Somali Piracy Conference

Piracy Conference Brochure TitlePiracy Conference devoted to the discussion of maritime piracy issues will take place at the Case Western Reserve University School of Law this Friday, September 6th.  The conference will unite prominent piracy scholars, NGO activists, international organization members and government officials, to discuss topics such as the treatment of juvenile pirates, the necessity to prosecute piracy organizers and financiers, new trends in the global combat against piracy, as well as operations and law enforcement issues related to the apprehension of suspected pirates.  The keynote address will be delivered by Senator Romeo Dallaire of Canada, founder of the prominent Child Soldier Initiative at Dalhousie University.  The conference is open to the public and will also be available via webcast.

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Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

Private Security Guards

Cross-posted at international law girls.

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers.

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings.

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity.

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.

The “Private Ends” Requirement of UNCLOS in the 9th Circuit: Are Sea Shepherds Pirates?

Sea Sheperd Conservation Society Vessel

The United States Court of Appeals for the 9th Circuit recently discussed the “private ends” requirement of the crime of piracy under international law.  In Cetacean v. Sea Shepherds, Judge Kozinski reversed the lower court and enjoined the Sea Shepherds, an international non-profit, marine wildlife conservation organization, from coming within 500 meters of any Japanese whaling vessels.  Judge Kozinski held that Sea Shepherds satisfied the “private ends” requirement of the United Nations Convention on the Law of the Sea (UNCLOS), and that they could accordingly be considered pirates under international law, regardless of their political and non-pecuniary motivation.    According to Judge Kozinski:

“You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.” (p. 2).

Scholars interested in the field of maritime piracy have been most fascinated by Judge Kozinski’s discussion of the “private ends” requirement.  Many have already debated Judge Kozinski’s determination that Sea Shepherds could be considered pirates under UNCLOS, with both enthusiasm and disagreement.  Eugene Kontorovich on Volokh Conspiracy agreed with Judge Kozinski and argued that the relevant distinction under UNCLOS is between private ends committed by private parties, and other acts committed by governments.  Thus, according to Kontorovich,

“It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.”

According to Kontorovich, as long as the Sea Shepherds were acting as private parties, and not governmental agents, their actions would satisfy the “private ends” requirement, despite the fact that the Sea Shepherds’ goals may be purely political (“private” clearly means ‘non-governmental,’ rather than selfish or not selfish”).   Kevin Jon Heller on Opinio Juris disagreed, and argued instead that the “private ends” requirement of UNCLOS excludes all politically motivated acts, not simply those committed by governments or governmental agents.  According to Heller,

“politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit.”

Pursuant to Heller’s argument, as long as the Sea Shepherds were acting toward a political goal, their actions could not satisfy the “private ends” requirement and they could not be considered pirates under UNCLOS.  Both Kontorovich and Heller would apparently agree that the Shepherds’ acts could be considered acts of maritime violence under the SUA Convention.

Finally, Jon Bellish on EjilTalk! acknowledged the debate between Kontorovich and Heller, and noted that both positions had significant support in the drafting history of UNCLOS and in other international law documents.  Bellish also argued that the question of what exactly the “private ends” requirement constitutes today was more nuanced than either Kontorovich or Heller seem to acknowledge:

“The outer bounds of the private ends requirement are relatively clear. On one end, proving animus furandi – or the intention to steal for personal pecuniary gain – is not required to satisfy the private ends requirement. On the other end, it is undisputed that acts of violence committed on the high seas under state authority fail to satisfy the private ends requirement. But there is significant room between these two extremes. Just exactly where the line should be drawn between these two extremes, and on which side of that line the Sea Shepherds fall, is a more difficult issue.”

Bellish concludes by agreeing with Kontorovich, and Judge Kozinski.  Bellish notes that if one were to adopt a narrow interpretation of the “private ends” requirement and to inquire in each instance about the perpetrator’s subjective intent (whether it was private/pecuniary or political), then one would have to exclude acts of Somali “pirates” from piracy, because their alleged motivation was announced as protecting their waters from illegal fishing exploitation and environmental dumping.

While it is difficult to disagree with this argument, it is equally difficult to conclude that Sea Shepherds easily fit within the traditional paradigm of piracy.  They do not.  Their goals truly are political and non-pecuniary, and their intent belongs more in the “political” category rather than the “private” one.  The Ninth Circuit may have adopted a too formalistic approach and a too wide reading of UNCLOS in holding that they were pirates.  When interpreting UNCLOS, modern-day judges may need to resort to a more flexible approach.  Instead of adopting a strict private/public distinction when interpreting the “private ends” requirement, it would be possible for judges to adopt a presumption that private parties act for private ends, unless such parties can demonstrate convincingly that their acts had a bona fide political purpose.  Under this approach, Sea Shepherds, as private parties, would first be classified as acting for private ends, but presumably they would be able to demonstrate that their purpose is purely political.  Sea Shepherds are not pirates, although their acts of violence at sea may be reprehensible.  Kevin Jon Heller, in the above-mentioned post, quoted the following language, from an essay by His Excellency Jose Luis Jesus, a judge on the International Tribunal for the Law of the Sea:

“This requirement seems to exclude sheer politically motivated acts directed at ships or their crew from the definition of piracy. In the past the issue of whether a politically motivated act was a piratical act drew substantial support from some publicists and governments. The piracy rules, specifically tailored to handle piratical acts, were in the past stretched in their interpretation and application by some national jurisdiction and by some commentators to also cover, by default, other unlawful, politically related, acts against ships and persons on board, such as terrorist acts….Today, however, especially after the adoption of the SUA Convention, it would appear to be a lost cause to continue insisting on considering such a politically-motivated act as piracy. If, in the past, politically-motivated acts of violence or depredation against ships and persons aboard, short of being piracy, were left out of the international regulatory system, as it were, today they are covered by Article 3 of the said SUA Convention.  Likewise, the ‘private ends’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the “private ends’’ criterion seems to be excluded. “

I agree with Judge Jesus, and Kevin Jon Heller, and would encourage courts to adopt a more flexible approach in their interpretation of the “private ends” requirement.

Piracy: Declining in the Gulf of Aden, Rising in the Gulf of Guinea

We are pleased to welcome Milena Sterio as a contributing author to Communis Hostis Omnium. She is an Associate Professor at the Cleveland-Marshall College of Law, where she teaches international law and international criminal law.  She has published numerous articles on the topic of maritime piracy, and she frequently lectures on this topic.  She is a member of the Piracy Working Group, an expert think tank founded by members of the prominent non-governmental organization, the Public International Law and Policy Group.  In her capacity as Piracy Working Group member, she traveled to the Seychelles and to Mauritius, where she consulted with local prosecutors and judges on best strategies toward successful national piracy prosecutions.

A crew member prepares to board a tanker that was hijacked by pirates in Benin on 24 July 2011. Photo: IRIN/Daniel Hayduk

Maritime piracy in the Gulf of Aden and elsewhere in the Indian Ocean appears to be on the decline.  In 2012, only 35 piracy attacks took place, compared to 163 attacks in 2009.  As of January 2013, Somali pirates were holding 4 large ships with an estimated 108 hostages.  In the past, the pirates had held dozens of ships and several hundred hostages at one time.  Some news reports indicate that many Somali pirates seem ready to abandon this once lucrative criminal endeavor.  Last year, Mohamed Abdi Hassan, a high-profile Somali pirate, was quoted as saying “I have given up piracy and succeeded in encouraging more youths to give up piracy.”

This decline in piratical activity off the east cost of the African continent is most likely due to several factors.  First, the Gulf of Aden and other waters of the Indian Ocean have been more heavily patrolled by joint maritime forces of several nations, including European Union and NATO-led fleets.  The presence of naval forces in these waters has deterred some pirates from attempting attacks on merchant ships.  Second, many merchant and passenger cruise ships sailing off the east coast of Africa have been staffed with armed security guards.  Statistics show that no successful pirate attack has ever occurred against a ship protected by armed guards.  Third, Somali pirates seemed to engage in the crime of piracy because it represented a lucrative business opportunity, which posed minimal risk and promised tens of thousands of dollars in financial gains.  Today, piracy is a more risky endeavor, because of the presence of naval fleets in the Indian Ocean as well as armed guards aboard ships.  Thus, Somali pirates may seem willing to abandon this criminal enterprise in order to possibly explore other kinds of opportunities.

Yet, although piracy seems to be declining off the east coast of Africa, the opposite is true for the west coast of the African continent.  Piracy in the Gulf of Guinea, home to major oil-producing states such as Nigeria, Angola, Equatorial Guinea, Gabon and Ghana, has been on the rise.  34 piracy incidents were recorded between January and September 2012, up from thirty in 2011. Togo reported more attacks in 2012 than in the previous five years combined, with three vessels hijacked, two boarded and six attempted attacks.  Piracy has also been on the rise in Benin.  In addition, Nigeria reported over twenty attacks in 2012.  And on February 3, 2013, a French oil tanker was reported missing off the Ivory Coast; according to the International Maritime Bureau, the ship was probably pirated off the shores of Nigeria.

The piracy model in the Gulf of Guinea resembles its counterpart in the Gulf of Aden in terms of the pirates’ modus operandi: in West Africa, pirates sail out to the sea on larger vessels but then launch attacks using smaller skiffs.  In addition, pirates in West Africa seem to be resorting to this crime because of factors similar to those that have existed in Somalia for several decades: insecurity, poverty, as well as a lack of education and employment opportunities.  However, while Somali pirates seemed mostly after collecting ransoms from shipping companies in exchange for the crew and cargo, pirates in West Africa seem more interested in keeping the cargo (mostly oil) of any successful hijacking operations, which they then sell on the black market.  Reports also indicate that pirates in the Gulf of Guinea are more prone to violence, and that they act in more brutal ways toward the captured crewmembers.  And because the Gulf of Guinea is a rich oil-producing region, its strategic importance, and thus the necessity of curbing the rising piracy threat, may be even greater than the piracy menace in the Gulf of Aden had ever been.

Unsurprisingly, like in the case of Somali piracy, the United Nations Security Council has become involved in finding solutions for this developing regional crisis.  On February 29, 2012, the Security Council adopted resolution 2039 calling on the Secretary-General to “support efforts towards mobilising resources following the creation of the regional strategy to assist in building national and regional capacities in close consultation with states and regional and extraregional organizations.”  Furthermore, on October 31, 2012, the United Nations Security Council, in resolution 2018, condemned all acts of maritime piracy and armed robbery at sea in West Africa’s Gulf of Guinea and encouraged states in the region to work together toward a comprehensive response to the menace of piracy.  The Security Council, in this unanimously adopted resolution, encouraged several regional organizations (the Council encouraged the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC)) to jointly develop a strategy against maritime piracy.  Such joint strategy could entail the drafting of more comprehensive domestic laws which would criminalize piracy and armed robbery at sea, as well as the development of an information-sharing regional center.  Moreover, the regional anti-piracy efforts could include the development of domestic laws which would implement international agreements existing in the field of international maritime law.  In addition, ECOWAS, ECCAS and GGC could engage in bilateral or regional maritime patrols in the Gulf of Guinea, in order to ensure the safety of maritime navigation and thwart potential piratical attacks.  Finally, the Security Council urged member states of ECOWAS, ECCAS, and GGC to cooperate with other states, such as states where ships are registered, and states where victims or perpetrators come from, in the prosecution of pirates as well as of piracy facilitators and financiers, in accordance with applicable international law.   The Security Council thus encouraged all states in the international community to assist countries in the region in strengthening anti-piracy efforts in the Gulf of Guinea.

Like the Security Council, the Secretary-General, Ban Ki-moon, has also expressed his intention to focus on the piracy problem in the Gulf of Guinea, by deploying a United Nations assessment mission to the region in order to explore options on how to best address the problem.  According to the Secretary-General, piracy in the Gulf of Guinea could hinder economic development and undermine security in the region.

Within the next few months, the Security Council expects a briefing from Said Djinnit, the Secretary-General’s Special Representative and head of the UN Office for West Africa (UNOWA), on the Secretary-General’s semi-annual report, including an update on the Gulf of Guinea piracy problem.  The international community will have hopefully learned from the Gulf of Aden piracy epidemic, which seems to have been successfully curbed through coordinated international maritime efforts, that anti-piracy efforts in the Gulf of Guinea will similarly require international and regional strategy and a comprehensive anti-piracy plan.