What Does Piracy Have to Do with North Korea?

May 21, 2012 by 1 Comment

The reclusive authoritarian Democratic People’s Republic of Korea is once again back on the news headlines. Surprisingly, this time is not about the reactivation of its purported nuclear programme, or because of a new attempt to lift off a satellite/ballistic missile, or for some leaked information on the poor living conditions endured by its citizens. Media outlets are reporting on the possible hijack of 3 Chinese fishing vessels and the kidnap of their 29 crew members earlier this month. The vessels and all the captives were released today, following the intervention of the Chinese authorities. The incident has all the hallmarks of a piracy attack off the coast of Somalia or in West Africa. However, it occurred in the Yellow Sea, in an area between North Korea and China.

News reports are still contradictory and any in-depth analysis into this will necessarily depend on the real circumstances of the case. Notably, the incident has not been reported to the IMB Piracy Reporting Centre. In particular, it is not clear whether the incident took place in international waters. The identity of the assailants is also unclear. Some reports indicate that these were members of the North Korean military, while according to others Chinese mafia from the city of Dandong, on the North Korean border, might have been involved, possibly in cooperation with the North Korean military. Several news reports indicate that the vessels, originating from the city of Dalian, were accosted at sea by armed men and forced to sail to North Korea. The ship owners confirmed the capture of the vessels and their crew. According to the owners, the vessels were navigating within Chinese national waters. They also confirmed that the captors have asked for the payment of a ransom of nearly 190.000 US Dollars and have threatened to harm their captives if no payment was made.

If the assailants have no connection with state authorities, the main issue will be to determine whether the incident qualifies as piracy committed in the high seas rather than armed robbery within China’s territorial sea. However, whether the assailants are members of the North Korean military or not, the use of force and the request for a ransom renders them de facto pirates, because they appear to have acted in pursuit of private ends. If the available information is correct, their actions could also qualify as mutiny. In this regard, it is worth recalling that Article 102 UNCLOS encompasses acts of piracy committed by a government ship whose crew has mutinied.

Actions by the North Korea authorities have in the past drawn widespread international condemnation. However, it is difficult to envisage Pyongyang secretive rulers now embracing a state policy to terrorize fishermen in the Yellow Sea for ransom purposes, particularly when this has an impact on a longtime ally and regional military superpower as China. This latter routinely issues strong protests over fishing related disputes with Japanese, South Korean, Vietnamese or Philippine fishing vessels. China will likely take certain actions to prevent any further escalation of such attacks in the Yellow Sea, as it has done by policing Southeast Asia’s  Mekong river from drug smugglers and criminal cartels. However, doubts remain on whether the public outcry sparked by this incident will have an impact on its already strained relationship with North Korea.

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Mauritius Officially On Board to Prosecute as Other Options Dwindle

May 20, 2012 by Leave a comment

Beau Bassin Prison in Mauritius where pirate suspects may be detained

Reuters is reporting that Mauritius has inked a deal with the TFG, Somaliland and Puntland to start to transfer convicted pirates to Somali prisons, paving the way for prosecutions in Mauritius. This comes as the locations proposed for prosecution by the UN Secretary General have dwindled. In January, the UN Secretary General issued a report noting Somaliland and Puntland as suitable locations for the prosecution of pirates. It is becoming increasingly clear that these autonomous regions may have difficulty in laying the foundations necessary for fair trials in the foreseeable future. For example, last week a Somaliland military court abruptly sentenced 17 civilians to death the day after violent clashes in the northern city of Hargeisa, leading a UN special envoy to urge a retrial in which the fair trial rights of the Accused would be respected. Therefore, the focus will have to shift to the remaining states recommended by Secretary General (i.e. Kenya, Tanzania, Seychelles, and Mauritius). As one of only four states in the region deemed suitable for prosecutions, the Mauritius announcement is undoubtedly appreciated by the states patrolling high risk areas who are searching for states willing to prosecute pirates.

As to the trio of other states identified in the UNSG report, Kenya is moving forward with prosecutions in the High Court in Mombasa, despite a 2010 decision by Judge Ibrahim (now of the Kenyan Supreme Court) holding that Kenyan courts lack jurisdiction to try the crime of piracy. Judge Ibrahim’s decision is pending an appellate decision by the Kenyan Court of Appeal.  But in the interim, his decision is not binding authority on other judges of the High Court (although they are still free to follow Judge Ibrahim’s decision if they so choose). Seychelles continues to prosecute pirates but may periodically refuse suspects due to a lack of space in its prisons. Finally, last month it was reported that Tanzania had yet to sign a pirate-suspect transfer agreement with the EU, indicating that prosecutions in Tanzania will be limited to those captured by Tanzanian naval authorities for the time-being.

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ReCAAP and the Anti-Piracy Information-Sharing System in Asia

May 10, 2012 by 1 Comment

Furthering its current efforts to enhance international cooperation to tackle piracy, the United Kingdom recently became the 18th party to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, commonly referred to as ReCAAP.

Entered into force in September 2006, ReCAAP is the first regional agreement for the promotion and the enforcement of multilateral cooperation against piracy and armed robbery at sea in Asia. Among its original contracting parties are South and East Asian countries. Since its entry into force, ReCAAP is also open for accession by other countries. Like the U.K., other global shipping countries with an interest in Asian maritime economy, such as Norway and the Netherlands, are also parties. Pursuant to its Article 1, ReCAAP adopts the same definition of piracy set forth in UNCLOS as well as the IMO definition of armed robbery at sea. However, ReCAAP does not provide for enforcement powers beyond those already provided in UNCLOS. Many of the lessons learned from the implementation of ReCAAP were incorporated in the Djibouti Code of Conduct, which provides a framework for information sharing, training and capacity building in the Gulf of Aden.

Notably, ReCAAP established an Information Sharing Centre (ReCAAP ISC), which is now a recognized international organization, headquartered in Singapore. ReCAAP ISC’s main functions include facilitating communication and piracy-related information-sharing among the contracting parties as well as furthering capacity building with other organizations and the shipping industry to develop and improve anti-piracy measures. As part of its mandate, ReCAAP ISC produces periodic consolidated incident reports and alerts on piracy and armed robberies at sea in the Asia region. Incidents are classified under 4 different gravity levels, measuring violence and economic impact.

 Map of ReCAAP Consolidated Incident Report for January 2012

Once piracy hot-spots, the straits of Malacca and Singapore as well as the South-China Sea more recently registered a significant drop in piracy related incidents. Due to improved surveillance and security presence, reported incidents now mainly consist of armed robberies or petty thefts at ports and anchorages, particularly in Indonesia.

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Private Navies and Ships on Government Service

May 3, 2012 by Leave a comment

Blackwater’s failed venture – McArthur

Over the last few years, entrepreneurs and private insurers have floated a number of proposals for the creation of private security escorts (so-called “private navies”). These types of proposals address several pressing concerns. The international naval escorts, such as EUNAVFOR, provide protection to a limited number of ships. But waiting for a critical mass of ships to initiate a convoy at the entrance to the high-risk zone can be time-consuming and costly for shippers. Furthermore, international naval escorts can only provide an escort in the highest risk zones (e.g. the Gulf of Aden), leaving ships vulnerable to attack in other areas such as the vast Indian Ocean. Private security escorts promise to be available to individual ships throughout their journey in high-risk waters. Though the cost of such services could be significant, there is the promise of savings in insurance premiums.

In the past, the U.S. state department has expressed hightened concern with regard to private security escorts vis a vis private security guards on-board ships (the latter are now openly encouraged). What then governs the use of force by these private security escorts and under what circumstances is the use of force permissible pursuant to international law?  Three examples provide a useful backdrop to consider the legal issues. The answer, it turns out, will likely depend on whether private security escorts are “on government service” and whether in the circumstances of a particular encounter, they overstretch the concept of self-defence by engaging in pirate hunting.

Blackwater, the security contractor who ran into trouble in Iraq and Afghanistan, was one of the first companies to venture into the private security escort business. It purchased a retired naval vessel, the 183 foot McArthur and, in 2007, it offered its services as a counter-piracy escort vessel. Perhaps due to uncertainty regarding the legal issues, and Blackwater’s compromised reputation, it received no customers and soon left the counter-piracy business. Maybe it was just before its time as several additional ventures have been announced more recently.

In September 2010, it was reported that:

[A] leading London insurer is pushing ahead with radical proposals to create a private fleet of about 20 patrol boats crewed by armed guards to bolster the international military presence off the Somali coast. They would act as escorts and fast-response vessels for shipping passing through the Suez Canal and the Indian Ocean.

Jardine Lloyd Thompson Group (JLT), which insures 14 per cent of the world’s commercial shipping fleet, said the unprecedented “private navy” would work under the direct control of the military with clear rules of engagement valid under international law. Early discussions have also been held with the Ministry of Defence, the Department of Transport and the Foreign Office. (emphasis added).

This particular venture would place the private security escort “on government service.” Article 107 of UNCLOS provides that a pirate boat may be seized by “other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.” The idea here is the 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. However, the responsible government, in this case the U.K., would be taking a considerable risk in authorizing defensive as well as aggressive use of force.

Most recently, in November 2011, a company put forward a new proposal.

Convoy Escort Programme Ltd., backed by the marine insurance industry, will initially deploy seven former naval patrol boats, each with armed security teams of eight people on board, Angus Campbell, chief executive officer, said by phone from Swarland, England today. The bullet-proofed boats will charge about $30,000 per ship traveling in a convoy of around four vessels over three to four days, he said.

“We are going to be a deterrent,” Campbell said. “We are not in the business of looking for trouble but if anybody tries to attack a vessel we are escorting, our security teams will deploy force if they have to act in self defence.”

It was confirmed yesterday that this project has secured (paid subscription required) additional funding from private insurers and hopes to have boats on the water by the summer.

In contrast to the prior example, there is no indication that Convoy Escort Programme is being coordinated with regular naval forces. Therefore it is not “on government service.”  Although Article 107 of UNCLOS does not permit private security companies not on government service from engaging in pirate hunting, the general principle of self-defence, and defence of others, would justify protecting vessels from an on-going attack. Such conduct must be carefully circumscribed. The risk here is that private security personnel would, in the heat of battle, step outside of the orbit of “self-defence” and into the breach of pirate hunting.  For example, if personnel decide to chase down suspected pirate boats that have (1) not approached the vessel they are protecting or (2) approached the vessel and fled, the personnel may have overstepped what was strictly necessary to protect the vessel under attack. Furthermore, the absence of clear rules of engagement creates the real possibility of mistaken identity at sea. If these projects go ahead, pirates off the coast of Somalia will have to contend with more heavily-armed foes, but so will Somali and Yemeni fishermen who frequent these same waters.

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Somaliland’s New Anti-Piracy Law

April 30, 2012 by Leave a comment

The semi-autonomous region of Somaliland has become an increasingly important ally to shipping states in resolving the present quagmire in piracy prosecutions in the Gulf of Aden. In the buildup to t­­­he recent London Conference on Somalia, Somaliland passed legislation criminalizing piracy within its judicial system. It is based to a large degree on the UN Convention on the Law of the Sea definition of piracy with some important differences. The Anti-Piracy Law, together with legislation contemplating the transfer to Somaliland from other States of convicted offenders, were signed into law by Somaliland’s President last month. While not directly referring to piracy repression measures, the Prisoners Transfer Law already facilitated the transfer of several convicted Somali pirates from other countries in the Gulf of Aden region currently carrying out piracy prosecutions, particularly the Seychelles. The passing of both Laws signals Somaliland’s commitment to combat maritime piracy off its coast and elsewhere in the region in its growing engagement with the international community in a quest for international recognition. More importantly, the Laws fill a lacuna in Somalia’s out-of-date and politically-motivated legal framework, as applicable to Somaliland pursuant to Article 130(5) of its 2001 Constitution. The new Law is a case study in the potential hazards in partial implementation of UNCLOS terms.

Under the previous applicable legislation, particularly Somalia’s 1962 Penal Code, acts of piracy and armed robbery at sea where arguably punishable as armed robbery (Article 484), extortion (Article 485) and kidnapping (Article 486). Additional issues arose in connection with the applicable forms of participation to these crimes as well as the punishment of inchoate crimes. Recourse to the 1975 Kidnapping Law, adopted during the military dictatorship, was particularly problematic due to the possible unconstitutional breach of fundamental human rights by its provisions, which also included the jurisdiction over this crime by a special national security court. Finally, Articles 205-206 of the 1959 Somalia Maritime Code criminalize piracy and mutiny carried out by ship masters and crews. However, these articles do not provide sufficient legal basis to contrast the current pirates modus operandi in the Gulf of Aden, where pirates often operate off small and unregistered skiffs and without a formalized chain of command. An excellent analysis of the inadequacy of both Somalia and Somaliland previous anti-piracy legal framework can be found at Somaliland Law.com.

First and foremost, it has to be noted how the Anti-Piracy Law eliminates within its judicial system the customary law distinction between piracy and armed robbery at sea, defining any attack within Somaliland territorial waters as “piracy” (Article 2(1)(c)). The new Law also repels Articles 205-206 of the 1959 Maritime Code (Article 13, see also Article 9) and affirms the applicability of the 1962 Penal Code for matters not specifically dealt with within the Law (Article 14), for instance with regard to forms of participation in the commission of the crime. More importantly, the Law introduces a term of imprisonment of 5 to 20 years (Article 4) without the possibility of conversion of a sentence into a fine (Article 10). In the case of murder, the provisions of Article 434 of the Penal Code, which provides for the death penalty, will apply. In addition, the Law has expanded the definition of piracy set forth in UNCLOS by adding two forms of participation: ‘willful participation’ and ‘aiding’ piracy.

Article 2: Definitions

A. An act of Piracy means:

1. Any illegal act of violence or detention or depredation committed by the crew or the passengers of a private ship or a private aircraft or by armed pirates for the purposes of illegal financial gain and directed:

a) on the high seas, against a ship or aircraft, or against persons or property on board such a ship or aircraft;

b) against a ship, an aircraft, a person or property on board a ship or an aircraft in a place outside the jurisdiction of any state;

c) against a ship, an aircraft, a person or property on board a ship or an aircraft within the territorial waters of the Republic of Somaliland.

2. Any act of willful participation in an act directed knowingly as a pirate’s attack against a private ship or private aircraft.

3. Any act which incites or facilitates or aids piracy as defined in Clauses 1 and 2 of this Article.

4. Similarly, any act of piracy directed at or by a warship or military aircraft or a government ship or aircraft whose crew takes over its control by means of a mutiny and commits acts of piracy as defined in (this) Article 2 of this Law.

B. Ship means any sea vessel including ship, boat, speed boat, launch, canoe or any other sea vessels which are used for acts of piracy.

Law on Combating Piracy – LAW NO. 52/2012

(Unofficial Translation – Courtesy http://www.somalilandlaw.com)

Definitions of Piracy

Article 2 of the Anti-Piracy Law reproduced in extenso above mirrors the provisions of Article 101 of UNCLOS, with the exception of some small but notable differences. Article 2(1) expressly refers to actions of “armed pirates”. Article 6(1) only briefly expands on this notion, identifying pirates as “persons who intend to commit the acts of piracy referred to in Article 2”. Article 2(1) also identifies “illegal financial gains” as the purpose of the acts of piracy thus providing a narrower, though more precise, definition than the customary “private ends” requirement contained in UNCLOS.

Article 2(2) is particularly interesting in that it removes the traditional direct link between acts of piracy and the use of a ship. Because of its wording and its location within the Law, Article 2(2) appears to replace Article 101(b) of UNCLOS which refers to “any act of voluntary participation in the operation of a ship”. Some authors have noted a possible lacuna in the punishment of direct perpetrators of acts of piracy created by the departure from Article 101(b) UNCLOS, which is also referred to as punishing “cruising with pirate intent”. This has prompted a call for an amendment to the Anti-Piracy Law to include this latter provision. However, it is also arguable that Article 2(2) is an entirely novel provision expanding the criminalization of piracy to encompass the responsibility of pirate kingpins and middle-men operating from dry land. Indeed, these types of  criminal conduct might not always fall under the provisions of Article 2(3) of the Law, as well as Article 101(c) UNCLOS, which criminalize inciting as well as internationally facilitating piracy.

Somaliland Territorial jurisdiction

Further to the comment above concerning the abandonment of the customary term of “armed robbery at sea”, pursuant to Article 5 of the Law, Somaliland Courts will have jurisdiction over any offence of piracy committed within Somaliland sea or in an area outside the territorial waters of any other country. In this regard, pursuant to Article 8, the Somaliland Coast Guard have the power to seize ships and to arrest and investigate suspected pirates.

Confiscation of Pirate Property

Article 11 of the Law provides for the confiscation of property seized from pirates. The main goal of this provision, also contemplated by the UNCLOS, is to drain off the resources of pirates’ cartels by removing their main revenues, including equipment and paid ransoms. However, further consideration has to be given to the  full extent of application of this rule, particularly with regard to ships seized by pirates and subsequently used in connection with pirate attacks, for instance as mother ships. The strict application of this norm risks further depriving, even if just temporarily, the legitimate ship owners of costly assets, as well as of their cargo, upon it and its crew being freed from captivity. Crucial in this regard will be the interpretation of Articles 6(2) and 7 of the Law which, respectively refers to the status and the ownership of a pirated ship.

Conclusions

The general thrust of the new Anti-Piracy Law is to adapt Somaliland’s legislation not only to the established international norms, particularly the relevant UNCLOS provisions, but also to provide an effective tool to respond to the modern features of pirates attacks, as well as armed robbery within Somaliland’s coastal waters. The Law identifies relevant criminal conduct and provides a clearer definition of pirate ships. However, an opportunity has been missed for the provision of a more direct definition of pirates. The Law also clearly targets the financing and other actions in support of piracy (see also Article 3(4)). Yet, the Law risks paying too much tribute to the current factual circumstances of the pirates attacks taking place in the Gulf of Aden, departing from a more abstract legislative framework. In several instances, Somali-based pirates have already shown a peculiar capacity to adapt their modus operandi, as well as their targets, as the international community struggles to devise efficient deterrent measures, whether involving increased naval presence in the Gulf of Aden or the harmonization of national anti-piracy laws. With the implementation of the Somaliland Anti-Piracy Law we will soon have a chance to assess whether this criminal trend will continue evolving or whether the legislation managed to fill a long overdue legal gap. It also remains to be seen whether there will be continued political will in Somaliland, and support from the international community, to put this Law into action. Of particular interest will be whether Somaliland will take the responsibility to prosecute suspected pirates even if they are native to other regions within Somalia, particularly from Puntland.

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