Piracy Conviction Sets Stage for 4th Circuit Appeal

April 28, 2012 by 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.

Filed under Somalia Tagged with ,

Will the United States Play a Role in Prosecuting Pirate “Kingpins”?

April 21, 2012 by Leave a comment

Somalia has no trouble producing pirates. Between a central government that controls little beyond the capitol city of Mogadishu, an utter lack of economic opportunity for young men, and a 3,025 mile long coastline with access to the world’s busiest shipping corridors, for every Somali pirate captured at sea, there are many more waiting to take his place. Accordingly, one of the most promising means to put an end to this global menace is the prosecution and detention of the financiers of pirate action groups – those benefitting most from lawlessness in the Indian Ocean but never actually setting foot on a boat.

The Eastern District of Virginia and the Fourth Circuit Court of Appeals are in the process of hearing two separate cases that, taken together, could decide whether or not the United States of America will have any role in the prosecution of these so-called “kingpins” of piracy.

One case, United States v. Shibin, is just beginning the trial phase and is the United States first attempt to prosecute a high level facilitator of piracy. The case concerns Mohammad Saaili Shibin’s role in the hijackings of the M/V Marida Marguerite and the S/V Quest. In both attacks, Shibin’s role was that of translator and hostage negotiator. Shibin was paid between $30,000 and $50,000 for his role in the M/V Marida Marguerite attack but was paid nothing in for his role in the S/V Quest, as all hostages were killed before a ransom could be negotiated. Shibin confessed to his role in both hijackings to American authorities.

Mohammad Saaili Shibin – AP Photo

At issue is, inter alia, whether Shibin can be charged with Piracy under 18 U.S.C. § 1651, which outlaws “piracy as defined by the law of nations” and carries with it a mandatory life sentence.

Because Judge Robert G. Doumar denied the defendant’s motion to suppress his confessions, it will be difficult for Mr. Shibin to argue that he did not participate in the hijackings in the manner alleged. Instead, his case will rise and fall on the way the Fourth Circuit settles a split on the legal question of whether “piracy as defined by the law of nations” is an evolving or a static concept.

This legal question comes to the Fourth Circuit in the context of a split within the Eastern District of Virginia on two cases with essentially the same set of facts. In both United States v. Said and United States v. Hasan, the defendants set out to plunder a merchant vessel and fired upon what they believed to be such a vessel. In both cases, the would-be pirates were actually firing upon a United States Naval vessel.

In Said, the trial court held that § 1651 should be interpreted in light of the nineteenth century definition of piracy, which included only “robbery at sea.” Because the defendants in Said only fired upon a ship and never actually stole anything, their acts did not rise to the level of piracy.

The Hasan trial court, on the other hand, found that “the ‘law of nations’ connotes a changing body of law,” and that Congress meant to keep pace with those changes as they relate to maritime piracy when they drafted § 1651. The court went on to find that the contemporary definition of general piracy under customary international law is embodied in the High Seas Convention and UNCLOS,[1] both of which define piracy as:

(A) (1) any illegal act of violence or detention, or any act of depredation; (2) committed for private ends; (3) on the high seas or a place outside the jurisdiction of any state; (4) by the crew or the passengers of a private ship or a private aircraft; (5) and directed against another ship or aircraft, or against persons or property on board such ship or aircraft; or

(B) (1) any act of voluntary participation in the operation of a ship or an aircraft; (2) with knowledge of the facts making it a pirate ship; or

(C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B).

The cases of United States v. Shibin and United States v. Hasan are therefore inexorably tied to one another. If the Fourth Circuit overrules the Hasan trial court and holds that, for the purposes of § 1651, piracy only includes armed robbery at sea, none of the defendants in Hasan, Said, and Shibin are guilty of a crime under that statute. If it affirms the Hasan trial court’s holding that that the definition of piracy under the law of nations has expanded to include the definition embodied in UNCLOS and the High Seas Convention the result will almost certainly be the opposite. The defendants in Hasan and Said would be guilty of piracy resulting from acts of violence on the high seas, and Mohammad Saaili Shibin would be guilty of intentionally facilitating piracy. Though Shibin, as a translator and hostage negotiator, would be considered a mid-level pirate at best, the same legal reasoning that applies to him will apply to higher level facilitators who “incit[e] or . . . intentionally facilitat[e]” piracy but do not themselves commit robbery at sea.

An interpretation of § 1651 as embodying an evolving definition of piracy would make the United States an excellent venue to prosecute the financiers and facilitators of piracy, as the level of due process afforded to the defendants would be unassailable and the mandatory life sentence imposed by § 1651 would be a strong deterrent. Prosecuting these “kingpins” is, apart from solving Somalia’s broader governance problems, the surest way to put an end to maritime piracy in the Indian Ocean and Arabian Seas. Hopefully the American judicial system can adapt to this modern realities of maritime piracy.

[1] Actually, this conceptualization of piracy was first announced in a 1932 study on the international law of piracy conducted by Harvard University and later incorporated into the Law of the Sea Treaty in 1958 and reproduced in UNCLOS in 1982.

Filed under Somalia, Worldwide Tagged with , ,

Privately Contracted Armed Security Personnel and Counter-Piracy: Is France at a turning point?

April 17, 2012 by 2 Comments

A guest post by Valerie Gabard. Valerie is a French national with notable experience in both French and International Law. Previously, she was a legal officer at the Extraordinary Chambers in the Courts of Cambodia. She is currently a legal officer at the International Criminal Tribunal for the Former Yugoslavia. Valerie is also a regular contributor to the Bulletin of the French Society for International Law.

The number of recent blog posts on the issue of Privately Contracted Armed Security Personnel (PCASP) undeniably shows the growing role of PCASP as a piracy deterrent. As mentioned in an earlier post, the United States strongly supports the use of PCASP as an efficient means of containing piracy. In Europe, there is no harmonized position either at the European Union level, or among the individual States. As opposed to Great Britain, France has repeatedly expressed reluctance to rely on PCASP to protect French vessels against pirates’ attacks. So far, the French response has been limited to the on board deployment of Vessel Protection Detachments (VPDs) composed of professional soldiers. Until very recently the organization of French ship-owners (les armateurs de France) showed the same lack of enthusiasm with respect to the use of PCASP. Nevertheless, the deployment of VPDs appears insufficient to ensure the security of all French vessels traveling through the Gulf of Aden. As a result, French ship-owners recently changed their standpoint and began supporting the use of PCASP. This development may lead the French government to review its current position on the matter.

In late February 2012 a statement from the organization of French ship-owners noted the limits of the VPDs in protecting crew members and the urgent need for alternative solutions. They expressed strong support for a report filed by two members of the French National Assembly. The report underlines the need to reform French Law in order to allow the use of private security companies and to create a proper legal framework for their activities. According to its authors, the report aims to end a French taboo that traditionally associates private security with mercenary activities. The report underlines that the use of private security actors is a phenomenon that cannot be ignored at the international level, especially in the field of piracy, and that private security services have a potential worldwide market value of up to 200 billion USD a year. It further suggests that France should legislate to create a proper legal framework that would ensure transparency and address the responsibility of private security firms in contrast with the current legal limbo. Noting that there is a real and immediate need for private security on board French vessels, the report proposes that counter-piracy could be an area in which the use of PCASP can be tested with a view to possible broader application in the future. It also points to the increasing role of PCASP in the fight against piracy and the fact that French ship-owners may turn to British firms for protection if France does not react adequately. The report notes that although the number of French private security firms is still very low (around 10 to 15), there are important business opportunities in this field. The report is not naïve as it underlines the economic implications behind authorizing private security actors to counter piracy. It implies that France’s position against PCASP is untenable at the international level. With or without France, the number and scope of PCASP will increase in the fight against piracy. It is now up to France to decide whether to create a proper legal framework and be part of it or be left behind. The economic pressure represented by French ship-owners may force the French authorities to review their present position on the matter. While there is still no official position it is clear that France is now at a turning point and that there is an urgent need to take decisions on the matter. With the presidential elections looming, it is nevertheless not expected that an official position will be taken before the summer, at very least.

The debate around PCASP in France does not impact or call into question the current French military involvement inthe fight against piracy. This remains the main tool of the French counter-piracy policy and France recently reaffirmed the importance it attaches to a military deterrrent in the Gulf of Aden. Indeed, since April 2012 France assumed command of European Union Naval Force (EU NAVFOR) Atlanta counter-piracy mission off the coast of Somalia. This is the second time that France has held command of the EU NAVFOR Task Force. It is also worth noting that the Council of the European Union has extended the mandate of the EU NAVFOR until December 2014 and has increased the area of operations to include Somali coastal territory and its internal waters.

Filed under Somalia, Worldwide Tagged with , ,

Use of Private Guards and VPDs Remains Controversial

April 9, 2012 by 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.

Filed under Somalia Tagged with ,

A Broader Trend of Engagement for China? On China’s Vote in Favour of an International Piracy Tribunal

April 3, 2012 by Leave a comment


It is fair to observe that China has generally disassociated itself with the flow of the international criminal justice. Voting against the Rome Statute in 1998 has best elaborated its stand on this issue. An “overly active” global court is perceived to have the potential to jeopardize state sovereignty, the cornerstone of the Five Principles of Peaceful Co-Existence China has consistently adhered to in its engagement of international affairs. A survey of China’s involvement with all the other UN-backed tribunals further confirms the above observation. Apart from Chinese judges, I am aware of only two senior staff to work in UN international tribunals. China is rarely interested in the work of these tribunals. Starting with low expectations, commentators were amazed, if not at all surprised, by China’s vote in favour of an international tribunal to prosecute piracy. In his speech at the UNSC debate, Chinese Ambassador Wang said his country would be in favour of the option of prosecution in Tanzania in an international court. To what extent is this an indicator of China’s broader trend of engagement with international criminal justice?

Observers arguing in favour of this proposition would suggest this happens in a wave of change in China’s view on international tribunals. In particular, China (the People’s Republic of China only took back the seat in the United Nations in 1971) for the first time appeared before the International Court of Justice in its proceedings in the Kosovo Advisory Opinion. China’s participation in this case is full-fledged, by both submitting written submissions as well as participating in the oral arguments. Lead by Ministry of Foreign Affair’s Legal Adviser, Ambassador Xue Hanqin (who later become a Judge at ICJ), the strength of the team is also unprecedented. As the words of Ambassador Xue plainly put:

[although] this is the first time for the People’s Republic of China to participate in the proceedings of the Court, the Chinese Government has always held great respect for the authority and importance of the Court in the field of international law.

If it is true that China has always paid tribute to the work of the ICJ, why is it only in 2009 that China first joined in its proceedings? One of the reasons is the nature of this case. It concerns the competing interests of the sovereign territorial integrity of a state and a minority group’s wish for independence under the principle of self-declaration. One may find it very easy to relate the situation to those China has been facing with regard to Taiwan, Tibet and Xinjiang. All of these regions are legally and constitutionally part of China and recognized as such by the overall majority of international community. Yet each of them has been through different degrees of secessionist movements, in particular Taiwan, which arguably has been enjoying a de facto independent status. Beijing has unequivocally submitted these territorial integrity issues as the core interests of China. To resolve these issues in favour of China has always been one of the foremost tasks of Chinese diplomats like Ambassador Xue and her team. Fortunately enough for us in favour of the proper functioning of international law, she has successfully persuaded the country and its rulers to endorse her endeavour at the International Court of Justice.

Those who are sceptical of the above proposition might suggest that this is also true for the case of international prosecution of piracy: enormous Chinese interests are at stake. Chinese vessels are not immune to piracy. In a wave of pirate attacks in 2008, a Hong Kong vessel was seized in September 2008. Later another attempted siege was launched on a Chinese fishery boat in December 2008 and was fortunately defeated by “friendly countries’ force”. At the end of that year, China decided to send its own battle vessels to the area, a practice lasting until today. Nevertheless, Chinese vessels continue to be harassed by pirates. For example, the Chinese vessel “De Xin Hai” was seized in October 2009. After arduous negotiations, Beijing was forced to pay a large ransom. China’s efforts have also extended to transnational crime along international rivers, more particular the Mekong. China has prominently displayed its naval force in response to recent deadly attacks along the river. In conclusion, a lesson has been learnt in Beijing: there must be an orchestrated effort in this regard, probably including the international prosecution of crimes.

Having highlighted the special situation of these two cases, the question to be answered is will these be the only isolated incidents? I would refute that argument. Simply stated, for a country as significant as China with national interests interspersed throughout the globe, these examples tend to exhibit a general pattern rather than isolated incidents. No Chinese would have imagined China being so much involved in piracy off the coast of an East African country. Yet here we are.  As Chinese have frequently said, there is always a direct cause and a fundamental cause for an event. Applying this formulation to the trend of engagement with international criminal justice, the tangible Chinese interests at stake are the direct cause whilst the fundamental cause is the rising awareness of the value of international law, the functioning of the international courts and at its remote back the growing role of China in the global affairs.

A further extension of this principle to the International Criminal Court is still far off and the road to Rome will not be easy. After Ambassador Xue’s team headed back to China, challenges to this endeavour appeared. Critics believe if the sovereign integrity argument was refused by the International Court of Justice, the legitimacy of this consistently adhered-to position will be undermined. This was later proved to be not at all pessimistic. After all, China has much to learn in defending its national interest through the international justice system. Yet the signal is clear, China is getting on board!

Filed under International Rivers, Somalia, Worldwide Tagged with , , ,

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