter, indicating that the marines shall be tried by a special chamber set up within the Indian judicial system, it has pursued the cooperation of the Indian government under Articles 100 and 283 of UNCLOS for a settlement of this matter under international law. From a formal point of view, therefore, the actions of the Italian government are an attempt to bring the question of which State has jurisdiction to try the marines within the legal framework of UNCLOS provisions related to the settlement of disputes.

UNCLOS builds on the commitment by all United Nations Members States to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. In particular, one of the main characteristic of UNCLOS and its dispute settlement system is the possibility for a State Party to unilaterally trigger the compulsory and binding jurisdiction of certain judicial institutions for the resolutions of such disputes. Given UNCLOS comprehensive reach, the range of controversies subject to resolution varies, and includes issues relevant to seabed and maritime delimitation, navigation, fisheries and the environment, etc.

Part XV of UNCLOS requires States Parties to first attempt to settle any dispute between them by peaceful means and seek a solution in compliance with the United Nations Charter (Articles 279-280). Importantly, States Parties can agree to seek the settlement of the dispute by peaceful means of their own choice (Article 281), including recourse to general, regional or bilateral agreements (Article 282). Parties also have an obligation to exchange views on the possible settlement (Article 283) and can decide to submit the dispute to a non-binding conciliation (Article 284). Where, however, no settlement has been reached, UNCLOS stipulates that the dispute must be submitted at the request of either party to the dispute to a court or tribunal having jurisdiction in this regard (Article 286). The relevant rules contained in Part XV of UNCLOS are quite complex and foresee the possibility of seeking relief before different fora, depending on the subject matter of the controversy, also setting forth a series of exceptions and opt-outs. With regard to controversies akin to that concerning the Enrica Lexie incident, Article 287 of UNCLOS defines available courts or tribunals as the International Tribunal for the Law of the Sea, in Hamburg (ITLOS), or the International Court of Justice, in the Hague (ICJ). In ratifying the UNCLOS, Italy already declared its acceptance of the jurisdiction of either of these institutions as binding, while India reserved its rights to any such declaration. Alternatively, the parties might choose to refer the unsettled dispute to an ad hoc arbitral tribunal. A Party to a dispute not covered by a declaration in force shall be deemed to have accepted arbitration.  If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, this may be submitted to arbitration unless the Parties otherwise agree. Finally, any decision rendered by a court or tribunal having jurisdiction over the dispute shall be final and shall be complied with by all the parties to the dispute (Article 296).

Arguably, the positions of the two States on this matter have not been more discordant. Italy’s sudden decision not to return its marines to India is premised on a change in circumstances following the perceived lack of cooperation by the Indian authorities in resolving the dispute in accordance with international law. This in itself is considered by the Italian government as a dispute on the scope of application of UNCLOS. The Indian government, on the other hand, has reacted strongly and called the Italian decision “unacceptable”. The Indian Supreme Court is currently precluding the Italian Ambassador, who acted as a guarantor for the return of the marines to India, from leaving the country. While it is unclear whether the Italian Ambassador has any immediate intention to leave India, the Indian Supreme Court should be cognizant of the Vienna Convention on Diplomatic Relations (1961) which provides in Article 29 that the person of a diplomatic agent shall be inviolable. The Indian Supreme Court appears to misconstrue the Italian ambassador as a personal guarantor for the return of the marines, rather than a diplomatic agent of the Italian government. The two states maintain irreconcilable positions. India needs Italy to return the marines back on its soil to eventually commence a meaningful trial before its courts, while Italy needs India to comply with its international rogatory requests to complete its investigations into the matter, thus relaxing the jurisdictional dispute by bringing the marines to trial before its own courts.

ITLOS sits in Hamburg - Is the Enrica Lexie Case on its way there? Courtesy ITLOS

ITLOS sits in Hamburg – Is the Enrica Lexie Case on its way there? Courtesy ITLOS

The recent adjudication by the International Court of Justice in the Hissène Habré case provides useful guidance on the expected complexities of instances where the Parties cannot agree to settle their differences. The judgment of the Court in this case, particularly the findings concerning its admissibility, reveals several years of diplomatic exchanges between Belgium, which petitioned the Court, and Senegal, which was accused of neither prosecuting nor extraditing Mr. Habré, the former President of Chad, based on violations of the Convention Against Torture. The ICJ decision in Habre includes, in the first place, lengthy discussions on whether a disagreement occurred among the Parties, whether this could not be settled by them and whether the jurisdiction of the Court had been triggered.

Paradoxically, the divergences between Italy and India might facilitate recourse to compulsory jurisdiction with ITLOS or the ICJ. The route between New Delhi and Rome in the resolution of the Enrica Lexie incident therefore might  pass through Hamburg or The Hague. The voyage is far from clear and it will continue to be a perilous one.

UPDATE: Convictions in First Italy Piracy Trial

The 9 month-long piracy trial for the 2011 hijack of the Italian bulk carrier MV Montecristo, the first in Italian modern history, concluded last week in Rome with the conviction of all 9 Somali accused to prison terms of 16 and 19 years. We previously reported about this trial and Italy piracy laws here.

The accused were found guilty of attempted kidnapping for extortion and illegal possession of firearms. As the crime of kidnapping was only attempted, the maximum penalty range of 25 to 30 years of prison foreseen by the Italian criminal code was reduced by one third. During the trial, the accused unsuccessfully sought to be tried in the UK, in light of having been initially apprehended by UK forces, and challenged their transfer to Italian authorities. In accordance with Italian laws, the motivations for the verdict will be published within 3 months. All accused are likely to appeal the sentence, with some indicating to be ready to take the matter up to the European Court of Justice.

Interestingly, the prosecutors’ claim of the pirates connections with Al-Shabaab and the attack on the Montecristo being aimed at financing its terrorist activities and foster a campaign of obstruction of the free maritime transit in the Indian Ocean was rejected. Once again, this confirms the very tenuous links between the pirates’ business model and terrorism. In its latest report, the Monitoring Group on Somalia also found no evidence suggesting a structural or organizational link between Al-Shabaab and Somali pirate networks.

Another piracy trial will start on 4 December 2012, concerning the attempted hijack of the Italian oil tanker MV Valdarno on January 2012, off the Omani coast. The 11 Somalis charged with this attempted hijack opted for a plea bargain and are likely to receive a substantially reduced prison sentence.

Ahead of Security Council Debate, Secretary General Outlines Anti-Piracy Progress

As anticipated by Roger, on 19 November 2012 the UN Security Council is scheduled to hold an open debate on piracy as a threat to international peace and security. The meeting is called under the auspices of India’s current presidency. Earlier this month, the Council already approved the extension of the UN-AU joint military mission in Somalia (AMISOM) until March 2013, in another effort to provide continuity in security and governance to the current state authorities. Yet, the Council failed to reach an agreement on the funding of a maritime component for AMISOM. The Council also received the latest 3-montlhy report of the Sanctions Committee for Somalia. The briefing included an update on requests received by the Committee for exemptions to the on-going arms embargo on Somalia. It appears that calls by the African Union for a partial lifting of the arms embargo to strengthen Somalia’s poorly equipped military were so far unsuccessful.

Nigerian Troops Attached to AMISOM on Patrol in Mogadishu – Press TV

The upcoming debate will review the most recent UN Secretary General efforts to combat piracy in the Gulf of Aden region, contained in his latest report on this matter. The report covers the most important activities relevant to the fight against piracy launched by or in cooperation with the UN following the Council’s Resolution 2020 last year. These include the progress in prosecution, detention and transfer of convicted pirates, the activity of the main UN bodies and of the Contact Group on Piracy Off the Coast of Somalia, naval patrolling and anti-piracy capacity building in the region as well as a number of international conferences. Throughout the year, we have covered these issues here, here and here.

Interestingly, the report takes quite a direct stance on the impact of illegal fishing and illegal dumping toward piracy:

64.  Some observers continue to argue that illegal dumping of toxic waste and illegal fishing off the coast of Somalia is one of the factors responsible for forcing Somali youths to resort to piracy and attack foreign vessels because such activities deprive them from engaging in gainful employment opportunities. However, the United Nations has received little evidence to date to justify such claims. Most pirate attacks have been carried out against large merchant vessels several hundred nautical miles off the coast of Somalia.

65.  As for the dumping of toxic waste on land and at sea, while this may have occurred a few years ago in the waters off the coast of Somalia, there is no evidence of such activities currently. Concerns about the protection of the marine environment and resources should not be allowed to mask the true nature of piracy off the coast of Somalia, which is a transnational criminal enterprise driven primarily by the opportunity for financial gain.

The possibility for a specialized judicial structure solely devoted to investigate and prosecute piracy cases is also still gaining some momentum. The report refers to the initiative by Qatar for the establishment of a “special court for piracy” in the Gulf State (para. 42). As a first step, a delegation from UNODC and the Contact Group on Piracy off the Coast of Somalia visited Qatar last September for detailed discussions with the Qatari authorities. Additional initiatives pertain to a possible direct involvement of the UN in anti-piracy policing activities. The Asian Shipowners’ Forum called for the establishment of a multinational anti-piracy military task force under the auspices of the UN that could be deployed, a sort of UN Peacekeeping Vessel Protection Detachment on board of merchant ships (para. 43). These developments are not ripe for further exploration in the Secretary General report, but they raise fascinating preliminary legal issues. For instance, on the jurisdiction of special criminal fora, rule of law enforcement and the immunity of peacekeepers in connection with the prevention and punishment of universal jurisdiction crimes, that are worth considering for discussion in the near future.

Unused Pirate Skiffs in the Somali Town of Hobyo – AP

The most updated figures show a significant drop of both attempted and successful piracy attacks in the Gulf of Aden and the larger Indian Ocean area, speaking volume of the regional, international, government-lead as well as the private industry’s efforts in combating piracy. With the end of the monsoon season and the possible risk of disengagement by the international community as Somalia continues its current path of democratization, the jury is still out on how effective these efforts have been and what, if any, the pirates’ next move will be. These concerns are addressed in the report, which also recalls the need to add focus on land-based solutions to piracy:

74.  The recent gains made by the international community in its collective fight against piracy off the coast of Somalia are encouraging. However, although there are signs of progress, they can be easily reversed. Until the root causes of piracy, namely, instability, lawlessness and a lack of effective governance in Somalia, are addressed, counter-piracy efforts must not be minimized. In particular, ongoing efforts to build the rule of law and livelihood opportunities ashore should be intensified.

75.  A significant gap still exists in land-based programmes in Somalia to address piracy. This is primarily owing to the lack of security on the ground and lack of sufficient funding to support capacity-building and alternative livelihoods. An ever greater emphasis must now be placed on providing focused assistance to States in the region and to authorities in Somalia to build their capacity to deal with the institutional and operational challenges to governance, the rule of law, maritime law enforcement and security, and economic growth. In addition, counter-piracy actions should run alongside a concerted effort to rebuild the civil structures and institutions of Somalia in close cooperation with the Somali authorities and civil society.

76.  The successful end of the political transition in Somalia should act as a catalyst to address the root causes of piracy. I encourage the new Government to develop a comprehensive national counter-piracy strategy, working closely with the regional administrations and neighbouring States. This should include efforts to facilitate the development of skills necessary to earn sustainable incomes in such sectors as agriculture, livestock, fisheries and industry. I also call upon the Somali authorities to adopt appropriate counter-piracy legislation without further delay to ensure the effective prosecution of individuals suspected of piracy and to facilitate the transfer of prosecuted individuals elsewhere to Somalia. The new Government should proclaim an exclusive economic zone off the Somali coast in accordance with the 1982 United Nations Convention on the Law of the Sea.

77.  Although pirates’ proceeds decreased significantly in 2012 owing to a lower number of executed attacks, militias and parallel illicit activities sponsored by pirate money will continue to pose a threat to the stability and security of Somalia. It is imperative that pressure on Somali pirates and their business model be maintained.

The current lull in piracy activity in Somalia is, however, matched by a growing rise of violent robbery-style pirate attacks in West Africa’s Gulf of Guinea, often connected with other illicit activities of a transmaritime and transnational nature. The Security Council already held an open debate on piracy in West Africa in October 2011. For the first time, the upcoming debate within the Security Council will provide the opportunity for a joint and integrated discussion on piracy in both East and West Africa. Hopefully, it will also be capable to provide for an opportunity to confront these differing realities, identify their root causes and peculiarities and, most importantly, share the relevant lessons learned on the ground so far. We will closely follow the debate and report on its achievements, or failures, as soon as possible.

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.