Language, Capacity Issues Plague Indian Prosecutions of Somali Pirates

Suspects aboard the pirate ship the INS Taba on their way to Mumbai after being arrested by the Indian navy in March 2011. Photograph: Indian navy/EPA

The trial of about 120 Somalis in India is encountering significant obstacles, including difficulty finding qualified Somali-speaking interpreters, procuring deposition evidence from victims, and dealing with the sheer volume of cases on backlog. India’s navy has been very active in helping to patrol the seas off the coast of Somalia. It also recently used its turn as President of the Security Council to put the fight against worldwide piracy at center stage. Perhaps because of its pro-active approach, India has taken into custody a large number of suspected pirates. As we have seen in any number of western countries taking up piracy prosecutions, there are substantial challenges that come with prosecuting Somalis in a transnational setting. This is not to mention the legal obstacles faced by countries attempting to revive centuries old laws to address the resurgence of this type of criminality. As we surveyed in 2011, India’s legal framework for piracy required updating. Video-link testimony and interpretation, in addition to, a more active foreign office might assist the prosecutions in these cases.  Of course, all of these solutions require resources and technological capacity. This is true whether prosecutions move forward in the Netherlands, the U.S. or in India.

Upcoming Event: “Counter Piracy – Rules for the Use of Force” Conference in London, UK

The international conference “Counter Piracy – Rules for the Use of Force” will take place in London, UK on 8 February 2013. The event aims to bring together various stakeholders in the anti-piracy field, including maritime lawyers, flag States, ship-owners and shipping  associations, insurance companies and P&I Clubs as well as maritime security companies and other interested parties. The main topic of discussion will be the legal framework relevant to the use of force by privately contracted security personnel in the maritime industry, particularly the status of the so called “100 Series Rules”.

The 100 Series Rules, developed by David Hammond, aim to be an international model standard and example benchmark of best practice for the use of force in the maritime and anti-piracy field for application by privately contracted armed security personnel and private maritime security companies. Further details about the 100 Series Rules can be found at www.100seriesrules.com.

SCOTUS Denies Hearing of Piracy Cases

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

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

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

 

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

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

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

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

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

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

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

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

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

The Report of the International Piracy Ransoms Task Force is Available

The International Piracy  Ransoms Task Force, established at the London Conference on Somalia, issued its final Report on December 2012. The objective of the Task Force, composed of representatives of 14 States, was “to develop a greater understanding of the payment of ransoms in cases of piracy, in order to put forward policy recommendations to the international community as to how to avoid, reduce or prevent the payment of ransoms. The ultimate goal of this effort is to reach a point where pirates are no longer able to profit from ransom payments and thus abandon the practice of kidnapping for ransom.”

The conclusions and recommendations of the Task Force, included in the Report, build upon the following main options to reduce and avoid the risk of ransom payments to pirates:

  • strengthen the co-ordination between Flag States, the private sector and military responders to prepare for potential hostage situations, in order to shorten the decision-making process during the narrow window of opportunity for intervention after a piracy incident;
  • develop a new strategic partnership between Flag States, the private sector and law enforcement agencies that brings together those tackling piracy and those subjected to it in a united effort to break the piracy business model. In particular, this partnership should develop a more co-ordinated approach to information-sharing which would greatly enhance the quality and quantity of information exchange both to reduce ransom payments and to provide evidence to pursue and prosecute all involved in piracy, from those directly attacking ships to the kingpins who direct this organised crime;
  • encourage the implementation of anti-piracy measures, including still greater compliance with industry Best Management Practice, under the leadership of flag states and supported by the private sector, including insurance companies, in whose interests it is to mitigate risks.

Among the main practical recommendations put forward in the Report are the consolidation of various regional information-sharing frameworks to achieve a “one stop shop” mechanism for the diffusion of relevant information in the immediate post-hijack phase; the conduct of ransom negotiations with the knowledge of relevant national and international authorities in order to foster mutual assistance between these and the private sector; and the development of a mechanism maximising the evidence-gathering process immediately after the release of the vessel or its crew for subsequent prosecutions.

In line with the Task Force’s objective, the 15 page-long Report focuses mainly on the establishment of broad policies to improve communication and coordination to prevent hostage and ransom situations in the future. Several of these policies have been already under discussion for long time and by a number of institutions involved in the fight against piracy. Hopefully, the issuing of the Report will provide for a swift implementation of these policies. Regrettably, the Report does not contain an analysis and more practical recommendations directly relevant to actual hostage-taking, vessels’ hijacks and, more particularly, ransom situations. Given the wealth of knowledge and the technical resources available to the Task Force and its member states, as well as other participants from the private sector, it would have been preferable to expand on the Task Force’s mandate to immediately initiate an information sharing and lesson-learned process relevant to these aspects of piracy ransoms.