Terrorism as a Defence to Piracy (a definitional problem)

January 30, 2011 by Leave a comment

Last August, in U.S. v. Said, a federal court dismissed the most serious count of piracy, ruling mere attempts at piracy were not proscribed by the provision in question. The defendants in that case had approached the USS Ashland 300 miles off the coast of Djibouti, mistaking it for a commercial ship, and one of the defendants had fired a shot. They made no attempt to board the ship and their skiff was shot out of the water. Judge Jackson held that even if the facts were proved, this “attempt” did not amount to piracy. There has been considerable discussion of the memorandum decision here, here and here.  Most of the criticism centers on the Court’s limited reading of 18 U.S.C. 1651 which provides, “[w]hosoever, on the high seas, commits the crime of piracy as defined by the law of nations and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Judge Jackson relied upon the U.S. Supreme Court decision of United States v. Smith, 18 U.S. 153 (1820) which defined piracy as robbery at sea. Many critics have noted the 1958 Convention on the High Seas (ratified by the U.S.) and the UNCLOS (not ratified by the U.S.), define Piracy to be inclusive of “attempt,” and that these Conventions constitute customary international law.  Because 18 U.S.C.1651 adopts the Law of Nation’s definition of piracy, the Court should have given more weight to the definition within these Conventions.

The definitional problem examined in U.S. v. Said is indicative of the challenges faced by States attempting to prosecute Somali pirates. Piracy laws are often antiquated or sometimes do not exist at all.  Even where a State has clear penal legislation proscribing acts of piracy and has adopted the UNCLOS definition, there are other potential hurdles.

The Old U.S. Supreme Court Chambers ca. 1820

UNCLOS article 101 defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends…” (emphasis added).  The plain language of this definition provides that the motive for piracy must be pecuniary.  What if a private ship attacks another in order to achieve a political, as opposed to, a commercial purpose?  Professor Isanga points out several examples of this phenomenon, including attacks in the Niger Delta in Nigeria, and the PLF attack of the M/S Achille Lauro.  Although Somali pirates are generally attacking ships for profit, they have on occasion expressed political motivations.  For example, Somali pirates threatened to kill any South Korean seamen they take hostage in revenge for the killing of eight pirates by South Korean troops.  Furthermore, the Somali parliament failed to adopt piracy legislation with some parliamentarians arguing the pirates were protecting their national waters from overfishing by foreign vessels.  The current definition of piracy under UNCLOS would not encompass crimes with these motivational bases. (See Professor Isanga’s article for a discussion of this and other definitional issues.)

Establishing the jurisdictional parameters of a special tribunal for piracy creates a unique problem in this regard.  If a special tribunal’s jurisdiction is limited to the crime of piracy as defined by UNCLOS, it would not be competent to try attacks at sea committed for political purposes.  In answering charges of piracy, a suspect might claim to have attacked a ship for political, as opposed to pecuniary purposes.  If believed, the manifestly unjust result would be an acquittal on a piracy charge based on a defence of terrorism.  As the special tribunal would not have jurisdiction to try the terrorism charge, the suspect would go free.  Of course, the suspect could be transferred to a court with competence to hear terrorism charges.  However, the efficiency of the special tribunal would be undermined.  Further, in a terrorism trial, the suspect might change tack and claim that he was in fact pursuing commercial interests in the attack.

To avoid this result, the international community could (1) expand the definition of piracy to include terrorism or (2) expand the jurisdiction of piracy tribunals to encompass terrorism charges.  Either alternative would confuse two quite distinct issues.  I recently spoke with an individual who provides private security to commercial ships against Somali pirates.  He claims that piracy is a business (albeit an illegal one).  Few hostages have been killed because it is unprofitable to do so.  He told me that if a pirate ship sees a commercial ship is guarded by armed security, it generally withdraws to look for an easier target.  In contrast, terrorism seeks to use violent means to achieve a political result.  Hostage situations involving terrorists are highly unpredictable and hostages are often killed.  Piracy seeks the most profitable outcome; Terrorism often seeks the most violent outcome.  Do the two crimes deserve similar treatment?  As individual States and the international community pursue piracy prosecutions in earnest, these definitional problems will have to be addressed.

NB: It is possible that a pirate would have dual motives, both pecuniary and political. In such cases, a “terrorism defence” would not negate the criminal intent for piracy.  Cf. Prosecutor v. Ntakirutimana, ICTR-96-10-A, Judgement (AC)(holding in the context of the crime of genocide, “it is immaterial, as a matter of law, whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons.”)

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Kenya: No Jurisdiction to Try Piracy?

January 27, 2011 by 2 Comments

One important factor which played into Jack Lang’s recommendation to create piracy courts in Puntland, Somaliland and Tanzania, was Kenya’s apparent unwillingness to take the entire problem upon itself.  Until last year, the international community was relying on Kenya to prosecute suspected pirates in Mombasa based upon bilateral agreements. However, in April 2010, Kenyan Foreign Minister Moses Wetangula told reporters, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” Subsequently, the Kenya High Court at Mombasa ruled that “the Local Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Therefore, it did not have jurisdiction to prosecute Piracy on the High Seas (which lies outside of a State’s territorial seas). The specifics of that case provide an interesting case study into a piracy prosecution as well as the perils in amending legislation. In re Mohamud Mohamed Hashi et. al.

The facts of the case provide some colorful background. Mohamud Mohamed Hashi and eight other persons were charged with being armed with three AK 47 Rifles, one pistol, one RPG – 7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle, attacking the MV COURIER vessel and at the time of such act put in fear the lives of the crew men of the said vessel. They were in a skiff like the one pictured in the header of this blog. They were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help of its helicopters and a U.S. helicopter assigned to the USS – Monterey, who “accosted” them in their small boat and arrested them. The Commander and/or officers of the German Naval Vessel, brought the men to Mombasa Kenya and placed them in the custody of the Kenyan police ten days after being captured in the Gulf of Aden.

The legal issue boiled down to two competing statutory provisions addressing the jurisdiction of the Magistrate to consider piracy charges. The first relevant section of the Kenyan Penal Code provided: “5. The jurisdiction of the Courts of Kenya for the purpose of this Code extends to every place within Kenya, including territorial waters.” Whereas, the second section considered by the High Court provided: “69. (1) any person who in territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of Piracy.”

The High Court held that these two sections were inconsistent because Section 5 of the Penal Code limited the Court’s jurisdiction to territorial waters and Section 69 expanded the Court’s jurisdiction to include the High Seas.  The High Court concluded that Section 5 was juridically paramount because “It is the defining provision with regard to jurisdiction of the Kenyan Courts in so far as the [Penal] Code is concerned.”  The limiting provision in Section 5 prevailed and, he concluded, “the whole process was therefore null and void, ab initio.  A nullity from the word go.”

What of universal jurisdiction you ask? Doesn’t it permit any State to prosecute any act of Piracy on the High Seas? Universal Jurisdiction permits a State to prosecute a suspect for piracy. However, the the substantive provisions must be supplied by that State’s penal code.  Jose Luis Jesus, the President of the International Tribunal for the Law of the Sea explains:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

In this case, the Kenya High Court appears to have determined that there were no substantive provisions of the Kenyan Penal Code which permitted it to prosecute the suspects. Although one might argue the court conflated the issues of jurisdiction and substantive penal law.

There also appeared to be a serious error in the manner of enacting the new piracy law. The High Court noted that during the prosecution of the defendants in this case, the statute under which they had been charged was repealed.  There was no sunset clause. In other words, when the Parliament repealed the old piracy law, it did not consider what would happen to persons who had already been arrested and charged under the old law.  Once the old law was repealed, defendants could not be convicted of an offence which ceased to exist. In addition, they could not be charged afresh with a violation of the new piracy statute for it would be an ex post facto violation. As nations in the region start the process of updating their piracy laws, this provides a cautionary tale.

The final kicker was the High Court decision to order the defendants released and request that the UNHCR repatriate them back to Somalia. The case in currently on appeal.

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Lockerbie in Arusha – Significant Challenges Remain

January 25, 2011 by Leave a comment

UPDATE: Lang actually recommended the creation of three courts: one in Puntland, one in Somaliland, and one in Arusha (to be moved to Mogadishu when conditions warrant). The Security Council members are generally in support of his recommendations, but you can discern some variations in their preferences by parsing the language of their statements. A number of questions come immediately to mind: (1) how will an arresting force determine to which of the three courts to send an arrested person? (2) Have Puntland and Somaliland delimited territorial waters where they would have exclusive jurisdiction? (3) Insofar as any nation may prosecute piracy on the High Seas, will the process of determining the proper venue be ad hoc or based upon formalized negotiations and agreements?

Jack Lang, UN Special Adviser on Piracy, has issued his report to the Secretary General.  News agencies are saying that he has recommended the creation of a Somali court sitting in another regional state (akin to the Lockerbie court).  There is some indication that Arusha, Tanzania is being considered as a seat for the Somali court due to the infrastructure already in place at the ICTR.  A number of serious challenges would need to be overcome to create such a court.

First, Somalia continues to be described as a monolithic entity, thereby necessitating a bilateral treaty between the regional State in which the court would be situated and Somali.  However, the United States policy has recently changed with regard to the heretofore unrecognized regions of Somaliland and Puntland. Assistant Secretary of State Johnnie Carson said at a briefing in September 2010:

We hope to be able to have more American diplomats and aid workers going into those countries [Somaliland and Puntland] on an ad hoc basis to meet with government officials to see how we can help them improve their capacity to provide services to their people, seeing whether there are development assistance projects that we can work with them on […] We think that both of these parts of Somalia have been zones of relative political and civil stability, and we think they will, in fact, be a bulwark against extremism and radicalism that might emerge from the South.

Carson said the United States will follow the African Union position and recognize only a single Somali state. However, with Somaliland and Puntland apparently offering to house convicted pirates within their territories, and other States increasingly recognizing their practical autonomy, it begs the question of whether or not an agreement to create a Somali court would require the assent of the Somaliland and Puntland governments. It would seem that a prerequisite to these regions signing an international treaty would be recognition of their Statehood.

The 26 July 2010 Report to the Security Council set forth several additional challenges with regard to the option put forward by Lang.  These include:(1) the considerable assistance that the UN will need to extend to the court; (2) the amount of time necessary for the court to commence functioning could be significant; and (3) the inadequacy of Somalia’s piracy laws and the capacity of Somalia’s judicial system.  In particular, the report noted:

Although there is some judicial capacity in Somalia and among the Somali diaspora, the challenge of establishing a Somali court meeting international standards in a third State would be considerable at present. Further, any advantages that such a court may enjoy would be outweighed if it were to draw limited judicial resources from Somalia’s courts.

One final point that should not be lost amidst the excitement is the mundane, but essential task of determining where Somalis who are eventually convicted of piracy, in the yet to be created court, will serve their sentences. Apparently, Lang has recommended the construction of one prison each in Somaliland and Puntland.  To which, Bronwyn Bruton, an author of reports on Somalia for the New York-based Council on Foreign Relations, reportedly said:

The idea that they’re [pirates] going to be scared off by prisons that meet UN human rights standards is wholly unrealistic. In these jails, they will have food, protection from violence and probably some basic literacy training. For these guys, it’s going to sound like a holiday camp.

Indeed the prospect of serving time in these prisons may not create a serious deterrent to piracy.  However, during the 8 or 20 years in which a pirate might serve a sentence, he will not be capable of committing further acts of piracy.  Furthermore, rehabilitation is a real possibility if stability can be maintained, jobs created, and inmates trained.  Any sustainable solution should take into account the possibilities for a newly released pirate.  If it does not, there is nothing to stop a jobless, ex-convict from continuing to seek bounty on the high seas.

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Duress as a Defence to Piracy

January 24, 2011 by Leave a comment

I am fascinated by the parallels between past eras of piracy and the current resurgence in Somalia. In a law review article last year, Peter Leeson notes that during the 18th century, Caribbean pirates cleverly avoided conviction by the British based on a defence of “impressment.” As Leeson puts it:

Voluntary complicity with a pirate crew was important to establishing guilt. Pirates exploited this loophole by pretending to conscript seamen who joined their ranks voluntarily. Since pirates did genuinely compel some seamen to join their companies, court officials considered the impressment defense plausible.

In order to buttress the conscription defense, pirates needed some kind of corroboration.

conscripts, real and pretend, asked their captured fellow sailors, who the pirates released, to advertise their impressment in popular London or New England newspapers. If authorities ever captured the pirates the “conscripts” sailed with, “conscripts” could use the newspaper ads verifying their forced status as evidence in their defense.

An “impressment” or “conscription” defense is akin to a modern defence of duress, providing a justification or excuse because of the involuntary nature of the conduct. In the U.S., the defence must be proven by the defendant by a preponderance of the evidence. Therefore, the defendant must put forward some affirmative evidence that he was forced to perform the criminal act.

Last November, in “the first piracy case to be tried in a U.S. court since the Civil War,” the defendants initially asserted that they were merely fishermen.  In rebuttal, the prosecutor said, the defense amounted to: “We didn’t do it, but if you think we did it, someone made us do it.”

There is undoubtedly some truth to the claim that they were “forced” into piracy. The coastline of Somalia is 3,898 kilometres long. About 55 per cent of its population lives along this coastline many of whom depended upon fishing for their livelihood. In this regard, a 2006 UN Environment Program report noted:

a large number of foreign vessels illegally fishing in Somali waters and serious pollution caused by vessels discharging toxic waste. Heavily armed foreign boats have often tried to exploit the breakdown of law and order in Somalia since the overthrow of President Mohammed Siad Barre in 1991 by fishing in the rich Somali waters, thus depriving coastal communities of resources.

Other support for this appears here. However, others argue that this is just a cheap excuse for those who voluntarily chose piracy. Regardless of its merits, suspected Somali pirates have already taken a page from another era.  Now, where to publish that ad?

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Piracy Report Tomorrow

January 23, 2011 by Leave a comment

Jack Lang, the Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, is due to issue his report tomorrow.  Lang was appointed by the Secretary General last August to:

identify any additional steps that can be taken to assist States in the region, as well as other States, to prosecute and imprison persons who engage in piracy; and explore the willingness of States in the region to serve as potential host for any of the options for potential new judicial mechanisms set out in the report of the Secretary-General.

The 26 July 2010 Secretary General’s Report set out 7 options to prosecute and imprison suspected acts of piracy off the coast of Somalia, including creating a special domestic chambers with international components, a regional tribunal or an international tribunal. [For further discussion, see the report: Suppressing Maritime Piracy -Exploring the Options in International Law.]

One of the options discussed by the Report, and which has been favored as a practical matter until present, has been to provide financial support to States within the region to prosecute suspected pirates in their national courts invoking universal jurisdiction. In this regard, the UN Office for Drugs and Crime and other donors have provided $5 million to refurbish the Shimo La Tewa court and prison in Mombasa where the suspects were being tried by Kenyan prosecutors.  The Seychelles has also started prosecuting pirates in its national courts with some assistance from the UN. Despite these efforts, Jack Lang, says that 9 out of every 10 pirates captured by marines are freed. Furthermore, in November 2010, the Kenyan High Court held that the Kenyan penal code does not give Kenyan courts jurisdiction over piracy on international waters, rendering in doubt any convictions obtained to date and casting a shadow on further efforts to prosecute suspected pirates in Kenyan courts.

The question now is what measures Jack Lang will propose. He hopes for a Security Council Resolution within three to four weeks.

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