Lockerbie in Arusha – Significant Challenges Remain

January 25, 2011 Leave a comment

UPDATE: Lang actually recommended the creation of three courts: one in Puntland, one in Somaliland, and one in Arusha (to be moved to Mogadishu when conditions warrant). The Security Council members are generally in support of his recommendations, but you can discern some variations in their preferences by parsing the language of their statements. A number of questions come immediately to mind: (1) how will an arresting force determine to which of the three courts to send an arrested person? (2) Have Puntland and Somaliland delimited territorial waters where they would have exclusive jurisdiction? (3) Insofar as any nation may prosecute piracy on the High Seas, will the process of determining the proper venue be ad hoc or based upon formalized negotiations and agreements?

Jack Lang, UN Special Adviser on Piracy, has issued his report to the Secretary General.  News agencies are saying that he has recommended the creation of a Somali court sitting in another regional state (akin to the Lockerbie court).  There is some indication that Arusha, Tanzania is being considered as a seat for the Somali court due to the infrastructure already in place at the ICTR.  A number of serious challenges would need to be overcome to create such a court.

First, Somalia continues to be described as a monolithic entity, thereby necessitating a bilateral treaty between the regional State in which the court would be situated and Somali.  However, the United States policy has recently changed with regard to the heretofore unrecognized regions of Somaliland and Puntland. Assistant Secretary of State Johnnie Carson said at a briefing in September 2010:

We hope to be able to have more American diplomats and aid workers going into those countries [Somaliland and Puntland] on an ad hoc basis to meet with government officials to see how we can help them improve their capacity to provide services to their people, seeing whether there are development assistance projects that we can work with them on […] We think that both of these parts of Somalia have been zones of relative political and civil stability, and we think they will, in fact, be a bulwark against extremism and radicalism that might emerge from the South.

Carson said the United States will follow the African Union position and recognize only a single Somali state. However, with Somaliland and Puntland apparently offering to house convicted pirates within their territories, and other States increasingly recognizing their practical autonomy, it begs the question of whether or not an agreement to create a Somali court would require the assent of the Somaliland and Puntland governments. It would seem that a prerequisite to these regions signing an international treaty would be recognition of their Statehood.

The 26 July 2010 Report to the Security Council set forth several additional challenges with regard to the option put forward by Lang.  These include:(1) the considerable assistance that the UN will need to extend to the court; (2) the amount of time necessary for the court to commence functioning could be significant; and (3) the inadequacy of Somalia’s piracy laws and the capacity of Somalia’s judicial system.  In particular, the report noted:

Although there is some judicial capacity in Somalia and among the Somali diaspora, the challenge of establishing a Somali court meeting international standards in a third State would be considerable at present. Further, any advantages that such a court may enjoy would be outweighed if it were to draw limited judicial resources from Somalia’s courts.

One final point that should not be lost amidst the excitement is the mundane, but essential task of determining where Somalis who are eventually convicted of piracy, in the yet to be created court, will serve their sentences. Apparently, Lang has recommended the construction of one prison each in Somaliland and Puntland.  To which, Bronwyn Bruton, an author of reports on Somalia for the New York-based Council on Foreign Relations, reportedly said:

The idea that they’re [pirates] going to be scared off by prisons that meet UN human rights standards is wholly unrealistic. In these jails, they will have food, protection from violence and probably some basic literacy training. For these guys, it’s going to sound like a holiday camp.

Indeed the prospect of serving time in these prisons may not create a serious deterrent to piracy.  However, during the 8 or 20 years in which a pirate might serve a sentence, he will not be capable of committing further acts of piracy.  Furthermore, rehabilitation is a real possibility if stability can be maintained, jobs created, and inmates trained.  Any sustainable solution should take into account the possibilities for a newly released pirate.  If it does not, there is nothing to stop a jobless, ex-convict from continuing to seek bounty on the high seas.

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Duress as a Defence to Piracy

January 24, 2011 Leave a comment

I am fascinated by the parallels between past eras of piracy and the current resurgence in Somalia. In a law review article last year, Peter Leeson notes that during the 18th century, Caribbean pirates cleverly avoided conviction by the British based on a defence of “impressment.” As Leeson puts it:

Voluntary complicity with a pirate crew was important to establishing guilt. Pirates exploited this loophole by pretending to conscript seamen who joined their ranks voluntarily. Since pirates did genuinely compel some seamen to join their companies, court officials considered the impressment defense plausible.

In order to buttress the conscription defense, pirates needed some kind of corroboration.

conscripts, real and pretend, asked their captured fellow sailors, who the pirates released, to advertise their impressment in popular London or New England newspapers. If authorities ever captured the pirates the “conscripts” sailed with, “conscripts” could use the newspaper ads verifying their forced status as evidence in their defense.

An “impressment” or “conscription” defense is akin to a modern defence of duress, providing a justification or excuse because of the involuntary nature of the conduct. In the U.S., the defence must be proven by the defendant by a preponderance of the evidence. Therefore, the defendant must put forward some affirmative evidence that he was forced to perform the criminal act.

Last November, in “the first piracy case to be tried in a U.S. court since the Civil War,” the defendants initially asserted that they were merely fishermen.  In rebuttal, the prosecutor said, the defense amounted to: “We didn’t do it, but if you think we did it, someone made us do it.”

There is undoubtedly some truth to the claim that they were “forced” into piracy. The coastline of Somalia is 3,898 kilometres long. About 55 per cent of its population lives along this coastline many of whom depended upon fishing for their livelihood. In this regard, a 2006 UN Environment Program report noted:

a large number of foreign vessels illegally fishing in Somali waters and serious pollution caused by vessels discharging toxic waste. Heavily armed foreign boats have often tried to exploit the breakdown of law and order in Somalia since the overthrow of President Mohammed Siad Barre in 1991 by fishing in the rich Somali waters, thus depriving coastal communities of resources.

Other support for this appears here. However, others argue that this is just a cheap excuse for those who voluntarily chose piracy. Regardless of its merits, suspected Somali pirates have already taken a page from another era.  Now, where to publish that ad?

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Piracy Report Tomorrow

January 23, 2011 Leave a comment

Jack Lang, the Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, is due to issue his report tomorrow.  Lang was appointed by the Secretary General last August to:

identify any additional steps that can be taken to assist States in the region, as well as other States, to prosecute and imprison persons who engage in piracy; and explore the willingness of States in the region to serve as potential host for any of the options for potential new judicial mechanisms set out in the report of the Secretary-General.

The 26 July 2010 Secretary General’s Report set out 7 options to prosecute and imprison suspected acts of piracy off the coast of Somalia, including creating a special domestic chambers with international components, a regional tribunal or an international tribunal. [For further discussion, see the report: Suppressing Maritime Piracy -Exploring the Options in International Law.]

One of the options discussed by the Report, and which has been favored as a practical matter until present, has been to provide financial support to States within the region to prosecute suspected pirates in their national courts invoking universal jurisdiction. In this regard, the UN Office for Drugs and Crime and other donors have provided $5 million to refurbish the Shimo La Tewa court and prison in Mombasa where the suspects were being tried by Kenyan prosecutors.  The Seychelles has also started prosecuting pirates in its national courts with some assistance from the UN. Despite these efforts, Jack Lang, says that 9 out of every 10 pirates captured by marines are freed. Furthermore, in November 2010, the Kenyan High Court held that the Kenyan penal code does not give Kenyan courts jurisdiction over piracy on international waters, rendering in doubt any convictions obtained to date and casting a shadow on further efforts to prosecute suspected pirates in Kenyan courts.

The question now is what measures Jack Lang will propose. He hopes for a Security Council Resolution within three to four weeks.

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