Update: Le Ponant Trial Judgement

August 20, 2012 by Leave a comment

Our readers might remember Valerie Gabard’s guest post on the recent trial for the 2008 hijack of the French luxury yacht Le Ponant and the kidnap of its crew. After four years of pre-trial detention, two of the six Somali accused were acquitted, while the four others were convicted and sentenced to four to ten years of imprisonment.

We have now obtained the trial judgement in the case, issued by the 2nd Section of the Court d’Assise of Paris. Contrary to initial speculations, it seems that the Prosecution have decided not to appeal the Court’s decision, which is therefore final. Unfortunately, the judgement won’t shed much light on the Court’s motivations. In keeping with French practice for criminal trials, the judgement, at least when looked at from the perspective of international justice standards, is scantily reasoned, containing little or no more than the accusations against the accused, a recall of the main trial procedural steps and the court’s verdict.

It has to be recalled that the accused were charged with kidnapping, illegal confinement and organized gang theft in pursuance of Articles 224-6 of the French Criminal Code but not with a specific offence of committing piracy due to the temporary absence, in 2008, of a specific definition of piracy in the French criminal system. In the meantime, a new Anti-Piracy legislation was introduced in January 2011.

Filed under Somalia, Worldwide Tagged with , , , , , ,

The International Day of the Seafarer

June 25, 2012 by Leave a comment

Today, 25 June 2012 marks the second international Day of the Seafarer. This year, the IMO is asking people around the world to use the power of social networks to highlight the importance of the work of seafarersm and raise awareness of seafarers and their unique role. Everyone, regardless of where they live, can join the campaign online, in particular by commenting the Day of the Seafarer Facebook page at www.facebook.com/SeafarerDay.

“Seafarers leave their homes and families, often for long periods to ensure that essential items and commodities on which our lives depend arrive safely at our homes.” (IMO)

Seafarer often finds themselves under demanding and sometimes dangerous circumstances, particularly in pirate-prone areas. The following are some of the most significant findings from the recently released 2011 Oceans Beyond Pirates Report on the human cost of piracy in the Indian Ocean:

  • 3,863 seafarers were fired upon by Somali pirates with assault rifles and rocket propelled grenades;
  • 968 seafarers came into close contact with pirates, who managed to board their vessels;
  • 413 seafarers were rescued from citadels;
  • 1,206 hostages were held captive by Somali pirates;
  • 555 seafarers were taken hostage in 2011; 645 hostages were captured in 2010 and remained captive during 2011; 6 tourists and aid workers were kidnapped on land;
  • 35 hostages died as a result of pirate captivity in 2011;
  • Average length of captivity was 8 months.

These findings are particulary concerning and demand continuing attention and engagement from all stakeholders in the maritime field. Several initiatives have been launched to support the plight of kidnapped seafarers and their families. Among those, is Save Our Seafarers which runs an on-going worldwide awareness campaign to raise the profile of Somali piracy in political and media circles, in order to see Somali piracy deterred, defeated and eradicated, and to stop seafarers being tortured and murdered.

Filed under Somalia, Worldwide Tagged with , , , , ,

Upcoming Event: Second International Counter-Piracy Conference – Dubai, 27-28 June 2012

May 30, 2012 by 4 Comments

As announced during the anti-piracy chapter of the recent London Conference on Somalia, the United Arab Emirates will host its second International Counter-Piracy Conference next month. The event, which follows a similar initiative convened in April 2011, will be held in Dubai, UAE on 27-28 June 2012. The Conference aims to further advance public-private coordination and partnership to combat maritime piracy, bringing together high-level government officials from more than 50 countries, senior representatives of international organizations and CEOs from leading global companies from maritime-related businesses. The UAE, the current chairman of the Contact Group on Piracy Off the Coast of Somalia, has since long engaged in counter-piracy initiatives in the Gulf of Aden and the larger area of the Indian Ocean.

The official website of the Conference can be found here. Notably, some of the main presentations and position papers are already available, giving a sneak preview of the upcoming debate.

Filed under Somalia, Worldwide Tagged with , , , , ,

4th Circuit Decides Definition of Piracy Evolves with the Law of Nations

May 24, 2012 by 2 Comments

A three-judge panel of a U.S. appeals court has decided that UNCLOS sets forth the definition of piracy for purposes of U.S. law. As we signalled here and here, the U.S. Court of Appeals for the 4th Circuit was faced with the question of 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 a well-written and extremely thorough decision, the court has determined that the law of nations is an evolving concept and that the definition contained within UNCLOS constitutes the law of nations as defined in the statute.  Since UNCLOS defines piracy in part as ‘an illegal act of violence,’ a completed theft is not requisite to the crime. This has important repercussions for future prosecutions because pirates are often unsuccessful in boarding ships or taking anything of value even though they may fire upon vessels with AK-47s and RPGs.  Limiting the definition to the law of 1816 would have prevented U.S. courts from exercising jurisdiction where conduct less than a completed robbery was perpetrated. Here are the crucial bits of the opinion:

The defendants would have us believe that, since the Smith era, the United States’ proscription of general piracy has been limited to “robbery upon the sea.” But that interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases. See Sosa, 542 U.S. at 761 (Breyer, J., concurring in part and concurring in the judgment) (explaining that universal jurisdiction requires, inter alia, substantive uniformity among the laws of [the exercising] nations”). At bottom, then, the defendants’ position is irreconcilable with the noncontroversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. In these circumstances, we are constrained to agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations.

We also agree with the district court that the definition of piracy under the law of nations, at the time of the defendants’ attack on the USS Nicholas and continuing today, had for decades encompassed their violent conduct. That definition, spelled out in the UNCLOS, as well as the High Seas Convention before it, has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy. For example, in November 2011, the United Nations Security Council adopted Resolution 2020, recalling a series of prior resolutions approved between 2008 and 2011 “concerning the situation in Somalia”; expressing “grave[ ] concern[ ] [about] the ongoing threat that piracy and armed robbery at sea against vessels pose”; and emphasizing “the need for a comprehensive response by the international community to repress piracy and armed robbery at sea and tackle its underlying causes.” Of the utmost significance, Resolution 2020 reaffirmed “that international law, as reflected in the [UNCLOS], sets out the legal framework applicable to combating piracy and armed robbery at sea.”

Considering the importance of this opinion, the public defender may choose to petition for en banc review. The three judges on this panel were all Democratic appointees, which may mean they were more receptive to the evolving law concept. Whereas if the entire bench (15 judges) were to hear the case, it could reach a different conclusion.  The defendants also have the option of appealing to the U.S. Supreme Court. Therefore, there may yet be more to this story.

Filed under Somalia, Worldwide Tagged with , , ,

Prosecution seeks death penalty for Felony Murder

May 23, 2012 by 1 Comment

Ahmed Muse Salad, Abukar Osman Beyle and Shani Nurani Shiekh Abrar entered their pleas to murder and other charges in U.S. District Court in Norfolk, July 20, 2011. (Credit: AP)

It was recently announced that federal prosecutors in the U.S. intend to seek the death penalty against three Somalis if they are convicted of murder in the fatal shooting of four Americans which occurred aboard a hijacked yacht during a failed rescue attempt last year. Of the other Somalis implicated in the incident: one was released by authorities because he is a juvenile; eleven have pleaded guilty to piracy and been sentenced to life in prison; and the ransom negotiator’s piracy conviction is on appeal.  Furthermore, the AP reports that four of the hijackers died on board, including two who have been identified in court records as those who shot at the Americans. This last assertion is based on the charging documents before a judge or jury has established the actual facts of the case. But, if these facts are borne out at trial, the three Somalis who remain to be prosecuted, and for whom the Federal prosecutors are seeking the death penalty did not commit premeditated murder.

Somali pirates do not take hostages with the intent of killing them; that is bad for business. They intend to hold the hostages for ransom. Of course, the pirates who pointed guns at the American hostages and killed them evidently changed their plans upon the imminent boarding of the yacht by U.S. Navy SEALS (and were killed themselves). But it is not clear that that those charged in this last case intended to kill the hostages. Some of them claim to have attempted to stop the killings. This is supported in part by the Prosecutor’s charging documents which indicate the deaths occurred in the commission or immediate flight from the offenses of kidnapping, hostage taking and violence against maritime navigation. Therefore, the basis for seeking the death penalty on the murder charges in this case appears to be the felony murder rule, whereby a killing that occurs in the course of a dangerous felony, even an accidental death, can be charged as first-degree murder. If the three pirates at issue here were fleeing the scene when two other pirates killed the hostages, is the death penalty a just sentence?

This issue is further highlighted by a discrepancy in the way the US Attorney is charging the eleven pirates who pleaded guilty and the three for whom the death penalty is sought.  By accepting pleas for life imprisonment for the former, the US Attorney has indicated that the death penalty is not forcibly necessary to serve the interests of justice in this case. It may be that there are facts that support a harsher sentence for the latter three. It may also be that the three refused to enter a plea agreement, so the US Attorney is wielding a stiffer penalty as leverage. But the question remains, is the death penalty an appropriate penalty for felony murder?

One final incongruity is the fact that the Prosecutor is not seeking the death penalty on the charge of piracy. From 1790, the crime of piracy pursuant to U.S. statutory law imposed a mandatory death penalty. The death penalty was replaced by “imprisonment at hard labor for life” in 1897, and then “imprisonment for life” in 1909. Therefore, the death penalty is no longer available for the crime of piracy under 18 U.S.C. 1651. The fact that Congress amended the statute to eliminate the death penalty indicates Congress’ view that the death penalty is not an appropriate punishment for piracy. If the principle crime at issue here is piracy, and Congress intended that no person be put to death for the crime of piracy, should that penalty still be available if the crime is charged as hostage taking or violence against maritime navigation resulting in death? Of course, a jury will have to decide whether the aggravating factors have been proven to justify a sentence of death.  But I really am curious as to what you all think on these issues.

Filed under Somalia, Worldwide Tagged with , ,

← Older posts

Newer posts →