SCOTUS Denies Hearing of Piracy Cases

Lady Justice in front of the U.S. Supreme Court

We have been following a number of piracy cases in the U.S. two of which had resulted in convictions and looked like they might be heading to the U.S. Supreme Court (SCOTUS). The issue in U.S. v. Said and U.S. v. Dire was whether piracy, as defined by the law of nations, incorporates modern developments in international law. See also here. By declining to hear the cases, SCOTUS takes no view on the debate. However, in several lower court decisions, judges have relied on the pronouncement in Sosa v. Alvarez-Machain that claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” This conclusion runs counter to a judicial philosophy of strictly construing the plain language of a statute based on the understanding of the congressional authors at the time the act came into law. Because piracy was a novel issue unaddressed by SCOTUS in several hundred years, and because the legal issue on appeal invited strong ideological views, I had thought the case for hearing Said and Dire was fairly strong. Nonetheless, one weakness in the argument was that there was no split of authority between the federal courts of appeal (one basis for SCOTUS granting discretionary review). Both cases originated in the 4th circuit and reached the same conclusion on this point of law.

The same is not necessarily true in a second set of cases in U.S. courts involving pirate negotiators. In the case of U.S. v. Shibin, in the 4th Circuit, the defendant was convicted for aiding and abetting piracy although he was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters. In U.S. v. Ali, the federal court in the DC Circuit reached the opposite result and dismissed the aiding and abetting charges against an alleged pirate negotiator because it held that piracy must be committed on the high seas. These cases raise the issue of whether piracy can be perpetrated on land or within a state’s territorial waters, despite UNCLOS defining piracy as an offense perpetrated on the high seas. U.S. v. Ali is the subject of a prosecution interlocutory appeal on this issue, and Shibin’s conviction is on appeal to the 4th Circuit. Therefore SCOTUS might have another opportunity to get involved in the piracy debate and to make a contribution to the status of customary international law on the subject – although it might take another year for these cases to be ripe for review. On the other hand, it appears both circuits might reach the same conclusion and find that aiding and abetting piracy can be perpetrated on land – a position I have argued in a forthcoming law review article in the Florida Journal of International Law.

 

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Italian Marines to be tried in Special Court in Delhi for Enrica Lexie Incident

The two Italian Marines to be put on trial before a special court in Delhi

India’s Supreme Court has rejected a bid by the Italian government to transfer to Italy the case of two of its marines charged with the murder of two Indian fishermen. The judges said that the marines would be tried in a special court in the capital, Delhi. As previously discussed here and here, in the Enrica Lexie incident Indian fishermen were shot and killed by an Italian Vessel Protection Detachment on board to protect against pirates operating in the Indian Ocean and Gulf of Aden. Jurisdiction over the incident was contested by Italy and India leading to litigation before the Supreme Court of India which has now pronounced its view. A friend of the blog has provided us the Judgement of the Supreme Court.  Here are the crucial paragraphs:

97. In my view, since India is a signatory, she is obligated to respect the provisions of UNCLOS 1982, and to apply the same if there is no conflict with the domestic law. In this context, both the countries may have to subject themselves to the provisions of Article 94 of the Convention which deals with the duties of the Flag State and, in particular, sub-Article (7) which provides that each State shall cause an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State. It is also stipulated that the Flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

98. The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation.

99. This brings me to the question of applicability of the provisions of the Indian Penal Code to the case in hand, in view of Sections 2 and 4 thereof. Of course, the applicability of Section 4 is no longer in question in this case on account of the concession made on behalf of the State of Kerala in the writ proceedings before the Kerala High Court. However, Section 2 of the Indian Penal Code as extracted hereinbefore provides otherwise. Undoubtedly, the incident took place within the Contiguous Zone over which, both under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty. However, as decided by this Court in the Aban Loyd Chiles Offshore Ltd. Case (supra), referred to by Mr. Salve, Sub-section (4) of Section 7 only provides for the Union of India to have sovereign rights limited to exploration, exploitation, conservation and management of the natural resources, both living and non-living, as well as for producing energy from tides, winds and currents, which cannot be equated with rights of sovereignty over the said areas, in the Exclusive Economic Zone. It also provides for the Union of India to exercise other ancillary rights which only clothes the Union of India with sovereign rights and not rights of sovereignty in the Exclusive Economic Zone. The said position is reinforced under Sections 6 and 7 of the Maritime Zones Act, 1976, which also provides that India’s sovereignty extends over its Territorial Waters while, the position is different in respect of the Exclusive Economic Zone. I am unable to accept Mr. Banerji’s submissions to the contrary to the effect that Article 59 of the Convention permits States to assert rights or jurisdiction beyond those specifically provided in the Convention.

100. What, therefore, transpires from the aforesaid discussion is that while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS 1982. I agree with Mr. Salve that the “Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations” has to be conducted only at the level of the Federal or Central Government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.

101. While, therefore, holding that the State of Kerala has no jurisdiction to investigate into the incident, I am also of the view that till such time as it is proved that the provisions of Article 100 of the UNCLOS 1982 apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the Petitioner Nos.2 and 3 in the Writ Petition. The Union of India is, therefore, directed, in consultation with the Chief Justice of India, to set up a Special Court to try this case and to dispose of the same in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and most importantly, the provisions of UNCLOS 1982, where there is no conflict between the domestic law and UNCLOS 1982. The pending proceedings before the Chief Judicial Magistrate, Kollam, shall stand transferred to the Special Court to be constituted in terms of this judgment and it is expected that the same shall be disposed of expeditiously. This will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon adducing evidence in support thereof, whereupon the question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered. If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, then these directions will continue to hold good.

The Judgement is something of a compromise as it takes jurisdiction away from the state of Kerala where local press were decidedly one-sided in their evaluations of the parties at fault. The trial will take place in Delhi where the marines might have a better chance of receiving a fair trial. However, the judgement rejects Italy’s claim to exclusive criminal jurisdiction in this case. The Supreme Court’s reading of the Lotus case in view of UNCLOS is crucial and merits further analysis. We hope to provide further analysis soon.

Piracy off the Coast of California?

Coast Guard Chief Petty Officer Terrell Horne, a Boatswain Mate onboard the Coast Guard Cutter Halibut, died early in the morning of Dec. 2, 2012 from injuries sustained during law enforcement operations near Santa Cruz Island, Calif. Source: US Coast Guard

Last week a member of the U.S. Coast Guard died when a vessel smuggling narcotics from Mexico hit the coast guard boat containing a boarding team, including the victim. The two Mexican nationals operating the smuggling vessel made their initial appearance in U.S. court last week. It appears that the collision occurred within U.S. territorial waters as it was “near Santa Cruz Island, off the coast of Santa Barbara.” The two could be charged with murder of a U.S. government officer 18 USC 1114 for which the death penalty is an available sentence. However, it has been reported that “drug and human trafficking off the [California] coast has grown into an elaborate, highly lucrative and increasingly dangerous operation, as smugglers venture farther out to sea and farther north along the coast in search of safe places to deliver their cargo undetected.” If such a collision were to occur on the High Seas, the Accused could also be charged with piracy for it would constitute an illegal act of violence for private ends between two vessels (UNCLOS Art. 101). It might also create conflicting jurisdictional claims between Mexico and the U.S. if the U.S. were intent on imposing the death penalty. Mexico could claim jurisdiction over the crime based on the perpetrators’ nationality whereas the U.S. could claim jurisdiction based on the victims’ nationality. For a similar jurisdictional conflict see the case of the Enrica Lexie. Conflicts over the imposition of the death penalty against Mexican nationals in the U.S. have been a point of contention between the two states, culminating in the case of Medellin v. Texas at the International Court of Justice which continues to reverberate in U.S. courts. That said, the growth of maritime drug smuggling off the coast of California, perhaps on the High Seas, could have worrying implications for interstate relations between the U.S. and Mexico.

Drones in Seychelles on Hold

Setbacks to US Drone Program in Seychelles

Setbacks to US Drone Program in Seychelles

Last year, it was reported that the United States was sending drones to the Seychelles for use against militants and pirates.  It appears the drone program in the Seychelles has suffered serious setbacks including crash landings attributed to pilot error.  As a result, drones have been grounded in the Seychelles since April 2012. Apparently, drones have not been gathering information about pirates for much of 2012 – at least not those drones originating from the Seychelles.  Check out the video from the Washington Post by clicking the photo.

Private Security Liability under the Alien Tort Statute

Hasan Abdullah Quanas, a Yemeni fisherman, stands at the prow of the fishing boat on which his nephew Mohammed Ali Quanas was killed by shots fired from the Nordic Fighter tanker in the Red Sea on Aug. 3, 2011. Photo: Alan Katz

There has been a long discussion concerning if and how to regulate private security contractors hired to protect merchant vessels against pirates. See e.g. here and here. Only last week, the Security Council emphasized in the Presidential Statement issued after its debate on piracy that it “encourage[d] flag States and port States to further consider the development of safety and security measures onboard vessels, including regulations for the deployment of PCASP [privately contracted armed security personnel] on board ships through a consultative process, including through International Maritime Organization and International Standards Organization.”

As noted by Christine, two incidents in particular have raised the specter that innocent fishermen have been killed by PMSCs (Private Military and Private Security Companies)(the term we have used on this site). One incident involved a vessel protection detachment (VPD) of Italian special forces who killed two Indian fishermen believing them to be pirates. See here and here. Another incident involved the death of a Yemeni fisherman allegedly at the hands of a Russian VPD. As to the latter incident, it was reported:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.

“He was killed while he was holding some dough for dinner,” says Quanas’s uncle, Hasan Abdullah Quanas, who was in the prow and saw his nephew fall. Hasan abandoned fishing after the shooting for fear that he too could become collateral damage in the increasingly violent fight to tame piracy on the high seas.

These are some of the few incidents that have been reported, but there are very likely more incidents where PMSCs or VPDs have mistakenly fired upon, injured, or killed innocents on the high seas. Presently, a ship’s flag state regulates the conduct of PMSCs and VPDs aboard ships on the high seas. There is no universally binding code of conduct, although the IMB has published interim guidelines. Nonetheless, PMSCs are potentially liable for acts of piracy for the killing of fishermen based on universal jurisdiction in the United States.

As many readers know, the Alien Tort Statute in the United States authorizes civil suit in U.S. federal courts against individuals (and perhaps corporations) who have violated the law of nations. The Alien Tort Statute has generally been used to pursue perpetrators of mass human rights violations. Although the drafting history of the statute is scarce and has made it very difficult to ascertain the original intent of Congress in adopting the statute, many are of the view that the Alien Tort Statute was initially intended to cover, at least, acts of piracy. Professor Alfred Rubin, in his treaty on the law of piracy, notes that the original intent was to provide a basis for civil suit against pirates:

[In 1792, US Attorney General Randolph envisaged the Alien Tort Statute to be a] supplement to criminal process to permit the victim of a wrongful taking aboard to recover his property when the tort law of the place of taking and the tort law of the United States coincided and the taker or the property was in the territorial jurisdiction of American courts. It would have had obvious applicability to aliens seeking to recover their goods from “pirates” as well as from those taking their property aboard, but seems to have rested on Blackstone’s naturalist conception of the ‘law of nations’.

In other words, the original intent of the Alien Tort Statute was to permit civil suit against pirates in US federal court. The law of nations defines piracy as any illegal acts of violence committed for private ends by the crew or the passengers of a private ship and directed against another ship (UNCLOS Art. 101(1)(a)). An act of violence by a PMSC against fishermen on the high seas would satisfy this definition. Therefore, PMSC’s are themselves liable for acts of piracy if they mistakenly injure or kill fishermen. Further, the Alien Tort Statute provides jurisdiction in US Federal Court to seek compensation for such illegal acts.

Acts of violence by a VPD might not fall within this definition since VPDs are state-sponsored and therefore precluded by the “private ends” requirement of the piracy definition. However, PMSCs are not state-sponsored. Another question is whether the law of self-defence may authorize some acts of violence against ships believed to be carrying pirates. On this point, it has been suggested that the permissibility of self-defence against possible pirates is determined by reference to the subjective intent of the private security detail. One proposed self-defence guideline provides, “A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.” (emphasis added).

I am sceptical that this formulation of self-defence is comprehensive and inclusive of general principles of law as understood by the major legal systems of the world. See here. It is more likely an expression of black letter law from the British common law system. In any event, under most systems of law, self-defence must be proportionate to the danger posed. The question remains whether the objective fact that an approaching boat is composed of unarmed fishermen would preclude self-defence as a justification for such conduct.

Another possible obstacle is a jurisdictional one. Currently before the US Supreme Court is the question whether there must be some nexus with the United States, in addition to the requirements of universal jurisdiction, to permit suits based on the Alien Tort Statute. This might be satisfied if an act of violence by a PMSC were committed against an American ship, seafarer, or perhaps even cargo while on the high seas or if they were committed by an American PMSC. If the US Supreme Court were to require such a nexus, it could preclude other civil suits with no connection to US interests.

In any event, PMSCs should be cognizant of the fact that they could be subject to civil and was as criminal penalties for causing damage to or killing individuals who are not in fact pirates on the high seas.

Piracy Takes Center Stage at UN Security Council

Indian ambassador to the UN Hardeep Singh Puri, who assumed the month-long presidency of the UN Security Council, interacts with the media after convening an emergency meeting on Syria, in New York. Source: PTI Photo

As noted by Christine, India has assumed the month-long presidency of the UN Security Council and has brought piracy to the center of the debate. As the Security Council Report points out this is the first time that piracy has been addressed as a thematic issue as opposed to in a state or regional discussion.

Key Issues

A key issue for the Council is how to strengthen the international response to piracy as a global threat to international peace and security.

Another issue is what lessons can be learned from the experiences gained so far at the regional level that may be applied universally.  These experiences cover areas such as effective coordination and cooperation mechanisms, preventive measures taken by the shipping industry (which include the use of privately contracted armed security personnel on ships), strengthening legal frameworks to ensure accountability for acts of piracy, capacity-building for states in the affected regions and addressing the root causes of piracy. A related issue is the difference across regions in the way pirates operate and the capacity of regional states to take effective action.

There also seems to be growing recognition of the human cost of piracy as an issue deserving more attention, including how to ensure assistance to hostages and their families.

Options

The main option for the Council is to adopt a presidential statement that would call for strengthened international action against piracy based on some of the experiences already gained and mechanisms in place. Such a statement could also ask the Secretary-General for a report on piracy at the global level and recommendations for further action.

The framework adopted by the Security Council could form the basis for the further solidification of customary international law. While the Security Council has issued numerous resolutions regarding piracy off the coast of Somalia, it has been careful to disclaim any opinio juris in creating precedents that might contradict UNCLOS. A further strengthening of the UNCLOS framework, in addition to an elucidation of areas of ambiguity in the treaty would be welcome in light of continued acts of piracy off the coast of Somalia, in the Gulf of Guinea, in the Malacca Straight, and, potentially, in new areas where conditions are ripe for such criminality.

Long road to justice – The German piracy trial

 

 

 

This post comes from Tim René Salomon. He is a Rechtsreferendar (articled clerk) in Hamburg and currently assigned to the Landgericht Hamburg. The opinions expressed in this article are solely his own.

After 105 days of trial and a duration of almost 2 years, Judge Dr. Steinmetz announced the verdict and penalties on Friday, the 19th of October 2012 for the Third Grand Penal Chamber of the Landgericht Hamburg. The ten accused were found guilty of two crimes, attack on maritime traffic (§ 316c German Criminal Code – StGB) and abduction for the purpose of blackmail (§ 239a StGB). The adults were sentenced to six to seven years, while the juveniles and accused which were under 21 years of age at the time of perpetration were handed a two year penalty and will walk free after having served their time already during the extended period of pre-trial detention. It may be of even greater surprise, although the author finds this aspect to be one of the great success stories of the trial, that the three young accused behaved exemplary in pre-trial detention during which they went to school and have, after their early release, continued going to school with one of the accused even delivering his last word in the proceeding partially in German.

In the four hours of Steinmetz‘s announcement, he stressed numerous aspects of the trial, the acts committed and the political backgrounds and took the time to deliver his personal perception of what he termed an “absolutely exceptional proceeding”. This exceptionality is clear to observers everywhere. It was Germany’s first piracy trial in about 400 years, it was exceptional in the sense that so far no other trials in Germany are on the horizon on the subject matter, but it was also exceptional or better put notorious for its duration. The fact that it took two years is indeed remarkable, when looking at the rather simple case at hand:

The MV Taipan was headed from Haifa, Israel to Mombasa, Kenya and avoided the vicinity of Somalia in order to be relatively safe from pirate attacks. 500 nm from the Somali coast in the middle of the Indian Ocean on the April, 5 2010 they sighted the dhow Hud Hud, a kidnapped vessel, which was first deemed harmless and the threat it posed became apparent only when it sent two skiffs towards the container vessel Taipan. The crew of the Taipan, which now travelled full speed, was sent to the safe room and the master and two crew-members remained on the bridge. When the skiffs closed in and machine gun fire hit the Taipan, the master ordered everyone in the ship’s citadel. The pirates on the skiffs tried to climb on board, observed by a German maritime surveillance aircraft, and eventually succeeded. The individual role of each accused could not be ascertained with the necessary certainty, but it is documented that the pirates changed the vessel’s course to Somalia and destroyed the GPS antenna to complicate the tracking of the Taipan. After the Taipan’s master Eggers noticed this, he blacked out the vessel from the citadel to stop its travel, knowing that the Netherlands Navy frigate HNLMS Tromp was near, although the attack took place outside of the area under the EU ATALANTA mandate. During the following four hours the pirates unsuccessfully searched for the safe room until soldiers from the Netherlands Navy boarded the Taipan and apprehended ten suspects after a brief previous exchange of fire between the Tromp and the pirates. The suspects were then taken to Djibouti, flown to the Netherlands and were eventually extradited to Germany, where the prosecution was conducted.

What seems to be a rather clear cut case ended up to be a very challenging and long-lasting endeavor for the Hamburg court, which has led the trial with meticulous care. The applicability of German criminal law was more or less uncomplicated, since it derives from the German flag of the Taipan (§ 4 StGB), the passive personality principle as two victims, the master Eggers and merchant seaman Preuß, were German nationals (§ 7 (2) StGB) and the universality principle, which German law applies to attacks on maritime traffic (§ 6 Nr. 3 StGB). The court could have mentioned § 3 StGB, the territoriality principle, as the blackmail was directed against a German-based company, which means that the result of the crime arguably should have occurred in Germany according to the intention of the offenders (§ 9 StGB). Also the Hamburg court is locally competent because of the Taipan‘s home port, Hamburg (§ 10 German Criminal Procedure Code – StPO), with the Grand Penal Chamber of the Landgericht being the proper instance because of the expected penalty above four years imprisonment.

At the start of the proceeding every accused was granted two lawyers to prepare and conduct their defense. The issues started early in the trial. Seeing that people under the age of fourteen cannot be held criminally liable in Germany, the court first had to conduct medical exams to verify the claims of some of the accused that they were below this threshold or were at least under 18 or 21 respectively, rendering the juvenile code applicable. Two expert witnesses were heard until this issue was resolved with the necessary certainty. Moreover, during the trial, witnesses were heard e.g. on the situation in Somalia and the causes of piracy, the responsible captain of the Netherlands Navy testified and the master of the Taipan as well as his second officer also gave evidence. Some of the accused chose to make statements themselves during various stages of the trial, some admitting their participation in the act, while incriminating others, some claiming that they were forced to partake in the attack or at least deceived into participation. While the court was unable to bring to the light how exactly the pirate group conducted the attack, the declarations by the accused led to some insights into the act, although any allegations of force or deceit were held to have been unconvincing, since sufficient evidence pointed to the fact that all of the accused participated voluntarily. Consequently, the court saw an attack on maritime traffic and the abduction for purposes of blackmail as given in this case. The fact that the victims were in the safe room did not prevent the abduction from being successful in a legal sense, since the victims were in fact under the control of the pirates, who controlled the entire vessel.

This led the court to a possible penalty of 5-15 years imprisonment for the adults. In weighing the facts and background of the case to find a just penalty, the court stressed especially the danger of the act, the heavy weaponry used, the damage dealt to the vessel and the high criminal energy, but also the situation in Somalia under which the accused grew up, the fact that the accused were only small fish in a criminal network, the long pre-trial detention periods, the fact that there were no complaints against the accused during this detention and the short duration of the abduction. In doing so, it arrived at substantially shorter penalties than the state attorneys requested in this case.

In its concluding remarks, the court stressed that the trial was surely not able to prevent piracy or deter future perpetrators, but it also underlined that the trial was necessary with regard to the individual perpetrators and in order to communicate to the victims that the crime committed against them was punished. The duration of the trial was certainly longer than necessary. It was criticized by the court that the defense attorneys delayed the trial substantially, which is probably true. Although they merely used the means given to them by German criminal procedural law, some of their requests seemed far-fetched, e.g. the proposal for the court to travel to Somalia to see what life is like there, the proposition, the court should pay bribes in order to obtain witness statements from Somalia, a challenge against the court for bias, because the proceedings started one hour later than originally announced one day, or even the request to lock the captain of the Netherlands Navy, the person responsible for freeing the Taipan, in coercive detention, because he did not give evidence with regard to classified matters.

What remains for the international community? Surely, piracy trials need not last two years to be fair, but this trial shows that granting an effective defense also means trials tend to last longer. Against this backdrop, the ongoing trials in Kenya and the Seychelles, which last only much shorter and which, in case of the Seychelles, have featured one defense attorney for up to 14 accused show what happens when no effective defense is guaranteed. A similarly dramatic contrast is to be found in the way the issue of age was handled in the German trial versus how it is handled in e.g. the Seychelles. While the court in Hamburg went to great lengths to estimate as precise as possible the age of the accused, in the Seychelles, age has up to now not even been a criterion which lead the courts to distinguish between adults and juveniles with regard to the applicable penalties. Expecting the same diligence, which was used in the German proceeding everywhere in the world, would probably be a rule-of-law-overkill, but to some extent the German trial has thrown into sharp relief the conduct of trials elsewhere in the world.