Long road to justice – The German piracy trial

October 21, 2012 2 Comments

 

 

 

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.

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United States Supreme Court Gets its Chance

October 19, 2012 Leave a comment

Abdi Wali Dire, left, arrives at the the federal courthouse in Norfolk, Va. on Tuesday, Nov. 9, 2010

As I previously mentioned here, the US Supreme Court may soon take up the issue of piracy in US courts. This could have importance not only for the piracy prosecutions taking place in the US but for the development of customary international law applicable in other municipal (i.e. domestic) jurisdictions as the US piracy statute directly incorporates customary international law.

The petitions for writs of certiorari in U.S. v. Dire and U.S. v. Said  (available here and here) raise compelling arguments that interplay with Alien Tort Statute litigation. They ask whether piracy as defined by the law of nations incorporates modern developments in international law. The answer will hinge on the limits of a federal court’s authority to ascertain a narrow set of violations of international law construed as federal common law.

The place of federal common law in US courts has been a matter of debate amongst the Justices of the US Supreme Court in two recent cases addressing the Alien Tort Statute which, like the US piracy statute, is defined by reference to “the law of nations.” In Sosa v. Alvarez-Machain, the majority opinion (written by Justice Souter) held:

[T]his Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest.[…] [There remain] limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. […] It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

This led the US Supreme Court to determine that the Alien Tort Statute claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” These include treaties, custom, and the works of eminent jurists.

Justice Scalia was even more categorical in a partially concurring opinion that there exists only “a specifically federal common law (in the sense of judicially pronounced law) for a few and restricted ”areas in which a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law. […] [But] [C]ourts cannot possibly be thought to have been given, and should not be thought to possess, federal common-law-making powers with regard to the creation of private federal causes of action for violations of customary international law.”

“[T]he question to me is who are today’s pirates. And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is?” So asked Justice Breyer during the Kiobel v. Royal Dutch Shell oral argument on 1 October 2012

The Office of the Federal Public Defender takes up the federal common law debate in its petition, urging that although modern developments in international law might inform the existence of a civil cause of action, the same cannot inform the definition of a crime. It asserts,

Federal criminal law, unlike tort law, most decidedly is not an area in which judges are permitted to derive “substantive law in a common law way.” Sosa, 542 U.S. at 729. The elements of a federal criminal offense, in particular, must be defined by Congress alone. See, e.g., Liparota, 471 U.S. at 424. Elements of federal criminal offenses are not created by courts engaged in the uncertain enterprise of discerning the state of customary international law, unguided by an authority of last (or even first) resort.

Herein lies the crux of the issue. Must the law of nations as used as a definitional base in US statutes have a fixed meaning pertaining to crimes, when such is not required for civil causes of action? Given the central role piracy played in the recent oral argument in Kiobel v. Royal Dutch Shell, the Court may decide now is an opportune time to take up communis hostis omnium.

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Private or Pirate Navy?

October 10, 2012 6 Comments

Puntland Marine Police Forces source:Somaliareport.com

The autonomous region of Puntland in Somalia has gotten a bad rap for being a hotbed for pirates. Though unrecognized as a state, there has been some international expectation that Puntland should take steps to prevent and punish acts of piracy, particularly those originating from within Puntland. In this regard, there have been efforts to create a Puntland coastguard or Navy (the “Puntland Maritime Police Force”), bankrolled by the United Arab Emirates and with training from private security firms. This is where the story of Sterling Corporate Services takes off. The New York Times reports:

Concerned about the impact of piracy on commercial shipping in the Middle East, the United Arab Emirates has sought to take the lead in battling Somali pirates, both overtly and in secret by bankrolling operations like Sterling’s.

[…]

A United Nations investigative group described the effort by a company based in Dubai called Sterling Corporate Services to create the force as a “brazen, large-scale and protracted violation” of the arms embargo in place on Somalia

[…]

Sterling has portrayed its operation as a bold private-sector attempt to battle the scourge of piracy where governments were failing.

Somalia Report notes that the UN effectively shut down the estimated $50 million per year program by threatening sanctions against UAE for violations of the Somalia arms embargo. In addition to the illegal shipments of arms, the program may have been a criminal pirate enterprise.

A Private Navy?

There is an argument that private navies are legally permissible under the law of the sea, particularly the legal regime governing anti-piracy operations on the high seas. Such navies are permissible if the navy is “on government service and authorized to that effect” pursuant to Article 107 of UNCLOS. The idea here is that a government may hire private companies to engage in police functions so long as it is made explicitly clear by markings and identification that the ship is controlled by the government and under a presumably military chain of command. It has been argued that ships on government service could not only provide self-defence to an escorted ship but could also engage in pirate hunting. Alternatively, if a private navy is not on government service but limits its actions to those justified by individual (as opposed to sovereign) self-defence, it may also be legally permissible. Here, aggressive acts would be strictly limited to those necessary to repel an attack, as is consistent with general principles of the law of self-defence. It would not include acts intended to prevent future attacks.

This is where the status of Puntland as an autonomous region becomes important. Though the international community has chosen to engage the Puntland government, it has chosen not to recognize Puntland’s sovereignty instead deferring to the project of solidifying the new Somali Federal Government in Mogadishu. Therefore, naval vessels patrolling the territorial waters of Somalia off of the coast of the autonomous region of Puntland are not “on government service” for purposes of Article 107 of UNCLOS.

Alternatively, there is some evidence that other states may have supported the Puntland Navy:

American officials have said publicly that they never endorsed the creation of the private army, but it is unclear if Sterling had tacit support from parts of the United States government. For instance, the investigative group reported in July that the counterpiracy force shared some of the same facilities as the Puntland Intelligence Service, a spy organization answering to Puntland’s president, Abdirahman Farole, that has been trained by C.I.A. officers and contractors for more than a decade.

Even if this is the case, the Puntland naval vessels are not “clearly marked and identifiable as being on government service” by a recognized sovereign such as the United States or the UAE. Therefore, seizing pirates on the high seas would not be justified pursuant to Article 107 of UNCLOS.

A Pirate Navy?

This raises the question of whether an act of violence by the Puntland Navy against another ship on the high seas constitutes piracy. Although there is some continuing debate as to the “private ends” requirements in Article 101 of UNCLOS, the better view is that it excludes from the definition of piracy, acts of violence by a sovereign. As Puntland is not a sovereign power, this exclusion from the definition of piracy does not apply. Therefore, acts of violence, detention or depredation committed by a Puntland Navy on the high seas (even if purportedly for the purpose of protecting the territory and people of Puntland) would constitute acts of piracy.

As noted above, the other possible justification for the seizure of pirate vessels on the high seas by the Puntland Navy is the doctrine of personal self-defence. This would justify acts strictly necessary to repel an ongoing attack. It would not justify acts of violence against suspected pirate vessels prior to an attack. Nor would it justify acts within the typical mandate of a sovereign navy or coast guard, including patrolling waters and interdicting ships.

The International community was displeased that Sterling was training these individuals because it was an apparent violation of the arms embargo imposed on Somalia. But, technically, Puntland’s Navy may have also been engaged in acts of piracy.

Territorial Waters

The Puntland Navy was also likely conducting operations within Somalia’s territorial waters which are part of the sovereign territory of the Somali Federal Government. The latter has the exclusive right to protect its territorial waters and to restrict traffic through this zone (See e.g. Article 25 UNCLOS “Rights of protection of the coastal State”), although a number of Security Council Resolutions have given foreign sovereigns some powers of interdiction in these waters as an exceptional measure. It is theoretically possible that the Somali Federal Government would attempt to delegate this coast guard function to an autonomous region’s forces such as the Puntland Navy. But it is unclear if this would be permissible pursuant to international law or whether Puntland would be willing to act on behalf of the Somali Federal Government, as opposed to under its own asserted authority as a sovereign.

Free Agents

The more practical question, now that the funding for Puntland’s Navy has disappeared, is what will happen to the individuals who were trained by Sterling. The New York Times reports:

With the South African trainers gone, the African Union has turned to a different security contractor, Bancroft Global Development, based in Washington, to assess whether the pirate hunters in Puntland can be assimilated into the stew of other security forces in Somalia sanctioned both by the United States and the African Union. Among those groups are a 10,000-man Somali national army and troops of Somalia’s National Security Agency, based in Mogadishu, which is closely allied with the C.I.A.

[…]

But with the antipiracy army now abandoned by its sponsors, the hundreds of half-trained and well-armed members of the Puntland Maritime Police Force have been left to fend for themselves at a desert camp carved out of the sand, perhaps to join up with the pirates or Qaeda-linked militants or to sell themselves to the highest bidder in Somalia’s clan wars — yet another dangerous element in the Somali mix.

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New Article: Pirate Accessory Liability

October 6, 2012 Leave a comment

In view of the debate concerning the prosecution of pirate leaders and financiers, I have posted a new article on SSRN entitled: Pirate Accessory Liability – Developing a modern legal regime governing incitement and intentional facilitation of maritime piracy. I attach the abstract for your information:

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of the UNCLOS or the travaux préparatoires and leaving domestic jurisdictions to fill these gaps risks creating a fragmented, and potentially contradictory, legal framework. On the contrary, resort to general principles of law ascertained by international criminal tribunals creates a predictable, and consistent, understanding of these modes of responsibility. This article shows how the jurisprudence of the ad hoc criminal tribunals fills the gaps in the law related to incitement and intentional facilitation of piracy. It further shows how these modes of responsibility are particularly suited to charges of financing pirate organizations or inciting children to participate in pirate enterprises.

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POST #100 – Developing Consensus on Specialized Piracy Chambers

September 28, 2012 3 Comments

It is perhaps appropriate that our 100th Post at Communis Hostis Omnium should discuss the issue of a prosecution mechanism and the Jack Lang Report as this was the same topic of our first post in January 2011. From its humble beginnings, this blog has grown in readership and gathered many contributors along the way. We will continue to provide objective analysis of the legal issues surrounding maritime piracy and hope to add some new features. In this regard, today we are introducing a feature called the Weekly Piracy Review which will provide a brief summary of the most important news events of the week and link to relevant analysis where appropriate. Our thanks and welcome to Christine Hentze for taking up this feature. Please continue reading and commenting!

Specialized Piracy Chambers

There appears to be a developing international consensus that something more than national prosecutions of pirates must be pursued in order to address the growing backlog of piracy prosecutions and to reduce the problem of catch and release. That solution appears to be a specialized piracy chamber. A specialized piracy chamber would be a court created within one or more regional states (i.e. Seychelles, Kenya, or possibly Tanzania) and would deal with every piracy prosecution referred thereto. The court would apply that state’s municipal law consistent with the applicable constitutional and statutory framework. Furthermore, the state’s criminal rules of procedure would apply, although specific rules of evidence might need to be adopted in view of its unique mandate. Two sources in particular indicate this is the solution that is gaining support.

The 2011 Digest of United States Practice in International Law (released in July 2012) sets forth the U.S. State Department’ s view as follows:

It is true that suspected pirates have been successfully prosecuted in ordinary courts throughout history. Because of this, the Administration has previously been reluctant to support the idea of creating an extraordinary international prosecution mechanism for this common crime. Instead, the Administration has focused on encouraging regional states to prosecute pirates domestically in their national courts. However, in light of the problems I’ve described to you today, the United States is now willing to consider pursuing some creative and innovative ways to go beyond ordinary national prosecutions and enhance our ability to prosecute and incarcerate pirates in a timely and cost-effective manner. We are working actively with our partners in the international community to help set the conditions for expanded options in the region. In fact, we recently put forward a joint proposal with the United Kingdom suggesting concrete steps to address some of the key challenges we continue to face.

[…]

In addition, we have suggested consideration of a specialized piracy court or chamber to be established in one or more regional states. The international community is currently considering this idea, along with similar models that would combine international and domestic elements. These ideas are under discussion both in the UN Security Council and in the Contact Group.” (emphasis added).

To provide some background, in July 2010, Jack Lang proposed 7 potential mechanisms for such prosecutions. As we noted here, a subsequent Secretary General Report of January 2012 discusses the modalities for several of these options, focusing on 4 of the 7 options. Initially, there was support from some members of the Security Council for the idea that an international tribunal should be created for the prosecution of pirates. However there was resistance from the U.S. and the U.K. based on the continued viability of national prosecutions based on universal jurisdiction. But strictly national prosecutions do have their limits as is noted by the 2011 Digest:

[M]any of the countries affected by piracy—flag states, states from where many crew members hail, and many of our European partners—have proven to lack either the capacity or the political will to prosecute cases in their national courts. Furthermore, states in the region that have accepted suspects for prosecution to date have been reluctant to take more, citing limits to their judicial and prison capacities and insufficient financial support from the international community. As a result, too many suspected pirates we encounter at sea are simply released without any meaningful punishment or prosecution, and often simply keep doing what they were doing. This is the unacceptable ‘catch and release’ situation that has been widely criticized, and for which we must find a solution.”

It further notes that:

 [W]e need to acknowledge the reality that many states, to varying degrees, have not demonstrated sustained political will to criminalize piracy under their domestic law and use such laws to prosecute those who attack their interests and incarcerate the convicted. The world’s largest flag registries—so-called “flags of convenience”—have proven either incapable or unwilling to take responsibility. And given the limited venues for prosecution, states have been reluctant to pursue prosecutions of apparent or incomplete acts of piracy, limiting our ability to prosecute suspects not caught in the middle of an attack.

Hence the need for specialized piracy chambers. A new article by Douglas Guilfoyle supports this view of a developing consensus in the Security Council and his view that specialized chambers are the only practical solution. First Guilfoyle dismisses the other options set forth in the Jack Lang report. He notes that “the earlier calls from some politicians and diplomats for an international piracy tribunal have seemingly fallen away, [. . .] The idea can therefore finally be treated as dead and buried.”

He also considers a dedicated territorial court in Somalia (Puntland or Somaliland) or an extraterritorial court applying Somali law (along the model of Lockerbie) to be unrealistic because “Puntland has a piracy law but no meaningful judicial capacity or immediate ability to attain international standards. An extra-territorial court would require an adequate Somali piracy law and constitutional framework (which does not exist) and a pool of Somali judges (which is not available)”

He therefore concludes that “[P]rosecutions before national jurisdictions are the only feasible option, whether in the general court system or dedicated chambers. […] The question is now largely one of modalities.” These modalities will include the following: (1) identifying which states will create specialized chambers; (2) determining whether UN support is required; (3) and if so, establishing agreements for the provision of such assistance. In this regard, Guilfoyle raises an interesting problem:

[S]ome prosecuting jurisdictions, in a climate in which foreign aid budgets are dwindling, may be in a rare position to provoke a bidding war for international assistance between the various counter-piracy missions in the Gulf of Aden in return for prosecutions. A rational allocation of counter-piracy resources may thus require a more centralized approach in negotiating future agreements.

The most likely candidate for this centralized role would be UNODC and/or UNDP as they have taken the lead in establishing the modalities for these specialized chambers. At the same time, donor states will have to be consulted. Considering all of the stakeholders and the fragmented nature of responses to piracy, strong leadership will be required to create a holistic solution.

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