Kiobel Postscript

Further to my earlier analysis here, there was one other remarkable detail in the U.S. Supreme Court’s recent decision in Kiobel. Although, the opinion in Kiobel was devoted to the application of the Alien Tort Statute, it injected some confusion into a strictly piracy matter. Citing to Blackstone’s definition of piracy the court majority noted, “the offence of piracy by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to a felony there.” This is an outdated definition of piracy inconsistent with the law of nations. The 4th Circuit Court of Appeals has held in two recent opinions that piracy does not require an intent to rob (animus furandi) because the piracy statute 18 USC 1651 incorporates modern developments in “the law of nations” including the customary definition of piracy in Article 101 on the UN Convention on the Law of the Sea. Only a few months ago, the Supreme Court declined to hear these two cases, thereby taking no view on whether the definition of piracy has been updated by modern developments. By now citing to Blackstone’s definition in the Kiobel opinion, however, the court has muddied the waters.

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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.

Broadcast of Mekong Pirate’s Execution May Have Violated Chinese Law

You likely have heard about the execution of Naw Kham, the Mekong Pirate found guilty of killing 13 Chinese in the Golden Triangle. See our prior coverage here. The moments leading up to the execution were televised live in China, although the execution itself was not. Siweiluozi’s Blog points out this violates the spirit if not the letter of Chinese law meant to curb such public executions.

This prohibition was subsequently written into China’s Criminal Procedure Law, and the relevant Supreme People’s Court interpretation on implementation of the death penalty also prohibits “other acts that degrade the personality of criminals” (其他有辱罪犯人格的行为).

Siweiluozi’s Blog also points to a commentary in the Changjiang Daily, the official “organ” of the party in Wuhan, providing the following critique:

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?
It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

Event: The Global Fight against Maritime Piracy – Learning Lessons from Somalia

Global Policy Journal and the Greenwich Maritime Institute are hosting a seminar on contemporary maritime piracy. This is the theme of a special section published in the February 2013 issue of Global Policy, edited by Dr Christian Bueger of Cardiff University.

The seminar will take place on April 17th from 18.00-20.00 in the Howe Lecture Theatre, Queen Anne Court, Greenwich Campus of Greenwich University. The event is free to attend and hosted by the Greenwich Maritime Institute.

The Global Fight against Maritime Piracy – Learning Lessons from Somalia

The fight against maritime piracy remains a crucial global challenge. Current incident numbers indicate that piracy in Eastern African waters is in decline and that the measures taken by the international community and the shipping industry have been effective. Yet, the global fight against piracy is not won. Questions have to be addressed how piracy can be contained and prevented in the long run, beyond the engagement of international naval forces. What are the lessons learned from our experience with Somali piracy? What help can be expected from development aid? How can state building assist maritime security? What role should navies have in ensuring good order at sea? What contributions can the transport industry make to prevent and contain piracy? What types of global and regional governance institutions will be required to prevent further outbreaks of piracy? The authors and panelists will address these and other questions based on their practical and academic expertise.

Confirmed panellists include Professor Christopher Bellamy, (Director of the Greenwich Maritime Institute) Dr Christian Bueger (Cardiff University), Dr Douglas Guilfoyle (University College London), Dr Axel Klein (University of Kent), Dr Anja Shortland (Brunel University), as well as representatives from the maritime security sector.

One Step Closer to a Pirate Amnesty

The Special Court for Sierra Leone held that the amnesty granted to rebel leader Morris Kallon (left) did not deprive the court of jurisdiction to prosecute the Accused.

It is being reported that Somalia’s federal government is offering an amnesty to junior pirates in an attempt to end the hijackings of merchant vessels. The Somali President notes that the amnesty is intended for low-level pirates and not pirate kingpins. “We are not giving them amnesty, the amnesty is for the boys,” he said. Depending on how the amnesty is framed, however, it could run afoul of an international obligation to prosecute universal jurisdiction crimes. As we noted last August when President Sheikh Sharif Sheikh Ahmed first discussed the possibility of a pirate amnesty, the duty to prosecute arises not only from the treaty obligations taken on by states but also the egregiousness of the proscribed conduct. Based on this international norm, there may be a duty to prosecute pirates who have engaged in the practice of torturing hostages or for any other act constituting piracy if sufficiently egregious.

Moreover, a national amnesty granted by Somalia might not be respected by other states who have prosecuted hundreds of Somali pirates over the last several years. The Special Court for Sierra Leone declared an amnesty was “ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.” We previously noted the similar situation in Nigeria, where pirates had accepted an offer of amnesty, but subsequently returned to arms due to the Nigerian government’s failure to provide alternative means of livelihood as it had promised. For Somalia, the lesson is that an amnesty must be accompanied by job training and job creation to be effective. Such a program is potentially very expensive. However, certain international organizations and NGOs may be willing to assist in this regard.

Chinese Drones and Mekong Piracy

Naw Kham (first from right) and members of his gang hear the verdict of the first trial at the Kunming Intermediate People’s Court in Yunnan Province on November 6, 2012. Photo: CFP

There have been some interesting revelations in the case of Naw Kham, the so-called Mekong Pirate who presided over a transnational criminal network in the Golden Triangle of the Mekong river basin. (prior coverage here). Although Naw Kham was convicted of murder, drug trafficking, kidnapping and hijacking across international borders, this does not constitute piracy under UNCLOS as it did not occur on the high seas. Nonetheless, the case provides a fascinating case study in transnational organized crime and has important analogies to piracy on the high seas. Chinese media have focused on the operation to capture Naw Kham, whereas Western media have focused on the fact that China considered using an unmanned drone to kill him.

First the Chinese government-published Global Times provides details on how Naw Kham avoided capture by the Chinese in the Golden Triangle for so long.

During the search, Naw Kham vanished at least three times just as the Chinese police were closing in. [Taskforce leader] Liu said that this was largely because the Chinese police were limited in what they could do overseas. They had to launch appeals before undertaking operations and cooperate with local police.

But Naw Kham had lived in the Golden Triangle for many years and sometimes locals would aid him.

At the end of 2011, Chinese police located Naw Kham at a village by the Mekong River in Boqiao Province in Laos, the hometown of one of Naw Kham’s mistresses.

Chinese and local police encircled the village, but some local officials and villagers obstructed them. “We hit a stalemate. Police were not allowed to enter the village. Even though the local police head was with us, provincial officials were on the other side,” Liu said.

“The deadlock lasted hours, and it was getting dark. According to local customs, the search would have to be suspended after sunset.”

Liu finally found a senior military officer to help break the deadlock; however, police were only able to search six houses in the village and arrest the mistress and some gang members, seizing guns and cash. At night, Naw Kham crossed into Myanmar with the help of locals.

This highlights the fact that transnational criminality, and piracy in particular, will thrive where three conditions coexist: (1) lack of naval/police enforcement; (2) existence of water-borne commerce of significant value; and (3) poverty – motivating foot-soldiers to take extraordinary risks. In this case, the geography and multiple borders provided cross-jurisdictional cover for Naw Kham. Without strong international cooperation, he would not have been captured.

China’s unmanned Yi Long drone on display at the airshow in Zhuhai

In contrast, the New York Times have seized on the mention in the Global Times article that China had considered using an unarmed drone to kill Naw Kham.

Dennis M. Gormley, an expert on unmanned aircraft at the University of Pittsburgh, said of the reported Chinese deliberations, “Separating fact from fiction here is difficult.” But he added, “Given the gruesome nature of the 2011 killings  [for which Naw Kham was convicted] and the Chinese public’s outcry for action, it’s not at all surprising to imagine China employing an armed drone over Myanmar’s territory.”

Mr. Gormley said the decision not to carry out a drone strike might reflect a lack of confidence in untested Chinese craft, control systems or drone pilots. “I think China’s still not ready for prime time using armed drones, but they surely will be with a few more years of determined practice,” he said. “And they surely will have America’s armed drone practice as a convenient cover for legitimating their own practice.”

Similarly, the United States had considered using unmanned drones against Somali pirates in the Indian Ocean, but that program suffered setbacks and U.S. drones were likely only used to surveil pirate-operations off the coast of Somalia. Ultimately, China decided not to use its new assets. Indeed, capturing Naw Kham with no reported casualties and without the need to launch a military strike in Thailand, Laos, or Myanmar was a much cleaner solution.

Language, Capacity Issues Plague Indian Prosecutions of Somali Pirates

Suspects aboard the pirate ship the INS Taba on their way to Mumbai after being arrested by the Indian navy in March 2011. Photograph: Indian navy/EPA

The trial of about 120 Somalis in India is encountering significant obstacles, including difficulty finding qualified Somali-speaking interpreters, procuring deposition evidence from victims, and dealing with the sheer volume of cases on backlog. India’s navy has been very active in helping to patrol the seas off the coast of Somalia. It also recently used its turn as President of the Security Council to put the fight against worldwide piracy at center stage. Perhaps because of its pro-active approach, India has taken into custody a large number of suspected pirates. As we have seen in any number of western countries taking up piracy prosecutions, there are substantial challenges that come with prosecuting Somalis in a transnational setting. This is not to mention the legal obstacles faced by countries attempting to revive centuries old laws to address the resurgence of this type of criminality. As we surveyed in 2011, India’s legal framework for piracy required updating. Video-link testimony and interpretation, in addition to, a more active foreign office might assist the prosecutions in these cases.  Of course, all of these solutions require resources and technological capacity. This is true whether prosecutions move forward in the Netherlands, the U.S. or in India.

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