Piracy – Not just Kiobel’s Analogy

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

In Brief: UNDP Human Development Report for Somalia – Youth Empowerment Is Key

Aerial view of a typical homestead on the outskirts of the southern Somali port city of Kismayo – Credit: UN Photo/Stuart Price

The United Nation Development Programme released its Somalia Human Development Report 2012. The Report, the first since 2001, discusses the factors behind Somalia’s conflict and state collapse in the past 20 years, and focuses on the enormous potential that lies in empowering Somali youth to become an engine of peace-building and development.

Key data

  • Somali development and humanitarian indicators are among the lowest in the world;

  • Over 70 percent of Somalia’s population is under the age of thirty;

  • The youth population in Somalia may continue to swell due to high fertility rates, estimated at 6.2 births per women between 2010 and 2015;

  • Overall unemployment among people aged 15 to 64 is estimated at 54 percent in Somalia, up from 47 percent in 2002;

  • The unemployment rate for youth aged 14 to 29 is 67 percent—one of the highest rates in the world; women lose out more, with unemployment rates at 74%, compared to men at 61%;

  • Life expectancy in Somalia is 50 years, up from 47 in 2001;

  • Over 60% of youth have intentions to leave the country for better livelihood opportunities;

  • Somalia ranks as one of the worst countries worldwide for women. Gender-based violence and discrimination against Somali women is widespread.

In particular, the Report estimates that, since 1991, the international community, including the Somali diaspora, has collectively spent just over $55 billion in responding to Somalia’s conflict, of which Piracy accounts for about 40%, followed by humanitarian and development aid; remittances; peacekeeping and military responses, counter-terror initiatives; and costs associated with international crime and illicit financial flows.

Private or Pirate Navy?

Puntland Marine Police Forces source:Somaliareport.com

The autonomous region of Puntland in Somalia has gotten a bad rap for being a hotbed for pirates. Though unrecognized as a state, there has been some international expectation that Puntland should take steps to prevent and punish acts of piracy, particularly those originating from within Puntland. In this regard, there have been efforts to create a Puntland coastguard or Navy (the “Puntland Maritime Police Force”), bankrolled by the United Arab Emirates and with training from private security firms. This is where the story of Sterling Corporate Services takes off. The New York Times reports:

Concerned about the impact of piracy on commercial shipping in the Middle East, the United Arab Emirates has sought to take the lead in battling Somali pirates, both overtly and in secret by bankrolling operations like Sterling’s.

[…]

A United Nations investigative group described the effort by a company based in Dubai called Sterling Corporate Services to create the force as a “brazen, large-scale and protracted violation” of the arms embargo in place on Somalia

[…]

Sterling has portrayed its operation as a bold private-sector attempt to battle the scourge of piracy where governments were failing.

Somalia Report notes that the UN effectively shut down the estimated $50 million per year program by threatening sanctions against UAE for violations of the Somalia arms embargo. In addition to the illegal shipments of arms, the program may have been a criminal pirate enterprise.

A Private Navy?

There is an argument that private navies are legally permissible under the law of the sea, particularly the legal regime governing anti-piracy operations on the high seas. Such navies are permissible if the navy is “on government service and authorized to that effect” pursuant to Article 107 of UNCLOS. The idea here is that a government may hire private companies to engage in police functions so long as it is made explicitly clear by markings and identification that the ship is controlled by the government and under a presumably military chain of command. It has been argued that ships on government service could not only provide self-defence to an escorted ship but could also engage in pirate hunting. Alternatively, if a private navy is not on government service but limits its actions to those justified by individual (as opposed to sovereign) self-defence, it may also be legally permissible. Here, aggressive acts would be strictly limited to those necessary to repel an attack, as is consistent with general principles of the law of self-defence. It would not include acts intended to prevent future attacks.

This is where the status of Puntland as an autonomous region becomes important. Though the international community has chosen to engage the Puntland government, it has chosen not to recognize Puntland’s sovereignty instead deferring to the project of solidifying the new Somali Federal Government in Mogadishu. Therefore, naval vessels patrolling the territorial waters of Somalia off of the coast of the autonomous region of Puntland are not “on government service” for purposes of Article 107 of UNCLOS.

Alternatively, there is some evidence that other states may have supported the Puntland Navy:

American officials have said publicly that they never endorsed the creation of the private army, but it is unclear if Sterling had tacit support from parts of the United States government. For instance, the investigative group reported in July that the counterpiracy force shared some of the same facilities as the Puntland Intelligence Service, a spy organization answering to Puntland’s president, Abdirahman Farole, that has been trained by C.I.A. officers and contractors for more than a decade.

Even if this is the case, the Puntland naval vessels are not “clearly marked and identifiable as being on government service” by a recognized sovereign such as the United States or the UAE. Therefore, seizing pirates on the high seas would not be justified pursuant to Article 107 of UNCLOS.

A Pirate Navy?

This raises the question of whether an act of violence by the Puntland Navy against another ship on the high seas constitutes piracy. Although there is some continuing debate as to the “private ends” requirements in Article 101 of UNCLOS, the better view is that it excludes from the definition of piracy, acts of violence by a sovereign. As Puntland is not a sovereign power, this exclusion from the definition of piracy does not apply. Therefore, acts of violence, detention or depredation committed by a Puntland Navy on the high seas (even if purportedly for the purpose of protecting the territory and people of Puntland) would constitute acts of piracy.

As noted above, the other possible justification for the seizure of pirate vessels on the high seas by the Puntland Navy is the doctrine of personal self-defence. This would justify acts strictly necessary to repel an ongoing attack. It would not justify acts of violence against suspected pirate vessels prior to an attack. Nor would it justify acts within the typical mandate of a sovereign navy or coast guard, including patrolling waters and interdicting ships.

The International community was displeased that Sterling was training these individuals because it was an apparent violation of the arms embargo imposed on Somalia. But, technically, Puntland’s Navy may have also been engaged in acts of piracy.

Territorial Waters

The Puntland Navy was also likely conducting operations within Somalia’s territorial waters which are part of the sovereign territory of the Somali Federal Government. The latter has the exclusive right to protect its territorial waters and to restrict traffic through this zone (See e.g. Article 25 UNCLOS “Rights of protection of the coastal State”), although a number of Security Council Resolutions have given foreign sovereigns some powers of interdiction in these waters as an exceptional measure. It is theoretically possible that the Somali Federal Government would attempt to delegate this coast guard function to an autonomous region’s forces such as the Puntland Navy. But it is unclear if this would be permissible pursuant to international law or whether Puntland would be willing to act on behalf of the Somali Federal Government, as opposed to under its own asserted authority as a sovereign.

Free Agents

The more practical question, now that the funding for Puntland’s Navy has disappeared, is what will happen to the individuals who were trained by Sterling. The New York Times reports:

With the South African trainers gone, the African Union has turned to a different security contractor, Bancroft Global Development, based in Washington, to assess whether the pirate hunters in Puntland can be assimilated into the stew of other security forces in Somalia sanctioned both by the United States and the African Union. Among those groups are a 10,000-man Somali national army and troops of Somalia’s National Security Agency, based in Mogadishu, which is closely allied with the C.I.A.

[…]

But with the antipiracy army now abandoned by its sponsors, the hundreds of half-trained and well-armed members of the Puntland Maritime Police Force have been left to fend for themselves at a desert camp carved out of the sand, perhaps to join up with the pirates or Qaeda-linked militants or to sell themselves to the highest bidder in Somalia’s clan wars — yet another dangerous element in the Somali mix.

Pirate Attacks Hit “Low Season” in Somalia – Why and What’s Next?

According to the International Maritime Bureau, pirate attacks off the coast of Somalia continued to fall sharply in the first half of 2012.  July 2012 was particularly significant, with no reported attempted attack. Remarkably, it was the first full month with no noteworthy pirate activity off the coast of Somalia and the larger Indian Ocean since at least half a decade. The last reported attack dates back to 26 June 2012, when a Maltese-flagged bulk ship was fired upon near the Yemeni coast. As of 29 July 2012, Somali pirates are still holding at least 11 vessels and 174 crew members.

A piracy situational map we’ve rarely seen – Courtesy Oceanus Live

The suprising drop in Somali pirate activity is spurring a debate on the reasons behind it and the impact of the international efforts to counter pirate attacks. Among the main factors are the pre-emptive and disruptive counter piracy tactics employed by the international navies, with military operations now extending both at sea and on land, the effective implementation of the Best Management Practices by the shipping industry, including the use of citadels and other ship hardening means, the strengthening of a regional judicial system of law enforcement and prosecution, also targeting piracy financiers and kingpins, and in particular, the manyfold increase in the use of Privately Contracted Armed Security Personnel and government-provided Vessel Protection Detachments by ships travelling through the area. It is likely that all these factors together and concurrently have contributed to the falling numbers, tipping the risk aspect to rise above the possible profit expectations for wannabe pirates. Bad monsoon weather is also an additional factor often overlooked, with July and August being traditionally difficult months to set off to sea in the region for both pirate mother ships and small skiffs.

What’s Behind the Horizon?

The current status quo requires the operational strategy to continue and focus also on wider land-based solutions encompassing both security and economic development. Some commentators have warned that pirates and their financiers are simply sitting idle awaiting for better days to come.  Notably, August 2012 will mark the end of the Somalia TGF. While there are high hopes for a better future for Somalia, it is difficult to assess how this will reshape the Country’s current political landscape. There are also fears that the successes of current anti-piracy measures will detract the necessary attention below warning levels with a consequential lull in the international and national effors to combat piracy. If so, the momentum could shift back in the pirates’ favor.

Efforts to Support Somalia-based Prosecutions Continue

Following a recent trial in the UAE resulting in the conviction of 10 pirates, the UAE has announced that it will host a training of Somali judges to buttress local, Somalia-based prosecutions. The UN report from January recommended regional prosecutions, in lieu of an international court, to tackle the expanding docket of Indian Ocean piracy cases without an obvious home. Such prosecutions were recommended and have continued in regional states, including Kenya, Tanzania, Mauritius, and Seychelles. Moreover, the UN report suggested that the break-away regions of Somaliland and Puntland, as well as the Transitional Federal Government in Mogadishu, would be appropriate locations for prosecutions. Since then, violence against the judiciary and fair trial concerns have arisen in Puntland in particular. Nonetheless, the UAE judicial training, apparently supported by the French ministry of foreign and European affairs, will identify and train judges from Puntland, Somaliland and the TFG. The move is consistent with efforts to funnel the piracy issue back to Somalia as regional states grow tired of bearing the brunt of the prosecutorial burden. The UAE report notes:

The Kenyan ambassador to the UAE Mohamed Gello said prosecuting pirates in neighbouring countries such as his was also a strain on resources.”Any move that will help the Somali judicial system effectively deal with pirates is welcome,” Mr Gello said. “This sends the right signals that law and order is slowly being restored, along with the administration of justice. “It is crucial to build confidence in the judicial system and for the pirates to be dealt with in their own country.”

Funneling Pirates Back to Somalia