Manning up – Guns on Board

February 7, 2011 1 Comment

Navy commando is seen detaining a speedboat with suspected Somali pirates

Private security firms have found a new niche. In the absence of naval forces sufficient to protect all of the commercial ships traveling through the Indian Ocean and the Gulf of Aden, ship owners must decide whether to take the risk of hiring a private firm to protect their ships, with lethal force when necessary. Here and here are a few examples. One proposed venture would offer the following:

Vessels transiting Gulf of Aden waters will get both armed patrol boat escort and full anti-piracy cover for an average of US$21,500 per voyage, dependent on speed. This so-called Convoy Escort Program scheme would be classed as a “flag naval company” under the maritime and criminal law of a still-to-be-decided flag state.

Many ship owners have been reticent to hire private security companies to protect their ships because of: (1) the potential for escalation of violence; (2) questions regarding the legality of the use of force to prevent pirate attacks and (3) potential liability for injuries to seamen.

The need for adequate self-defence measures at sea leads to some surprising outcomes when faced with national regulation.  The criminal and regulatory regimes of a given State apply to a ship in a State’s territorial waters (usually 12 miles from shore). But when a ship is on the High Seas, the flag State where the ship is registered dictates what law applies. Considering the number of ports where a ship may dock, this makes for a complicated patch-work of laws. As a result, in order to avoid running afoul of local gun control laws, some maritime security companies are tossing weapons overboard prior to reaching port. There is a need to establish some kind of uniformity:

The Swiss government led efforts last year to create the International Code of Conduct for Private Security Service Providers, a set of principles for the growing global industry. But it is up to the countries that licence ships to oversee security teams.

Countries have vastly different laws for the use of force and for carrying weapons on board. The US allows for pre-emptive attacks on pirates, while Sweden will not allow any guns except for a single shotgun on any merchant ship it regulates.

For the time being, the International Maritime Organization Best Management Practices only provide, “The use of additional private security guards is at the discretion of the company, but the use of armed guards is not recommended.”

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Pirates in Prada and Proving it

February 3, 2011 Leave a comment

The Economist has a comprehensive report touching on many of the practical issues created by the rise of Piracy in the Indian Ocean. In the conclusion to the report, the report explains some of the reasons why there have not been more comprehensive efforts to address the problem.

Unfortunately, too many people like things as they are. Pirates gain wealth, excitement and glamour. Marine insurers, which last month extended the sea area deemed to be at threat from Somali pirates, are making good money from the business that piracy generates. At least for the time being, shipowners are willing to take the calculated risk of sailing in pirate-infested waters; so long as everyone bears his part of the extra $600m a year in premiums, they can pass the bill on to their customers. Patrolling foreign navies can demonstrate their usefulness to their sometimes sceptical political masters, while countries such as China and Russia are strengthening their operational experience.

Smithsonian Artifact: Slave Shackles

On another issue, the report acknowledged the difficulty in compiling evidence to prove acts of piracy. Professor Eugene Kontorovich has advocated for “Equipment Articles,” taking a cue from the slave era in which the British enacted laws creating a presumption that ships were engaged in slavery if they were in possession of certain equipment such as shackles. In the context of piracy, Professor Kontorovich states:

Equipment Articles could create a presumption of piracy for people found on a vessel less than a certain length, with engines of a certain horsepower, equipped with grappling hooks, boarding ladders, armed with RPGs and/or heavy machine guns, and/or far out at sea with obviously inadequate stores of food and water (which could suggest the skiff operates from a mothership).

Boarding ladders, such as the one seen in the header to this blog, and grappling hooks permit pirates to quickly gain access to a ship. But, the practical problem with this suggestion is set forth in the Economist report: “If they are caught in the middle of an attack, the pirates have no hesitation throwing their weapons—typically AK47 machine guns and rocket-propelled-grenade launchers—and their scaling ladders overboard to destroy evidence of their intentions.” All that would be left is a skiff with a large engine and, if the pirates are clever, a fishing net. The Equipment Articles would be of questionable utility in such circumstances.

But there is also a due process problem with such laws.  International criminal law has adopted the beyond a reasonable doubt standard of proof. Equipment Articles appear to lower the burden of proof such that the prosecution of a pirate would only require prima facie evidence that a suspect intended to commit piracy. In other words, Equipment Articles put the onus on the suspect to disprove that they intended to engage in piracy. Alternatively, Professor Kontorovich notes that during the slavery era, the United States never enacted Equipment Articles, but instead considered the possession of equipment as circumstantial evidence of slavery. This latter use is more consonant with contemporary International Criminal Law practice. Short of catching Pirates as they attempt to board a ship or after they have already taken hostages, compiling sufficient evidence to prove piracy will continue to pose a problem.

UPDATE: The Danish Navy was forced to release six suspected pirates for lack of proof to sustain a conviction. “The pirates “had thrown all their equipment used for piracy into the sea before the boat crew members of the Esbern Snare [the Danish Naval ship] had boarded. “

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Prosecution of Pirates under CAT

February 2, 2011 Leave a comment

A South Korean Navy-issued photo shows SEAL troops storming the Samho Jewelry hijacked by Somali pirates in the Indian Ocean

UPDATE: The question has been raised in another forum how acts of piratical torture might be imputed to a State authority (as CAT is only applicable where such authorities participate in or acquiesce to such conduct). There are at least two cases on point. In 1999, the Committee Against Torture held that factions within Somalia “exercise certain prerogatives that are comparable to those normally exercised by legitimate governments,” and therefore, “the members of those factions can fall, for the purposes of the application of the Convention, within the phrase “public officials or other persons acting in an official capacity” contained in article 1 [of CAT]”. See Zelmi v. Australia. Similarly, a UK criminal court has held that an Afghan warlord could be considered a de facto public official for purposes of CAT even though a central government existed in Afghanistan at the time. See R v. Zardad. The crucial issues in that inquiry were: (1) the degree of organization of the entity; (2) the level of control exercised over a region; and (3) whether the entity exercised the types of functions that would normally be exercised by a government.

Since a majority of pirate attacks originate in the unrecognized region of Puntland, the question then becomes whether the officials in Puntland are to be held responsible as de facto public officials, or even, whether the leaders of pirate enterprises might be considered de facto public officials if they exercise effective control over the towns or regions in which they reside. The existence of a Transitional Authority in Mogadishu does not seem to prevent application of CAT since it does not have any influence outside a small part of the capital.

So much for pragmatic businessmen. Escalation is the word of the day. A seamen on a ship captured off of the Seychelles was killed, apparently in retribution for an attempted rescue. In another report, South Korean seamen from the Samho Jewelry described how their Somali pirate captors beat them. A Major General explained that Somali pirates “have begun systematically using hostages as human shields and torturing them.” These reports raise an important legal question: can the Somali pirates who hijacked the Samho Jewelry and who are currently being detained in South Korea, be prosecuted for torture?

There are at least two legal issues here: one jurisdictional and the other substantive. As to the first issue, the UN Convention Against Torture (UNCAT) provides that a State may exercise jurisdiction to prosecute a suspect for torture: (1) where the offence took place in its territorial jurisdiction or onboard a ship registered in that State; (2) where the suspect is a national of that State; or (3) where a victim is a national of that State. See UNCAT Article 5(1). Even where none of these criteria are met, UNCAT also permits any State in which the suspect is present to exercise jurisdiction. This begs the question, how a suspect would find himself in a State which did not, but for his presence, have jurisdiction to try him. Of course, once the suspect is transferred to any State, his presence alone would grant that State jurisdiction to try him on torture charges. But what is the legal basis for arresting and/or extraditing the suspect on torture charges, if none of the four jurisdictional criteria are met prior to the extradition?

In any event, the alleged victim appears to be a South Korean national. Therefore, there is a basis for exercising jurisdiction pursuant to UNCAT. Note: the Samho Jewelry is a Maltese flagged ship, so Malta would also have jurisdiction.

As to the second legal issue, the definition of UNCAT creates a problem in the prosecution of non-state actors. UNCAT was devised to prohibit torture by States and defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person [to obtain information, as punishment, intimidation, or coercion or for any discriminatory reason], when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. (emphasis added).

Therefore, one element of the offence of torture pursuant to UNCAT is the participation of a public official. In a failed State such as Somalia, there are no public officials or other persons acting in any official capacity to consent or acquiesce to the conduct. This element cannot be proven and a prosecution for torture would fail.

The ICTY Appeals Chamber has addressed the peculiarity of the public official requirement in the UNCAT definition of torture. In one case, it held that the definition of torture in UNCAT, which now constitutes customary international law, included a public official element. See Furundzija Appeal Judgement at. para. 111. But in a subsequent case, in dicta, the ICTY Appeals Chamber opined, “[t]he public official requirement is not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the Torture Convention.” See Kunarac Appeal Judgement at paras. 147-48. In other words, where a State is concerned, there is a public official requirement. But where a State is not involved, the crime of torture does not require the involvement of a public official. Considering this was dicta, the issue has not been definitively resolved.

South Korea ratified UNCAT in 1995, but whether or not it could prosecute Somali pirates for torture would depend on the domestic legislation that was passed in conjunction with its ratification. If South Korea’s domestic legislation incorporated the public official requirement in the definition of torture, it might create a barrier to prosecution on this charge.

I should note that Piracy is defined by UNCLOS as “any illegal acts of violence,” and therefore, encompasses within its broad definition, acts of torture. See UNCLOS Article 101(a). However, there may be circumstances where a prosecution for Piracy fails and reliance must be made on other charges. In such a situation, UNCAT would provide a novel basis for prosecution.

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Terrorism as a Defence to Piracy (a definitional problem)

January 30, 2011 Leave a comment

Last August, in U.S. v. Said, a federal court dismissed the most serious count of piracy, ruling mere attempts at piracy were not proscribed by the provision in question. The defendants in that case had approached the USS Ashland 300 miles off the coast of Djibouti, mistaking it for a commercial ship, and one of the defendants had fired a shot. They made no attempt to board the ship and their skiff was shot out of the water. Judge Jackson held that even if the facts were proved, this “attempt” did not amount to piracy. There has been considerable discussion of the memorandum decision here, here and here.  Most of the criticism centers on the Court’s limited reading of 18 U.S.C. 1651 which provides, “[w]hosoever, on the high seas, commits the crime of piracy as defined by the law of nations and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Judge Jackson relied upon the U.S. Supreme Court decision of United States v. Smith, 18 U.S. 153 (1820) which defined piracy as robbery at sea. Many critics have noted the 1958 Convention on the High Seas (ratified by the U.S.) and the UNCLOS (not ratified by the U.S.), define Piracy to be inclusive of “attempt,” and that these Conventions constitute customary international law.  Because 18 U.S.C.1651 adopts the Law of Nation’s definition of piracy, the Court should have given more weight to the definition within these Conventions.

The definitional problem examined in U.S. v. Said is indicative of the challenges faced by States attempting to prosecute Somali pirates. Piracy laws are often antiquated or sometimes do not exist at all.  Even where a State has clear penal legislation proscribing acts of piracy and has adopted the UNCLOS definition, there are other potential hurdles.

The Old U.S. Supreme Court Chambers ca. 1820

UNCLOS article 101 defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends…” (emphasis added).  The plain language of this definition provides that the motive for piracy must be pecuniary.  What if a private ship attacks another in order to achieve a political, as opposed to, a commercial purpose?  Professor Isanga points out several examples of this phenomenon, including attacks in the Niger Delta in Nigeria, and the PLF attack of the M/S Achille Lauro.  Although Somali pirates are generally attacking ships for profit, they have on occasion expressed political motivations.  For example, Somali pirates threatened to kill any South Korean seamen they take hostage in revenge for the killing of eight pirates by South Korean troops.  Furthermore, the Somali parliament failed to adopt piracy legislation with some parliamentarians arguing the pirates were protecting their national waters from overfishing by foreign vessels.  The current definition of piracy under UNCLOS would not encompass crimes with these motivational bases. (See Professor Isanga’s article for a discussion of this and other definitional issues.)

Establishing the jurisdictional parameters of a special tribunal for piracy creates a unique problem in this regard.  If a special tribunal’s jurisdiction is limited to the crime of piracy as defined by UNCLOS, it would not be competent to try attacks at sea committed for political purposes.  In answering charges of piracy, a suspect might claim to have attacked a ship for political, as opposed to pecuniary purposes.  If believed, the manifestly unjust result would be an acquittal on a piracy charge based on a defence of terrorism.  As the special tribunal would not have jurisdiction to try the terrorism charge, the suspect would go free.  Of course, the suspect could be transferred to a court with competence to hear terrorism charges.  However, the efficiency of the special tribunal would be undermined.  Further, in a terrorism trial, the suspect might change tack and claim that he was in fact pursuing commercial interests in the attack.

To avoid this result, the international community could (1) expand the definition of piracy to include terrorism or (2) expand the jurisdiction of piracy tribunals to encompass terrorism charges.  Either alternative would confuse two quite distinct issues.  I recently spoke with an individual who provides private security to commercial ships against Somali pirates.  He claims that piracy is a business (albeit an illegal one).  Few hostages have been killed because it is unprofitable to do so.  He told me that if a pirate ship sees a commercial ship is guarded by armed security, it generally withdraws to look for an easier target.  In contrast, terrorism seeks to use violent means to achieve a political result.  Hostage situations involving terrorists are highly unpredictable and hostages are often killed.  Piracy seeks the most profitable outcome; Terrorism often seeks the most violent outcome.  Do the two crimes deserve similar treatment?  As individual States and the international community pursue piracy prosecutions in earnest, these definitional problems will have to be addressed.

NB: It is possible that a pirate would have dual motives, both pecuniary and political. In such cases, a “terrorism defence” would not negate the criminal intent for piracy.  Cf. Prosecutor v. Ntakirutimana, ICTR-96-10-A, Judgement (AC)(holding in the context of the crime of genocide, “it is immaterial, as a matter of law, whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons.”)

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Kenya: No Jurisdiction to Try Piracy?

January 27, 2011 2 Comments

One important factor which played into Jack Lang’s recommendation to create piracy courts in Puntland, Somaliland and Tanzania, was Kenya’s apparent unwillingness to take the entire problem upon itself.  Until last year, the international community was relying on Kenya to prosecute suspected pirates in Mombasa based upon bilateral agreements. However, in April 2010, Kenyan Foreign Minister Moses Wetangula told reporters, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” Subsequently, the Kenya High Court at Mombasa ruled that “the Local Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Therefore, it did not have jurisdiction to prosecute Piracy on the High Seas (which lies outside of a State’s territorial seas). The specifics of that case provide an interesting case study into a piracy prosecution as well as the perils in amending legislation. In re Mohamud Mohamed Hashi et. al.

The facts of the case provide some colorful background. Mohamud Mohamed Hashi and eight other persons were charged with being armed with three AK 47 Rifles, one pistol, one RPG – 7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle, attacking the MV COURIER vessel and at the time of such act put in fear the lives of the crew men of the said vessel. They were in a skiff like the one pictured in the header of this blog. They were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help of its helicopters and a U.S. helicopter assigned to the USS – Monterey, who “accosted” them in their small boat and arrested them. The Commander and/or officers of the German Naval Vessel, brought the men to Mombasa Kenya and placed them in the custody of the Kenyan police ten days after being captured in the Gulf of Aden.

The legal issue boiled down to two competing statutory provisions addressing the jurisdiction of the Magistrate to consider piracy charges. The first relevant section of the Kenyan Penal Code provided: “5. The jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters.” Whereas, the second section considered by the High Court provided: “69. (1) any person who in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of Piracy.”

The High Court held that these two sections were inconsistent because Section 5 of the Penal Code limited the Court’s jurisdiction to territorial waters and Section 69 expanded the Court’s jurisdiction to include the High Seas.  The High Court concluded that Section 5 was juridically paramount because “It is the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the [Penal] Code is concerned.”  The limiting provision in Section 5 prevailed and, he concluded, “the whole process was therefore null and void, ab initio.  A nullity from the word go.”

What of universal jurisdiction you ask? Doesn’t it permit any State to prosecute any act of Piracy on the High Seas? Universal Jurisdiction permits a State to prosecute a suspect for piracy. However, the the substantive provisions must be supplied by that State’s penal code.  Jose Luis Jesus, the President of the International Tribunal for the Law of the Sea explains:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

In this case, the Kenya High Court appears to have determined that there were no substantive provisions of the Kenyan Penal Code which permitted it to prosecute the suspects. Although one might argue the court conflated the issues of jurisdiction and substantive penal law.

There also appeared to be a serious error in the manner of enacting the new piracy law. The High Court noted that during the prosecution of the defendants in this case, the statute under which they had been charged was repealed.  There was no sunset clause. In other words, when the Parliament repealed the old piracy law, it did not consider what would happen to persons who had already been arrested and charged under the old law.  Once the old law was repealed, defendants could not be convicted of an offence which ceased to exist. In addition, they could not be charged afresh with a violation of the new piracy statute for it would be an ex post facto violation. As nations in the region start the process of updating their piracy laws, this provides a cautionary tale.

The final kicker was the High Court decision to order the defendants released and request that the UNHCR repatriate them back to Somalia. The case in currently on appeal.

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