Kiobel Oral Argument: Piracy May Spell Trouble for Shell

October 3, 2012 by Leave a comment

The Supreme Court opened up its October term with a healthy dose of international law in Kiobel v. Royal Dutch Shell. The petitioner, Esther Kiobel, is bringing suit against Royal Dutch Shell (Shell) alleging that the oil company aided and abetted the Nigerian government in committing gross human rights violations in the oil rich Ogoni region of Nigeria.

This is the second time this year that the Court has heard Paul Hoffman’s arguments in favor of the plaintiffs and Kathleen Sullivan’s arguments on behalf of Shell, and maritime piracy played a role in both rounds of arguments.

The first round of Kiobel oral arguments considered whether the Alien Tort Statute (ATS) could be applied to corporations as well as natural persons. There, Justice Breyer evoked the concept of “Pirates, Incorporated” to inquire into whether an in rem action against an 18th century pirate could be foreclosed because “Pirates, Inc.” rather than the individual pirate, owned the property at issue.

The United States Supreme Court

In the second round of oral arguments, held yesterday morning, the issue had changed from whether the ATS can be applied to corporations to whether it can be applied extraterritorially. Despite this change of focus, maritime piracy played an even more important substantive role in the second iteration of the Kiobel arguments than the first.

Piracy first came up when Justice Scalia asked Royal Dutch Shell’s attorney, Kathleen Sullivan, whether she believed – as Scalia thought she “must” – that the ATS applied to high seas conduct. She did not. Ms. Sullivan then quickly tried to turn her argument to the Marbois incident concerning an assault on a French diplomat.

But Chief Justice Roberts immediately raised the question of piracy again, noting that “it was the most clear violation of an international norm” at the time of the ATS’s passage.

Ms. Sullivan again attempted to minimize her high seas argument, noting that even if the justices concluded that the ATS reached high seas conduct, it does not extend into the territory of another state. However, she doubled down when she argued that Sosa v. Alvarez-Machain – the last ATS case heard by the Supreme Court – does not foreclose the possibility that the ATS’s reach stops at the high seas, as that opinion stated that piracy might be an area covered by the statute.

Despite her repeated attempts to stray away the issue of piracy, the oldest international crime came up again and again, including in the context of Filartiga v. Peña-Irala, where the Second Circuit held that, “[f]or the purposes of civil liability, the torturer has become – like the pirate and slave trader before him – an enemy of all mankind.”

As Shell’s attorney, Ms. Sullivan wished to steer clear of the issue of maritime piracy for several reasons. The first is that the Supreme Court explicitly found that the First Congress meant to include piracy as one of three torts available to 18th century ATS plaintiffs. The Supreme Court would likely be reluctant to admit that it was wrong less than a decade after Sosa was handed down.

Second, foreclosing ATS claims that occur on the high seas is the furthest possible extension of the respondents’ argument, one that the majority need not adopt to reach the respondents’ desired verdict.

Finally – and this may have been what Justice Scalia was getting at when he initially posed the question – it is difficult to find an example of an American law that applies on the high seas but not on foreign soil.[1] The presumption against extraterritoriality is purely a creature of Congressional intent, and it seems that Congress rarely distinguishes between the high seas and foreign soil when considering a statute’s extraterritoriality.

If the conservatives on the Supreme Court find the argument that ATS application on the high seas and on another country’s soil rises and falls together persuasive, there is enough historical evidence that the ATS was meant to apply to piracy that more newly-minted universal violations could ride on piracy’s coattails and allow for extraterritorial application of the ATS.

The effect such an opinion would have on pending litigation over a high seas requirement for facilitators of piracy is better saved for another day.

[1] Depending on the ultimate outcome of pending litigation, a notable exception to this general rule could be, however ironically, 18 USC § 1651, the statute criminalizing piracy.

Filed under Worldwide Tagged with , , , ,

Weekly Piracy Review – Chinese and Malay Prosecutions

September 28, 2012 by Leave a comment

This week Matteo blogged about Burmese drug runner Naw Kahm and his gang pleading guilty in court in China last week to charges for their attack on Chinese boat crews on the Mekong river in the Golden Triangle area where the borders of Laos, Myanmar, and Thailand come together.

7 Somalis are facing Piracy charges in Malaysia source:BBC News

It was also widely reported this week that the number of attacks by Somali pirates on commercial vessels is so far decreased this year from the numbers seen between 2009 and 2011 (46 and 47 vessels were hijacked in 2009 and 2010 respectively, and in 2011 a record 176 vessels were attacked – though only 25 were commandeered). So far in 2012 Somali pirates have seized only five vessels. It would be rash, however, to assume that this indicates the era of Somali piracy is coming to an end. According to the EU Navy, Somali pirates still hold seven ships and 177 crewmembers. Additionally, the monsoon season in the Arabian Sea, which generally limits the movement of ships in the area, is nearly over. With calmer seas ahead it will likely be crucial that the cooperative military efforts, increased communication between merchant ships and patrols, and heightened defenses and vigilance on the ships in the area remain in place.

Finally, there were important new developments in the prosecution of seven suspected Somali pirates being held in Malaysia occurred on September 26. After extensive delays in the trial proceedings due to efforts to procure attorneys and interpreters for the Somali defendants in Malaysia, on Wednesday, prosecutors offered a plea bargain to the seven pirates suspected of hijacking the MT Bunga Laurel in the Arabian Sea. Originally charged with firing at Malaysian armed forces while committing a robbery, an offense punishable by death, the seven defendants now have the opportunity to plead to guilty to lesser charges. The bargain offered is to enter a guilty plea for using weapons with the intent to prevent arrest, which carries a maximum sentence in Malaysia of 14 years imprisonment.

These seven men are charged with attacking the Malaysian tanker in the Gulf of Aden in January of 2011. While en route to Singapore the tanker, which was carrying oil worth an estimated $10 million, was attacked by a group of pirates. Allegedly, the men suddenly boarded the tanker at night, armed with AK47s. The 23 members of the crew locked themselves in a safe room on board and activated an emergency distress signal, which was picked up by a Malaysian Naval vessel patrolling the Gulf at the time. Two hours later the vessel, along with a Malaysian attack helicopter, arrived at the commandeered MT Bunga Laurel. After a shootout between the Malaysian armed forces and the seven pirates on board the ship, all seven were taken into custody.

So often it is the case that those suspected of piracy are released after being apprehended, as it is difficult to locate a court where they may be tried. After rejecting a motion to dismiss on the grounds that the events took place in international waters, the State of Malaysia asserts jurisdiction over these men based on the fact that the alleged acts of the accused of threatened the security of Malaysian citizens i.e. jurisdiction was based on the protective principle.

The trial has been put on hold until October 8, 2012 to allow the suspects a chance to determine whether they will accept the plea bargain offered to them this past week. Their decision will likely result in further questions of the application of Malaysian law to Somali citizens, whether they decide to settle or seek trial. We will provide updates in future Weekly Piracy Reviews.

Filed under Somalia

POST #100 – Developing Consensus on Specialized Piracy Chambers

September 28, 2012 by 3 Comments

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.

Filed under Somalia Tagged with , , , , ,

In Brief: the Journal of International Criminal Justice – Symposium on Somali Piracy

September 27, 2012 by Leave a comment

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.

Filed under Somalia Tagged with , , , , , , , , , , ,

The Mekong Pirates on Trial

September 24, 2012 by Leave a comment

For 3 days at the end of last week, the Intermediate People’s Court in Kunming, the capital of the Yunnan Province in southwest China, was the stage for yet another high profile, yet swift, criminal trial. The case involved the mysterious murder of 13 Chinese sailors on the Golden Triangle’s area of the Mekong River in October last year. We have blogged about the incident here, focusing in particular on China’s unprecedented role in strengthening law enforcement in the strategic Mekong River basin. Since the murders, Laos, Vietnam, Myanmar and even Thailand joined China in holding several military patrols across the lawless boundary waters.

The Mekong River Trial in Session at the Intermediary People’s Court in Kunming

The murders, one the deadliest assault on Chinese nationals oversea, sparked a large public outcry in China. It therefore comes as little surprise that the trial attracted much attention from the Chinese press. Among the 6 defendants was Naw Kham (aka Nor Kham aka Jai Norkham),a member of Myanmar’s Shan ethnic minority and a notorious once-untouchable drug lord and gang leader who for years is thought to have ruthlessly run the drug and other illicit trade in the Golden Triangle area. Naw Kham was arrested in April in Laos in another joint military sting operation and traded over to China shortly thereafter. Prior to his arrest, only two blurred pictures of Naw Kham were said to exist.

Naw Kham is Extradited to Beijing amid Tight Security – Xinhua

Much of the news regarding the investigation and trial is limited to Chinese media, with only a few outlets providing reporting in the English language. The holding of the trial has been hailed as another example, further to the joint river patrols, of China’s growing concern over cross-border security issues and its novel policy of regional cooperation in combating international crimes. Indeed, it is unlikely that the arrest and trial of the alleged perpetrators could have taken place in such a swift manner without China’s involvement. As discussed in another previous post, most notably this policy included China’s unprecedented participation in the international anti-piracy patrols off the coast of Somalia and in the larger Gulf of Aden area. Chinese media praised the trial as a model of judicial cooperation, coupling armed drug trafficking gangs on the Mekong and Somali pirates as “common enemies of mankind” and calling for their prosecution as a duty of all States. This is a remarkable development in the debate over the universal nature of piracy prosecution but also, leaving piracy aside, in the more controversial debate over modern China’s sovereignty and its role in large-scale international cooperation. However, China’s sudden primary stance in the Mekong murders also seems to be a show of strength in view of other disputes concerning the economic development in the Mekong River basin as well as in other areas of economic interest in Asia.

After allegedly confessing his role in the Mekong River murders upon his arrest and recanting it in a recent interview, the media reports that Naw Kham partially admitted knowledge of the murders at the beginning of the short trial, which then concluded with his full admission of guilt and plea for leniency. All other defendants, members of Naw Kham’s gang, promptly confessed their responsibility upon the opening of the trial. They were all accused of murder, drug trafficking, kidnapping and hijacking and now face the possibility of the death penalty. During the trial, simultaneous interpretation was provided in Laotian and Thai to accommodate the testimony of foreign policemen and witnesses from Laos and Thailand. Such testimonies are apparently unprecedented in Chinese judicial proceedings. China asserted jurisdiction over the case upon its direct links with the crimes and the victims as well as within the general framework of regional cooperation within the Mekong River. Chinese media also praised the trial as a demonstration of the efficiency of Chinese judiciary to the rest of the world. From an international justice perspective, however, doubts still remain as to the procedural fairness and completeness of such fast-paced trials whose outcome increasingly relies on the defendant confession. Interestingly, the arrest and trial of Naw Kham seems to have fallen under Interpol’s radar, as at the time of writing Naw Kham still remains on its Most Wanted Fugitive List.

Naw Kham Arrives in Court Blindfolded – Not a Common Procedure Everywhere – Xinhua

According to the prosecution, the Chinese boat refused to pay protection money for safe-passage in Naw Kham controlled areas and the murders were framed as a drug related incident to set an example. Several aspects of the murders, however, remain unclear. In particular, one possibly relevant factual element of the case appears to have been given limited consideration, namely the alleged participation in the murders of 9 members of the Thai military, part of an army unit responsible for security along the Mekong. Initial investigations by Chinese authorities already revealed a role played by a group of Thai military. It is still unclear whether they acted in collusion with Naw Kham’s gang. Investigation by Thai authorities, who are currently holding the soldiers as suspects, appear to show conclusive and corroborative evidence of the Thai soldiers shooting at the Chinese boats once they crossed over into Thailand.

Filed under International Rivers, Somalia, South East Asia Tagged with , , , , ,

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