Update: Mekong Pirates Sentenced to Death

Further to his earlier conviction for the murder of 13 chinese sailors on the Mekong River last year, notorious former druglord Naw Kham has been sentenced to death today by the Intermediate People’s Court of Kunming, in China’s Yunnan province. We blogged on the Mekong River murders here. The incident was one of the deadliest assaults on Chinese nationals overseas and prompted unprecedented joint boat patrols along the river.

Naw Kham Upon His Transfer from Laos to China for Trial in May this Year – Asian Correspondent

Three of Naw Kham’s gang members were also sentenced to death, another received a  suspended death sentence while one was sentenced to eight years in prison, respectively. They had all pleaded guilty on a 3-day long trial in September this year. We previously blogged about the Mekong Trial here. The defendants were also ordered  to pay compensations to the victims families. They all said they will appeal the verdict.


The Mekong Pirates on Trial

For 3 days at the end of last week, the Intermediate People’s Court in Kunming, the capital of the Yunnan Province in southwest China, was the stage for yet another high profile, yet swift, criminal trial. The case involved the mysterious murder of 13 Chinese sailors on the Golden Triangle’s area of the Mekong River in October last year. We have blogged about the incident here, focusing in particular on China’s unprecedented role in strengthening law enforcement in the strategic Mekong River basin. Since the murders, Laos, Vietnam, Myanmar and even Thailand joined China in holding several military patrols across the lawless boundary waters.

The Mekong River Trial in Session at the Intermediary People’s Court in Kunming

The murders, one the deadliest assault on Chinese nationals oversea, sparked a large public outcry in China. It therefore comes as little surprise that the trial attracted much attention from the Chinese press. Among the 6 defendants was Naw Kham (aka Nor Kham aka Jai Norkham),a member of Myanmar’s Shan ethnic minority and a notorious once-untouchable drug lord and gang leader who for years is thought to have ruthlessly run the drug and other illicit trade in the Golden Triangle area. Naw Kham was arrested in April in Laos in another joint military sting operation and traded over to China shortly thereafter. Prior to his arrest, only two blurred pictures of Naw Kham were said to exist.

Naw Kham is Extradited to Beijing amid Tight Security – Xinhua

Much of the news regarding the investigation and trial is limited to Chinese media, with only a few outlets providing reporting in the English language. The holding of the trial has been hailed as another example, further to the joint river patrols, of China’s growing concern over cross-border security issues and its novel policy of regional cooperation in combating international crimes. Indeed, it is unlikely that the arrest and trial of the alleged perpetrators could have taken place in such a swift manner without China’s involvement. As discussed in another previous post, most notably this policy included China’s unprecedented participation in the international anti-piracy patrols off the coast of Somalia and in the larger Gulf of Aden area. Chinese media praised the trial as a model of judicial cooperation, coupling armed drug trafficking gangs on the Mekong and Somali pirates as “common enemies of mankind” and calling for their prosecution as a duty of all States. This is a remarkable development in the debate over the universal nature of piracy prosecution but also, leaving piracy aside, in the more controversial debate over modern China’s sovereignty and its role in large-scale international cooperation. However, China’s sudden primary stance in the Mekong murders also seems to be a show of strength in view of other disputes concerning the economic development in the Mekong River basin as well as in other areas of economic interest in Asia.

After allegedly confessing his role in the Mekong River murders upon his arrest and recanting it in a recent interview, the media reports that Naw Kham partially admitted knowledge of the murders at the beginning of the short trial, which then concluded with his full admission of guilt and plea for leniency. All other defendants, members of Naw Kham’s gang, promptly confessed their responsibility upon the opening of the trial. They were all accused of murder, drug trafficking, kidnapping and hijacking and now face the possibility of the death penalty. During the trial, simultaneous interpretation was provided in Laotian and Thai to accommodate the testimony of foreign policemen and witnesses from Laos and Thailand. Such testimonies are apparently unprecedented in Chinese judicial proceedings. China asserted jurisdiction over the case upon its direct links with the crimes and the victims as well as within the general framework of regional cooperation within the Mekong River. Chinese media also praised the trial as a demonstration of the efficiency of Chinese judiciary to the rest of the world. From an international justice perspective, however, doubts still remain as to the procedural fairness and completeness of such fast-paced trials whose outcome increasingly relies on the defendant confession. Interestingly, the arrest and trial of Naw Kham seems to have fallen under Interpol’s radar, as at the time of writing Naw Kham still remains on its Most Wanted Fugitive List.

Naw Kham Arrives in Court Blindfolded – Not a Common Procedure Everywhere – Xinhua

According to the prosecution, the Chinese boat refused to pay protection money for safe-passage in Naw Kham controlled areas and the murders were framed as a drug related incident to set an example. Several aspects of the murders, however, remain unclear. In particular, one possibly relevant factual element of the case appears to have been given limited consideration, namely the alleged participation in the murders of 9 members of the Thai military, part of an army unit responsible for security along the Mekong. Initial investigations by Chinese authorities already revealed a role played by a group of Thai military. It is still unclear whether they acted in collusion with Naw Kham’s gang. Investigation by Thai authorities, who are currently holding the soldiers as suspects, appear to show conclusive and corroborative evidence of the Thai soldiers shooting at the Chinese boats once they crossed over into Thailand.

U.S., Iran and China target pirate financiers and Kingpins

Rescued Chinese crew aboard cargo ship Xianghuamen wave to a welcoming Chinese delegation near Bandar Abbas, Iran, April 7, 2012. One of Somalia’s most wanted pirates was captured after Iranian commandos rescued the hijacked ship. PHOTO | XINHUA |

In May, Thomas P. Kelly, Principal Deputy Assistant Secretary of State gave a lengthy speech to the American Petroleum Institute outlining the U.S. strategy to address piracy. The approach includes the following:

  • diplomatic engagement to spur collective international action;
  • expanding security at sea through the use of naval assets to defend private vessels and to disrupt pirate attacks;
  • preventing attacks by encouraging industry to take steps to protect itself;
  • deterring piracy through effective legal prosecution and incarceration; and
  • disrupting the piracy enterprise ashore, including the financial flows that make it possible.

Of particular interest to the prosecution of pirate leaders and organizers was the following:

After an intensive review of our strategy last year, Secretary Clinton approved a series of recommendations which constitute a new strategic approach. A focus on pirate networks is now at the heart of our strategy. We are using all of the tools at our disposal in order to disrupt pirate networks and their financial flows. We are focused on identifying and apprehending the criminal conspirators who lead, manage, and finance the pirate enterprise, with the objective of bringing them to trial and disrupting pirate business processes. Often, the best way to attack organized crime is to follow the money. That’s how the U.S. put some nefarious criminals behind bars. Pirate organizers receive income both from investors and ransom payments, and disburse a portion of the proceeds of ransoms back to these investors. Already, the United States has convicted one Somali pirate negotiator.

This highlights the focus on high-value kingpins as opposed to just the foot soldiers executing attacks. In 2010, President Obama signed Executive Order 13536 concerning Somalia which identified 11 individuals who were suspected of financing piracy. The Executive Order imposed economic sanctions on individuals who “have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia” and indicated that “among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia.” Some of these same individuals were named in a list created by the UN Security Council in February 2012 indicating they are “individuals and entities subject to the travel ban, assets freeze and targeted arms embargo imposed by paragraphs 1, 3 and 7 of Security Council resolution 1844 (2008).”

The list of individuals annexed to the Executive Order includes, Mohamed Abdi Garaad, who was recently arrested together with 12 other suspected pirates on 4 April by Iranian commandos after the pirates had hijacked a Chinese cargo ship. It is reported that Garaad was:

In command of one of the largest pirate militias, Garaad is outspoken and well known to the international media.  He is reported to command 13 separate militia groups, totaling over 800 pirates.  In a 2009 interview, he proclaimed, “The navies, they can’t stop us … we have more than 200 crews and we are increasing all the time.”  Garaad is responsible for the attack on M/V Maersk Alabama, which ended with the successful operation by US Navy SEALs.  After this operation, Garaad publicly threatened to retaliate against US ships and crews.  Garaad is also responsible for the 2009 attack on the M/V Sea Horse, a ship delivering World Food Program aid to Somalia.

See also here and here. It is unclear whether he is in the custody of Iranian or Chinese authorities, whether he will be brought to trial and if so where and under what legal regime.

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

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!

The Mekong Pirates

The recent murder of 13 Chinese sailors on South-East Asia’s Mekong river triggered unprecedented joint international naval patrols by China, Laos, Myanmar and Thailand to provide security along parts of the estimated 4900 Km long river.

After crossing the Tibetan plateau and leaving China’s Yunnan Province, the Mekong flows southwest and forms the border between Myanmar and Laos for about 100 kilometers. It then turns southeast to form briefly the border of Laos with Thailand, then flows east and south into Laos for some 400 kilometers and defines the Laos-Thailand border again for some 850 kilometers as it flows east. It then reaches Cambodia, providing significantly for the country’s fishing and rice farming economy. Finally the Mekong empties into the South China Sea and upon entering Vietnam, subdivides into the Mekong Delta. The Mekong flows at the hearth of the so-called “Golden Triangle”, an area overlapping the mountains of Myanmar, Vietnam, Laos, and Thailand which has long since been one of the most extensive opium and heroin-producing areas of Asia and of the world. More recently, the drug production and trade has shifted to methamphetamines.

According to initial reports, the sailors were attacked in October when sailing aboard two ships in the Golden Triangle area. Some of the sailors had been found in the river with their hands tied behind their backs, some were blindfolded and some had been shot. The ships were recovered by Thai river police after a gunfight. Some 900,000 methamphetamine tablets worth more than $3m were found aboard, hence drug smugglers were initially suspected of the attack. In response, China suspended all shipping activities on the Mekong and urged Thai authorities to arrest those responsible. Later reports suggest the involvement of 9 Thai soldiers attached to an anti-drug task force who surrendered shortly after the attack and are now facing prosecution.

While the motives of the attack appear closely linked with drug trafficking, the economic and political interests of the Mekong’s numerous riparian States give an international dimension to the incident. Seasonal variations in water flow and the presence of waterfalls have historically made navigation of the river difficult, thus dividing, rather than uniting, the people of the Mekong. In 1995, following the UN mediation, Laos, Thailand, Cambodia and Vietnam established the Mekong River Commission to assist in the management and coordinated use of the Mekong’s resources. In 1996, China and Myanmar became “dialogue partners” of the Commission and the six countries now work together within a cooperative framework. Recently, each of these countries have been notoriously engaged in lengthy discussions regarding a Chinese-sponsored hydroelectric dam construction project – currently suspended – and its overall impact on the region.

The patrols mark a significant shift in China’s long standing policy of non interference in other States internal affairs. The patrols are said to be the first instance of Chinese police being deployed outside their territory without a UN mandate. It is thus not surprising that China is taking a leading role in the operations. The patrols are headquartered in China with stations in each of the other countries. At a meeting in Beijing, ministers from all four countries agreed on the new measures. China contributed with the deployment of 200 police officers and 11 ships. The plan also involves police departments in the four countries setting up a coordination team to explore further security measures. Finally, China will also help train and equip police in Laos and Myanmar for the patrols.

It is problematic to fully assess the legal framework in which the patrols could be deemed to operate as well as their relation with anti-piracy and armed robbery efforts. Interestingly, a cursory review of the history of piracy reveals limited reported instances of so called “river piracy”, mainly consisting of fluvial criminal activities in the 18th century within the USA. However, lacking its most fundamental element, namely the occurrence of the attack in the high seas, the Mekong incident squarely falls outside the relevant provisions of the Convention on the Law of the Sea (UNCLOS) relevant to piracy. Yet again, there appears to be a situation where the current applicable specialized international legal framework is not directly applicable to contemporary criminal activities or is capable to address their underlying root causes and overall impact, particularly in areas of flourishing economic development. States (including signatories to UNCLOS) are free to adopt broader definitions of piracy applicable to internal waters. However, the current trend is to legislate the definition in Article 101 of UNCLOS. Armed robbery at sea pertains to piratical acts within the territorial sea, but criminal acts within internal waters (even if such waters have an international character) remain unaddressed. The most important upshot to the situation at hand is that the principles which could resolve competing claims of police and judicial jurisdiction over criminal activity along the Mekong are not codified.

Recourse to the current, yet scarce and developing, legal framework attaching to international rivers might therefore provide for more focused analysis. Rivers are ordinarily considered as part of a country’s internal waters. However, rivers are also often used to demarcate borders. More importantly, lengthy rivers could cross several countries, reflecting a wide range of political, geographic, economic and cultural circumstances. The Mekong, the world’s 10th longest, is one such international river. These are also referred to as shared or transboundary rivers, as well as international watercourses.

Riparian states, namely states through which a transboundary river flows or form part of its borders, developed riparian rights and obligations normally confined over the use of the river for livelihood or sustainability purposes. Riparian States traditionally resorted to specific watercourse agreements or treaties to regulate the use of a shared river. Much of these rights and obligations are defined by the UN Convention of Non-Navigational Use of International Watercourses, which has yet to enter into force. Among its key guiding principles, contained in Articles 5 and 7, are the “equitable and reasonable utilization” and the obligation “not to cause significant harm” to other riparian states.

Literature on sharing international rivers define these as both catalyst for cooperation or conflict but also points to several important benefits from a structured cooperation among riparian states, including environmental, direct economic, political, and indirect economic benefits. Instances of state cooperation, however, seldom refer directly to issues relevant to the security of the watercourses, with the exception of risks deriving from pollution or excessive exploitation. Notably, Articles 7 and 8 of the UN Watercourses Convention requires States to “take all appropriate measures” to prevent or mitigate significant harm to other States as well as a general obligation to cooperate among riparian states.

Control of international rivers is inextricably linked with economic opportunity, national security, society and culture. It is within this general framework that the agreed cooperation over patrolling the Mekong and ensuring the safety of its navigation, in essence an international basin or watercourse agreement, should be seen. Such cooperation could cut individual States security costs and further their overall benefits from the use of the river, addressing issues of policing, extradition and prosecution as well as solidifying channels of communication between riparian states to address a potentially volatile situation. In other words, better security over the river will promote unity and integration among the riparian States and more possibility for each of them to manage the development and use of the river.

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