A Proposed African Court with Jurisdiction Over Piracy: How Will This Work?

It is our pleasure to introduce Oliver Windrige as today’s guest contributor.

Oliver Windridge is a British lawyer specializing in international human rights and international criminal law, currently based in The Hague, Netherlands. He is founder of the blog The ACtHPR Monitor, on twitter @acthpr_monitor. In June 2014 Oliver was one of five non-African lawyers to be appointed to the Court’s inaugural List of Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of any organisation affiliated to the author.

Following on from my recent post at The ACtHPR Monitor on the future African Court on Justice and Human Rights (ACtJHR), this post explores at further length one of the other 14 crimes which will fall under the jurisdiction of the ACtJHR – piracy.

As a brief introduction and recap, the African Court on Justice and Human Rights is a proposed African Union backed court. The ACttJHR has yet to become operational, requiring ratification from at least 15 African Union member states. Once operational, the ACtJHR will consist of three sections; a general affairs section dealing with commercial and civil matters, a human rights section that will replace the current African Court on Human and Peoples’ Rights, and an international criminal section which will have an ambitious jurisdiction over 14 international crimes including piracy as well as genocide, crimes against humanity and war crimes.

That piracy is one of the ACtJHR’s 14 crimes is worth noting in and of itself. Since the court will have the backing of at least 15 AU member states it can be said to be a truly international, albeit continental, court and therefore can safely be referred to as the first international court with the jurisdiction to try piracy cases (the International Criminal Court (ICC) does not have jurisdiction over piracy). Until now the international element of piracy cases has been often seen as international cooperation in manning the seas, but it has been national jurisdictions- most notably in the Seychelles, Kenya and Mauritius- which have born the burden of prosecuting the cases, albeit with financial and professional help from other countries. The inclusion of piracy in the ACtJHR Statutes moves the cases themselves into the international arena and has the potential to bring piracy into a truly international setting, thus alleviating the burden from individual countries to prosecute these cases.

As to the law itself, Article 28F of the ACtJHR’s draft Statute defines piracy as follows:

a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private boat, ship or a private aircraft, and directed:
i. on the high seas, against another boat, ship or aircraft, or against persons or property on board such boat, ship or aircraft;
ii. against a boat, ship, aircraft, persons or property in a place outside the jurisdiction of any State
b) any act of voluntary participation in the operation of a boat, ship or of an aircraft with knowledge of facts making it a pirate boat, ship or aircraft;
c) any act of inciting or of intentionally facilitating an act described in sub paragraph (a) or (b).

This definition is an exact replication of Article 101 of the United Nations Convention on the Law of the Sea with the addition of “boat” alongside ship or aircraft throughout.  This is unsurprising given the Convention’s almost universal position as reflecting customary international law on piracy.

Article 28N of the ACtJHR Statute also sets out the modes of liability through which accused can be commit piracy, as follows:

An offence is committed by any person who, in relation to any of the crimes or offences provided for in this Statute:

i.                    Incites, instigates, organizes, directs, facilitates, finances, counsels or participates as a principal, co-principal, agent or accomplice in any of the offences set forth in the present Statute;

ii.                  Aids or abets the commission of any of the offences set forth in the present Statute;

iii.                Is an accessory before or after the fact or in any other manner participates in a  collaboration or conspiracy to commit any of the offences set forth in the present Statute;

iv.                Attempts to commit any of the offences set forth in the present Statute.

These modes of liability apply to all 14 crimes under the Court’s jurisdiction.  It is interesting to note how some of these modes of liability mesh with the piracy definition: for example, Article 28F(c) refers to inciting piracy as a crime whereas Article 28N(i) refers to inciting as a mode of liability.

Despite these small issues regarding the relationship between the definition of piracy and modes of liability, the ACtJHR Statute raises many more practical questions, not least of which is whether this court can really work?

Regarding jurisdiction, under Article 46F of the ACtJHR Statute, the ACtJHR will be able to exercise its jurisdiction over piracy cases where:

1. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party;

2. A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Assembly of Heads of State and Government of the African Union or the Peace and Security Council of the African Union.

3. The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 46G.

Therefore, even if countries with prevalent piracy issues such as Somalia are not a state party to the ACtHJR the Court will be able to exercise jurisdiction to hear the case if it is referred to by another state party, which raises the possibility of countries directly affected by piracy, for example Kenya or Tanzania, referring piracy matters to the Court.

An interesting issue will be the capture of alleged pirates irrespective of who referred a piracy matter to the Court. Whilst there is general agreement that universal jurisdiction allows third party states to capture pirates who may be nationals of non-ACtJHR member states, it will be interesting to see how the interplay works between their capture and the handing over to the ACtHJR, since this process may result in several countries being involved.  For example, piracy off the coast of Tanzania referred to the ACtJHR by Kenya could lead to the capture of Somali alleged pirates by the British Navy who could then be transferred to the ACtJHR for trial.

Presumably, a memorandum of agreement or understanding will need to be drafted between those authorities patrolling the seas around Africa who are not member states of the ACtJHR, for example the British Navy, and the ACtJHR.  Such a memorandum would need to specify that patrolling authorities which are not member states of the ACtJHR will hand over into the custody of the ACtJHR persons captured allegedly committing piracy once a matter is referred to the Court. The transfer of individuals would be the same as suspects for genocide, crimes against humanity or other crimes. That the suspects would be detained by third party states also would not be dissimilar to an accused being detained by a third party (for example a Rwandan being detained in Kenya)

The power of these patrols to carry out arrests would be unlikely to attract debate since it is long recognized that piracy enjoys universal jurisdiction. However, capture raises the issue of indictments. Under the ICTR, ICTY, ECCC, SCSL and ICC, indictments are issued against named persons, almost always not in the custody of the court. With piracy cases, however, it is far less likely that such named person indictments can be issued unless for particularly notorious leaders or land-based backers. Instead, the bulk of piracy arrests and transfers to the ACtJHR are likely to be those picked up on the high seas by patrols who find them. These alleged pirates will not be previously known to the authorities and will therefore not have named indictments issued against them unless a blanket indictment was somehow issued which would be fraught with additional legal issues.

The lack of indictment is not necessarily a problem- people are arrested and detained for criminal offences at the national level everyday without outstanding indictments- but it is likely to be an administrative headache to process new indictments and still uphold the suspect’s rights to a first appearance without delay. This is to say nothing of the fact that the process of handling suspects without outstanding indictments is fundamentally different to that of suspects wanted for crimes such as genocide and crimes against humanity where a prosecutor often spends considerable time crafting indictments based on research and investigations. The difference between these indictments means that piracy prosecutions even within a international court such as the ACtJHR are likely to have more in common with a domestic robbery case than that of a genocide case. On the positive side, this could well mean a more efficient process since indictments would be relatively short, containing small numbers of charges and therefore lead to shorter trials, with smaller amounts of evidence and fewer witnesses required. On the negative side, these cases could be slowed down by a prosecutor having to put together a case only once an alleged pirate has been captured. This process of only starting investigations once a suspect is detained has the potential to massively slow down the whole judicial process and may well run counter to the prosecution office’s processes for trying crimes such as genocide and crimes against humanity.

In reality, this could mean the ACtJHR international criminal law section will effectively contain two strands- a fast track/small cases chamber to deal with matters such as piracy and a second strand which would deal with larger cases of genocide, crimes against humanity, war crimes etc.

In addition, some of the long held problems of prosecuting piracy at an international level may well come to the fore once the ACtJHR is up and running, namely the unwillingness of some countries to financially back prosecutions that have a large commercial element. Without wishing in any way to diminish the undoubtedly harrowing ordeals hostages are subjected to, there remains the fact that the victims of piracy include wealthy shipping and cargo companies- not the type of victims which usually illicit much sympathy from the international community. The issue of victims also leads to the issue of prosecuting piracy cases at the international level at all. As is often stated, the prosecution of crimes such as genocide and crime against humanity is more than just the prosecution of individuals but also the international community’s rejection of policies or ideals which lead to the crimes committed, as well as the international community’s condemnation of crimes it considers unacceptable and abhorrent. When it comes to piracy, there are no such policies or ideals- piracy occurs for financial reasons.  Although it is recognised that the money may be financing an ideal or policy equally as abhorrent as those prosecuted through genocide or crimes against humanity, the fact remains that piracy is at its core a financial crime. This difference has the practical effect that different levels of perpetrators are likely to be tried for piracy matters compared to other international criminal law prosecutions. For example, where the International Criminal Tribunal for Rwanda set out to prosecute those at the very top of the Rwandan government and army, the likelihood is that those piracy suspects captured at sea are not the very top of the piracy trade, but rather the “tools” used to carry it out- the very people international tribunals have not sought to prosecute.

Above are just some of the issues which will likely emerge once the ACtJHR is operational and begins to consider piracy cases. What is not in dispute is that piracy in the modern age has been a significant problem for Africa. It therefore seems logical that the ACtJHR will be the first international court to have jurisdiction over piracy cases. What remains to be seen is whether the Court will succeed in providing an African solution to this African problem.

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About Milena Sterio
Milena Sterio is a law professor at the Cleveland-Marshall College of Law, where she teaches and specializes in International Law, International Criminal Law, Maritime Piracy, and Human Rights.

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