Piracy Conviction Sets Stage for 4th Circuit Appeal

April 28, 2012 2 Comments

Reuters reports that Mohammad Saaili Shibin has been convicted on 15 counts in a U.S. Federal District Court, including charges of piracy, hostage taking, kidnapping and conspiracy. He faces a mandatory life sentence in a U.S. prison on the piracy charge based on the underlying conduct of negotiating ransoms for hostages kidnapped at sea. Due to this harsh sentence, Shibin is likely to appeal the conviction on the piracy charge. As Jon Bellish has previously noted on this blog, this sets the stage for the 4th Circuit Court of Appeals to consider whether “piracy as defined by the law of nations” in 18 U.S.C. § 1651 (adopted in 1816) constitutes a static or evolving concept. In other words, since the “law of nations” is not defined in the statute, is it defined as a matter of international law circa 1816 or does the definition evolve with changes in treaty and customary international law?

In my view, the 4th Circuit should interpret Section 1651 to encompass the defintion of piracy as it appears in the 1982 UN Convention on the Law of the Sea (UNCLOS). If we take the traditional ICJ formulation of the “law of nations,” the definition could derive either from international treaties or customary international law (or general principles). Although not a state party to UNCLOS, the U.S. has accepted the definition of piracy in UNCLOS as customary international law for the last four presidencies (see 2010 Digest of US Practice in International Law). There is no nullum crimen problem, as this definition has been accepted long before the offenses were committed (in 2009 or 2010). Nonetheless, the 4th circuit may be reticent to find an evolving concept within the statute. If the argument is that an evolving concept is antithetical to legal certainty in criminal law, one could argue that piracy is sui generis and limit the evolving concept to this particular crime. Other crimes in Title 18 are unlikely to be defined by “the law of nations”. In any event, the definition arguably has not changed since 1932 as the Harvard study’s definition from that year made its way into UNCLOS. In Shibin’s case, the jury instruction for the piracy charge will be of particular interest as it will have an impact upon how the appellate issues are framed.

If the 4th Circuit adopts the UNCLOS definition of piracy, the second question will be whether negotiating a ransom from land can constitute “inciting or intentionally facilitating” piracy under Section 101(c) of the Convention. The plain language would tend to support an affirmative response. But how far does “intentionally facilitating” extend? For example, does it extend to the cook or driver at the pirate’s land base? The travaux preparatoires of the 1982 UNCLOS Convention (and its precursor 1958 LOS Convention) provide little assistance in delineating the boundaries of these modes of participation. Likewise, these modes are not included in the ICTR, ICTY or ICC statutes, thereby rendering their jurisprudence of little assistance in an interpretive study. (Note: the ICTR Statute does include the mode of direct and public incitement, but this is particular to the crime of genocide and the “direct” and “public” aspects of this mode are integral to the definition). How the 4th Circuit decides this issue could have a significant impact on how future prosecutions proceed.  That being the case, and considering the U.S. judiciary’s recent difficulties in properly examining issues of international law and ICL in particular, the 4th circuit could well benefit from an amicus curiae brief based on expertise in these areas.

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Use of Private Guards and VPDs Remains Controversial

April 9, 2012 Leave a comment

Staff of IntelEdge - A Private Security Firm

The Contact Group on Piracy off the Coast of Somalia, as you will recall, was created by a UN Security Council Resolution in 2009 and is now composed of more than 60 countries and international organizations. It recently held its eleventh plenary session and issued a press communique measuring the progress of the fight against piracy. The statement first notes that the problem of piracy is far from under control:

Concluded that piracy continues to pose a serious threat, noting that while the number of hostages in captivity has decreased since the last meeting (currently 197 individuals as of 19 March 2012, as compared to 250 in November 2011), the number of hijacked vessels has gone up, and currently stands at 13, compared to ten at the last Plenary in November 2011; total incidence of attacks also remains high, with 36 reported so far in 2012, seven of which have been successful;

The statement then acknowledges the assistance that private guards and, government-provided vessel protection detachments (VPDs) can provide.

Noted that the low success rate of attacks was a positive development due to a combination of factors, including the application of best management practices (BMPs) by the shipping industry, the continuing naval presence and more effective engagement rules, deployment of military Vessel Protection Detachments (VPDs), and the more legally challenging issue of privately contracted armed security personnel (PCASP); and recalled the need for close cooperation between coastal states in the region, flag states, and countries deploying VPDs;

Key here are the difficult legal issues raised by the use of private armed guards and the fact that these issues have not found any ready answers. In fact, the statement,

Noted the concern of some coastal states in the Indian Ocean region about the increasing use of armed guards by commercial ships in the proximity of such states, and invited [Working Group] 2 and [Working Group] 3 to discuss the implications of the use of such guards, and potential ways to address the related concerns.

In addition to legal issues such as when the use of force is justified, some new ones have presented themselves. Private Security Companies were always confronted with the difficulty of complying with multiple legal regimes in different ports of call. While a point of origin might permit possession of some weapons, perhaps the next port of call would not. In some instances, this led to the disposal of weapons at sea. See also here. Now, in order to avoid these conflicting legal regimes, some private security companies have reportedly, stored guns aboard floating armories on the high seas in order cut costs and circumvent laws limiting the import and export of weapons. As the statement of the Contact Group makes clear, a consensus position on these issues is still some ways off.

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Direct application of the international law of piracy in municipal systems

March 22, 2012 Leave a comment

Cross-posted at The View From Above.

Most legal authorities assume that signing and ratifying the UN Convention on the Law of the Sea is insufficient, in and of itself, to provide a state a jurisdictional basis to prosecute acts of piracy on the high seas.  For example, Jose Luis Jesus, the former President of the International Tribunal for the Law of the Sea has explained:

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.

Similarly, the most recent UNSG report of 19 January 2012 on the problem of piracy in the Gulf of Guinea states that UNCLOS provides for universal jurisdiction to prosecute pirates, but since Benin’s Maritime Code does not incorporate these provisions, Benin’s jurisdiction on piracy acts committed on the high seas is limited to acts committed by its citizens or on board of Benin’s ships.  The same concern has been expressed regarding the failure of the Transitional Federal Government to pass legislation criminalizing piracy in Somalia. Finally, based on UNCLOS Article 100 which requires that states must “cooperate to the fullest possible extent in the repression of piracy”, Douglas Guilfoyle has stated that “the inference is that States have no duty to enact relevant national offences [for piracy] and have ‘a certain latitude’ to cooperate in suppressing piracy by means other than prosecution.”

This view is understandable when observed through the lens of treaty law whereby implementing legislation is a necessary prerequisite to application within a municipal system. But the international law of piracy has also been accepted as customary law. For example, the 2010 Digest of US Practice in International Law, though noting the U.S. has not signed or ratified UNCLOS, states, “the actions and statements of the Executive Branch over more than six decades reflect the consistent U.S. view that this definition [of piracy in Article 101 of UNCLOS] is both reflective of customary international law and universally accepted by states.” Furthermore, each of the UN Security Council resolutions on piracy in Somalia and the Gulf of Guinea have emphasized that the only definition for the crime of piracy in international law is the one set forth in UNCLOS to which 162 states are states parties. UNCLOS has codified the customary international law of piracy.

Considering the law of piracy is settled both in treaty as well as customary law, is it possible that it is directly applicable in municipal systems without the need for implementing legislation? Some states accept that international law, especially with regard to jus cogens or very serious crimes (such as crimes against humanity and war crimes), applies directly within that state without the need to pass such legislation. With regard to piracy, whether or not it may apply directly would appear to hinge on a number of factors, including the gravity of the offence, whether there is a duty to prosecute in international law, whether the applicable treaties are self-executing, and the nature of a municipal system as monist or dualist. (Ward N. Ferdinandusse’s study is particularly helpful on this point.) Direct application of international law is not without precedent in African states, but will obviously need to be addressed on a case by case basis. To cite but one intriguing example, the 2010 Kenyan Constitution provides in Article 2 that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

The somewhat academic question of the indirect or direct application of international legal norms may not have been addressed by many African states confronted with piracy. Therefore, in the absence of clarity on this issue, the least risky practice would be to assume there is no direct application and insist on the codification of the legal definition of piracy in municipal law prior to instituting any prosecution. Indeed this seems to be the strategy adopted by the UN Security Council Resolutions on the issue. Is it, nonetheless, possible that the international law of piracy is directly applicable in certain African states, thereby rendering criminalization in positive law superfluous? The answer could have important ramifications for prosecutions in states without anti-piracy legislation or in those with incomplete legislative frameworks.

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U.S. Strongly Favors Armed Guards

March 20, 2012 Leave a comment

Source: BBC News

Last week, U.S. Assistant Secretary of State Andrew J. Shapiro gave an important speech in which he expressed unreserved support for PMSCs in the fight against maritime piracy. His remarks signal a keen interest in tackling the growth of organized criminal gangs perpetrating acts of piracy. Most importantly for commercial shipping operations and for the private security companies they hire, he signaled the willingness of the U.S. government to facilitate PMSCs in their operations. Some highlights:

Yet we must also recognize that best management practices do not guarantee security from pirates. Pirates operate in too large of an area for naval forces to respond quickly. The reality is that international naval forces simply might not be there to respond. The problem of piracy is one that can’t simply be solved by national governments. Therefore, we have also supported industry’s use of additional measures to ensure their security – such as the employment of armed security teams. To date, not a single ship with Privately Contracted Armed Security Personnel aboard has been pirated.Not a single one.

These teams serve as a potential game-changer in the effort to counter-piracy. This is because – and as anyone in the Navy or Marines can tell you – one of the most difficult combat maneuvers to undertake is to board a ship when coming under fire. While many expected these teams to be made up of undisciplined “cowboys” that would increase the violence at sea, from what we have gathered and observed the opposite has happened. We have not seen cases of pitched battles at sea between armed security teams and pirates attempting to board under fire. In fact, in most engagements between armed security teams and pirates, the situation ends as soon as pirates are aware these teams are on board. We have found these teams to be highly professional. In most cases, as pirates approach a ship the armed security teams will use flares or loudspeakers to warn the pirates. If the pirates keep coming, they will fire warning shots. That is usually when the interaction ends. Pirates break off the attack and turn their skiffs around and wait for another less protected target.

At the State Department, we have encouraged countries to permit commercial vessels to carry armed teams. However, we do note that this is a new area, in which some practices, procedures, and regulations are still being developed. We are working through the Contact Group and the International Maritime Organization or IMO on these issues. For instance, we have advised that armed security teams be placed under the full command of the captain of the ship. The captain then is in control of the situation and is the one to authorize the use of any force. Last September, we were encouraged to see language adopted by the IMO that revised the guidance to both flag States and ship operators and owners to establish the ship’s master as being in command of these teams.

There have been some logistical and technical issues that have arisen with armed security teams – particularly relating to weapons licensing and the transit of these teams through third countries. The United States regularly works with other governments to help resolve questions on weapons licensing to facilitate compliance with the laws of individual port States as related to firearms transfer. We engage through the Contact Group and the IMO to encourage all port and coastal States to adopt legislation that is conducive to smooth, facilitated movements of security team firearms and equipment. Currently, some States present challenges in this regard by requiring transfer to a third party while a vessel is moored in a port. Others impose fee schedules that directly charge against the presence of these weapons. In response, we have demarched port and coastal States and let them know that U.S. vessels may have firearms onboard and we request that these teams and their firearms be facilitated under applicable laws. We have also worked with the Coast Guard and Department of Transportation at the IMO and through the Contact Group to further encourage port and coastal States to develop regulations that facilitate the use of these teams aboard commercial vessels. We are working hand in glove with industry in all these endeavors to ensure these teams are both properly regulated and properly equipped.

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Changing Landscape of Gulf of Guinea Piracy as UN Takes a Secondary Role

March 14, 2012 2 Comments

Despite recent efforts to increase naval patrols, pirate attacks and incidents of armed robbery at sea have continued throughout the Gulf of Guinea and in particular in the Niger Delta region of Nigeria and off the coast of Benin. The region is extremely resource-rich, with oil, cocoa, and various minerals filling tankers and bulk carriers. Since the beginning of 2012, there have been numerous attacks on such vessels in the Gulf of Guinea.  Such attacks tend to be more violent than those in the Indian Ocean. For example, in one recent attack, pirates killed the captain and chief engineer of a cargo ship off the coast of Lagos, Nigeria. A number of recent developments in the dynamics of this criminality and the international community’s efforts at addressing it are worth surveying here.

Piracy and Terrorism in the Gulf of Guinea

It has been suggested that increased militancy in the Niger Delta region is the root cause of the rise of piracy in the Gulf of Guinea. For example, in another recent attack, the captain and chief engineer of a Dutch ship were kidnapped and a crew-member injured.  MEND, the Movement for the Emancipation of the Niger Delta, whose mission is to fight for a fairer distribution of Nigerian oil revenue, has been accused of involvement in the recent pirate attack. But MEND has specifically disclaimed responsibility and refused to mediate between the pirates and hostage negotiators. Nonetheless, MEND continues to operate in the Niger Delta despite a widespread amnesty last year aimed at disarming the movement and claims to be responsible for the recent killing of Nigerian police at a marine checkpoint. Nigerian security forces deny this claim. What can be said is that just as with Somali piracy, there has been a tendency to conflate terrorism and piracy in the Gulf of Guinea without a thorough factual analysis. That said, other types of transmaritime criminality clearly interact with and will have an effect upon piracy in the Gulf of Guinea.

Fuel Subsidies and Smuggling

Nigeria President Goodluck Jonathan’s recent move to decrease the fuel-subsidy in his country, hugely unpopular at home, may have an impact on pirate operations. It has been reported that land-based smugglers of cheap Nigerian-subsidized fuel to neighbouring countries are having trouble turning a profit. One smuggler explained:

The removal of subsidy has choked our business. It is no longer lucrative as the price of fuel in Cameroon is between N160 and N180 per litre; by the time you bribe some officials of the two countries at the border, what you get after selling the fuel is not encouraging at all.

Although the reduced fuel subsidies will have the effect of reducing cross-border fuel smuggling, these criminals will be looking for other sources of revenue and could look to piracy as a new source of income. The situation is further complicated by the presence of a more expansive variety of transmaritime criminality in the region, including drug trafficking, illicit fishing, illicit dumping of toxic waste, and illegal or clandestine immigration or migration. For example, The United Nations estimates that $1 billion worth of cocaine, destined for Europe from Latin America, passed through West Africa in 2008. Much of this criminality is perpetrated in and through maritime jurisdictions and will often be associated with pirates. A comprehensive solution must take all transmaritime criminality into account.

General Features of Piracy off the Gulf Guinea

In the face of this volatile situation, the UN undertook an assessment mission and issued two important documents regarding the Gulf of Guinea situation. A recent report of the Secretary General sheds some light of the general features of West African piracy and how the international community plans to address it.

The UN Secretary General reported on 19 January 2012 (only recently released) that piracy in the Gulf of Guinea since the late 1990s has focused on high-value assets, particularly oil shipments.  Shell executive vice president Ian Craig has noted that as much as 150,000 barrels of crude a day is being stolen by oil thieves in the Niger Delta. But since Nigeria has responded robustly to the growth of piracy, attacks have migrated to the Benin port of Cotounou (19 nautical miles to the west). Recent attacks are generally targeted at oil and chemical ships at a distance of over 40 nautical miles from shore (i.e. on the high seas). Pirates generally steal cargo and sell it on the black market – as opposed to holding the goods or crewmen for ransom (as in Somalia).

These attacks have had a significant impact on the economies of West Africa. There are 70 percent fewer ships entering the Cotounou port. This port is the entry point for goods to in-land countries such as Niger, Mali, and Burkina Faso who will also suffer from increased costs due to scarcity of goods and increased insurance rates on all maritime shipments. In contrast, attacks off the Central African coast mainly target oil drilling platforms and ships in order to steal money and goods from crew. The combined effect of these types of piracy is an estimated annual loss of $2 billion to the West African subregional economy.

However, West African countries have had somewhat more success than their East African counterparts in mobilizing regional resources and coordinating efforts to prevent and punish pirates. Of particular note is the cooperation between Nigeria and Benin in conducting joint patrols (albeit with some international contributions). Their relative success may be partly attributable to a more limited geographic area of recent attacks (as compared with Somali pirates who have perpetrated attacks over 1000 nautical miles from the coast of Somalia). More importantly this is attributable to the fact that there are robust state institutions in the areas targeted by pirates. That said, more must be done to increase state capacity, and, in particular naval capacity. Furthermore, pirates are bound to find where governance structures are the weakest and to take advantage of those failures (e.g. by launching attacks from states lacking effective naval or coast guard patrols).

The UN’s Secondary Role and Upcoming Regional Conference

As a result of this organic cooperation, the UN and the international community have taken a secondary role in the fight against piracy in the Gulf of Guinea. The UN, both in the UNSG’s report and in its Security Council Resolution, lauds the current littoral state cooperation and encourages the Gulf of Guinea states to strengthen this cooperation, while promising to provide international financial assistance where required. It is clear from the statements of a number of representatives after the 27 February 2012 briefing on the UNSG report that a number of states would prefer to leave West and Central African states to take the lead in enhancing regional security against piracy and armed robbery in the Gulf of Guinea. The U.S., for one, has responded to this call by committing about $35 million for the training of naval personnel in Nigeria and other countries within the Gulf of Guinea on how to combat piracy and other maritime crimes. It is not suggested that the international community should create a joint naval force, such as EUNAVFOR, to combat pirates. This may encourage a reliance on PMSCs in the Gulf of Guinea where shippers lack confidence in littoral state navies.

Following on the recent report, the UNSC adopted a resolution 2039 on 29 February 2012 encouraging littoral states of the Gulf of Guinea to adopt the recommendations in the report. In particular, it encourages Benin and Nigeria to continue joint naval patrols and to work independently to secure their territorial waters. In addition, it suggests that the international community provide all possible assistance. Finally, it advocates a regional conference including Gulf of Guinea states, in collaboration with the African Union, in order to elaborate a regional strategy to fight piracy. As stated in UNSC 2018, the purpose of the conference would be the following:

to consider a comprehensive response in the region and [for] the States of the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC) to develop a comprehensive strategy, including through: (a) the development of domestic laws and regulations, where these are not in place, criminalizing piracy and armed robbery at sea; (b) the development of a regional framework to counter piracy and armed robbery at sea, including information-sharing and operational coordination mechanisms in the region; and (c) the development and strengthening of domestic laws and regulations, as appropriate, to implement relevant international agreements addressing the safety and security of navigation, in accordance with international law.

The planned conference (a “joint regional summit of Heads of State of the three regional organizations”) is to take place as soon as possible in 2012, but has not yet been assigned a specific date or location. As this conference approaches, regional organisations would do well to consider that further developing regional coordination will be key to formulating a comprehensive counter-piracy strategy in face of the resource fragmentation that currently exists in this sector.

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