Pirate Attacks Hit “Low Season” in Somalia – Why and What’s Next?

According to the International Maritime Bureau, pirate attacks off the coast of Somalia continued to fall sharply in the first half of 2012.  July 2012 was particularly significant, with no reported attempted attack. Remarkably, it was the first full month with no noteworthy pirate activity off the coast of Somalia and the larger Indian Ocean since at least half a decade. The last reported attack dates back to 26 June 2012, when a Maltese-flagged bulk ship was fired upon near the Yemeni coast. As of 29 July 2012, Somali pirates are still holding at least 11 vessels and 174 crew members.

A piracy situational map we’ve rarely seen – Courtesy Oceanus Live

The suprising drop in Somali pirate activity is spurring a debate on the reasons behind it and the impact of the international efforts to counter pirate attacks. Among the main factors are the pre-emptive and disruptive counter piracy tactics employed by the international navies, with military operations now extending both at sea and on land, the effective implementation of the Best Management Practices by the shipping industry, including the use of citadels and other ship hardening means, the strengthening of a regional judicial system of law enforcement and prosecution, also targeting piracy financiers and kingpins, and in particular, the manyfold increase in the use of Privately Contracted Armed Security Personnel and government-provided Vessel Protection Detachments by ships travelling through the area. It is likely that all these factors together and concurrently have contributed to the falling numbers, tipping the risk aspect to rise above the possible profit expectations for wannabe pirates. Bad monsoon weather is also an additional factor often overlooked, with July and August being traditionally difficult months to set off to sea in the region for both pirate mother ships and small skiffs.

What’s Behind the Horizon?

The current status quo requires the operational strategy to continue and focus also on wider land-based solutions encompassing both security and economic development. Some commentators have warned that pirates and their financiers are simply sitting idle awaiting for better days to come.  Notably, August 2012 will mark the end of the Somalia TGF. While there are high hopes for a better future for Somalia, it is difficult to assess how this will reshape the Country’s current political landscape. There are also fears that the successes of current anti-piracy measures will detract the necessary attention below warning levels with a consequential lull in the international and national effors to combat piracy. If so, the momentum could shift back in the pirates’ favor.

Mauritius Strengthens Its Anti-Piracy Capacity

Last month, Mauritius became the latest country in the Indian Ocean area to enter into an agreement with the United Kingdom for the transfer of suspected pirates before its courts for prosecution. The agreement was announced earlier this year during the London Conference on Somalia, which highligthed the UK driving role in Somalia’s recovery, including the fight against piracy. Mauritius thus follows in the footsteps of Tanzania and the Seychelles who have recently penned similar agreements with the UK, in 2012 and 2010, respectively, aiming to break the pirates business circle by providing a jurisdictional basis for their prosecution after apprehension at sea.

Prime Minister David Cameron and his Mauritius counterpart Navinchandra Ramgoolam sign the prisoners transfer agreement – FCO

Notoriously, foreign navies deployed off the Somali coast to counter piracy are reluctant to take pirate suspects to their own countries because they either lack the jurisdiction to put them on trial, or fear that the pirates may seek asylum. Evidentiary hurdles are also seen as an increasing impediment to effective prosecutions. Suspected pirates detained on the high seas are therefore often released after a brief detention due to the governments’ reluctance to bring them to trial.

Under the terms of the new international agreement, Mauritius will receive and try suspected pirates captured by British Forces patrolling the Indian Ocean. Last year, Mauritius entered into another agreement with the European Union for the transfer, trial and detention of suspected pirates captured by the EUNAVFOR naval mission. As reported on this blog, Mauritius has also inked a deal with the TFG, Somaliland and Puntland to start to transfer convicted pirates to Somali prisons, paving the way for the commencement of prosecutions in Mauritius.

The first trial of a suspected Somali pirates is due to commence in September 2012. In the meantime, Mauritius, already a signatory of UNCLOS, further strengthened its anti-piracy capabilities by adopting various relevant legislative instruments. First and foremost, a new anti piracy law was adopted at the end of 2011. The new Piracy and Maritime Violence Act 2011, premised on the transnational dimension of modern day piracy and the principle of universal jurisdiction to counter it, incorporates nearly verbatim in the national judicial system the definition of piracy as contained in Article 101 of UNCLOS. Acts of violence within Mauritius internal waters are defined as “Maritime Attack”. The novel term adds a degree of fragmentation in the definition of this offence, which is otherwise commonly referred to internationally as “armed robbery at sea”. In an attempt to cater for a wider range of piracy related criminal activities, the Piracy Act also criminalizes the offences of hijacking and destroying ships as well as endangering the safety of navigation. For each of these offences, the Piracy Act provides for a maximum term of imprisonment of 60 years.

More interestingly, the Piracy Act introduces the possibility for the holding of video-link testimonies and/or the admission of evidence in written form where the presence of a witness, for instance a seafearer, cannot be secured. While not uncommon in certain national criminal jurisdictions, as well as those of international criminal courts, the introduction of out of court statements, particularly when relevant to the acts and conducts of an accused, could trigger fair trial rights issues. These issues are principally due to the limited ability of the defence to test such evidence when relied upon at trial in the absence of the witness. In light of these concerns, the Piracy Act provides for the admissibility of evidence in rebuttal as well as for the court’s discretionary power in assessing the weight to be given to written statements.

In addition to the Piracy Act, which entered into force on 1 June 2012, Mauritius also adopted and/or amended its laws concerning assets recovery and mutual assistance in criminal matters in order to foster cooperation with foreign governments to tackle pirates and criminal cartels. The implementation of the agreement with the UK, however, is still to be fully tested. In May 2012, the UK announced that defence budget cuts required it to scale back its naval commitments in the region, withdrawning its ships from full-time counter-piracy operations.

 

The HMS Ocean Arrives in London Ahead of the London 2012 Olympic Games – Courtesy AP

These difficulties have been compounded by the need to commit ships and personnel to the security efforts for the London 2012 Olympic Games. The UK long-term commitment to combat piracy in Somalia extends beyond its current patrolling and disruption efforts in the Indian Ocean. To remain within the Olympic spirit, French Baron Pierre de Coubertin, considered the founder of the modern Olympics Games, famously noted how “The important thing in life is not the triumph but the struggle, the essential thing is not to have conquered but to have fought well.”  With piracy attacks in the region at their lowest level, during monsoon season, however, it is worth considering whether we should be content with the current efforts to combat piracy, or whether we should be aiming for more.

Somalis Pirates on Trial in France: 4 year long pre-trial detention creates evidentiary hurdles

Following her earlier post on French legislation on PCASP, below is another guest post by Valerie Gabard:

After four years of provisional detention, six Somalis faced a jury trial in Paris this month for the hijacking of the French luxury yacht Le Ponant in the Gulf of Aden, in 2008. They were tried for holding the 30 crew members as hostages in exchange for a 2.15 million euros ransom. The six men were arrested a week after the hijacking while driving in Somalia territory. When arrested by the French Military, they were carrying $200,000 believed to be part of the ransom. The convictions and sentences were delivered on Thursday last week. Two of the accused were acquitted by the Court, while the four others were convicted and sentenced to four to ten years of imprisonment.

The six men were charged with kidnapping, illegal confinement and organized gang theft but not with a specific offence of piracy. The legal qualification chosen by the Prosecution and the Investigating Judge in this case is due to the absence, in 2008, of a specific definition of piracy in the French Penal Code. Since 1825, France had a law criminalizing piracy but it was obsolete and did not reflect the definition adopted by the Montego Bay Convention. This Law was thus abolished in 2007 and only replaced by new Piracy legislation on 7 January 2011. Despite the legal lacunae from 2008 until 2011, the existing offences of kidnapping, illegal confinement or the offence of seizing or taking control of a ship by force or threat of violence (see article 224-6 of the Criminal Code) largely covered the legislative gap. The new legislation does not substantially change this approach as it does not create an independent offence of Piracy but merely refers to existing crimes in the Criminal Code that could qualify as Piracy as defined by the Montego Bay Convention (See Report from the French Senate – in French).

Le Ponant

During the trial, five of the six accused claimed their innocence. Only one admitted his participation in the operation and his presence on the yacht. Two accused admitted being on Le Ponant but only as sellers and three claimed that they were never pirates or having ever boarded the yacht. Although the accused were identified by the crew four years ago, with time passing doubts arose concerning identification and some of the crew members changed their initial statements. The captain of the yacht confirmed at Trial his initial statement but recognized that the identification of the pirates after four years is today impossible. The weakness of the eyewitness identification and the absence of forensic evidence linking the accused to the yacht, lead the Prosecution to rely almost exclusively on circumstantial evidence. The six men were not arrested on board of the yacht but a week later, during an armed operation conducted by French forces, while traveling by car on Somali territory. They were arrested carrying $200,000 believed to be part of the ransom. Establishing whether or not the accused were ever on the yacht, appeared to be the real evidentiary challenge in the case. The Accused benefited from these doubts and, while the motivations of the verdict are not immediately available, this almost certainly explains the acquittals with respect to the two accused that firmly denied their participation in the crimes. The convictions and sentences imposed by the Court also appear to mirror the accused admissions as their role in the operation during the investigation and at Trial. This shows that it is probably their own admissions that lead the jury to believe that they were guilty rather than the evidence presented by the Prosecution.

The Prosecution requested sentences ranging from 10 to 15 years imprisonment but the Court did not follow this approach acquitting two accused, convicting one to ten years, two to seven years and the last one to four years of imprisonment for complicity. This latter only acknowledged driving the car and, presumably should be released with the two acquitted persons as he has already spent four years on provisional detention. Parties have ten days to appeal the judgement but the six Somalis seem generally satisfied with the outcome and only the Prosecution might file an appeal. It is highly possible as the Prosecution wants this case to be an example and a warning for the Somalis still actively implicated in piracy in the Gulf of Aden. Indeed, because it considered the sentences to be too lenient, the Prosecution already appealed last year the Judgement that jailed five Somalis pirates between four and eight years for hijacking the yacht Carréd’As in the Gulf of Aden in September 2008. The appeal trial is still pending.

Four years of provisional detention prior to trial is significant, in particular when a trial concludes with two acquittals. The acquitted men are Somalis being transferred to France for the purpose of the Trial, thus placing them in an isolated and fragile situation. They are now recognized as not guilty and are set free but in an unfamiliar country with no money, no papers and their lawyers as only assistance (See “Abdulkader, «pirate» somalien naufragé dans les rues de Paris”). French authorities appear to repeat the tragic story of the only man acquitted at the first piracy trial (See previous CHO Blog post “Acquitted of Piracy, lost in Paris”).  This emphasized one of the down sides of extraterritorial trials.

Finally it should be noted that there are two more piracy trials coming up in France where the accused are already provisionally detained in France. The first one involves three Somalis arrested while hijacking another French yacht, the Tanit in 2009 and the second one involves the trial of seven men accused of the attack in September 2011 of a catamaran where a French citizen was killed. The latter should be tried based on the new piracy law that appears to be passed to address the unforeseen burgeoning of Somali piracy in the Gulf of Aden.

4th Circuit Decides Definition of Piracy Evolves with the Law of Nations

A three-judge panel of a U.S. appeals court has decided that UNCLOS sets forth the definition of piracy for purposes of U.S. law. As we signalled here and here, the U.S. Court of Appeals for the 4th Circuit was faced with the question of 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 a well-written and extremely thorough decision, the court has determined that the law of nations is an evolving concept and that the definition contained within UNCLOS constitutes the law of nations as defined in the statute.  Since UNCLOS defines piracy in part as ‘an illegal act of violence,’ a completed theft is not requisite to the crime. This has important repercussions for future prosecutions because pirates are often unsuccessful in boarding ships or taking anything of value even though they may fire upon vessels with AK-47s and RPGs.  Limiting the definition to the law of 1816 would have prevented U.S. courts from exercising jurisdiction where conduct less than a completed robbery was perpetrated. Here are the crucial bits of the opinion:

The defendants would have us believe that, since the Smith era, the United States’ proscription of general piracy has been limited to “robbery upon the sea.” But that interpretation of our law would render it incongruous with the modern law of nations and prevent us from exercising universal jurisdiction in piracy cases. See Sosa, 542 U.S. at 761 (Breyer, J., concurring in part and concurring in the judgment) (explaining that universal jurisdiction requires, inter alia, substantive uniformity among the laws of [the exercising] nations”). At bottom, then, the defendants’ position is irreconcilable with the noncontroversial notion that Congress intended in § 1651 to define piracy as a universal jurisdiction crime. In these circumstances, we are constrained to agree with the district court that § 1651 incorporates a definition of piracy that changes with advancements in the law of nations.

We also agree with the district court that the definition of piracy under the law of nations, at the time of the defendants’ attack on the USS Nicholas and continuing today, had for decades encompassed their violent conduct. That definition, spelled out in the UNCLOS, as well as the High Seas Convention before it, has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy. For example, in November 2011, the United Nations Security Council adopted Resolution 2020, recalling a series of prior resolutions approved between 2008 and 2011 “concerning the situation in Somalia”; expressing “grave[ ] concern[ ] [about] the ongoing threat that piracy and armed robbery at sea against vessels pose”; and emphasizing “the need for a comprehensive response by the international community to repress piracy and armed robbery at sea and tackle its underlying causes.” Of the utmost significance, Resolution 2020 reaffirmed “that international law, as reflected in the [UNCLOS], sets out the legal framework applicable to combating piracy and armed robbery at sea.”

Considering the importance of this opinion, the public defender may choose to petition for en banc review. The three judges on this panel were all Democratic appointees, which may mean they were more receptive to the evolving law concept. Whereas if the entire bench (15 judges) were to hear the case, it could reach a different conclusion.  The defendants also have the option of appealing to the U.S. Supreme Court. Therefore, there may yet be more to this story.

Somaliland’s New Anti-Piracy Law

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.

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!

Kenyan Ready to Start Hearing Piracy Cases Again?

In November 2010, the Kenyan High Court in Mombasa ruled that Kenyan courts did not have jurisdiction to try the crime of piracy. As I have previously noted, the case followed on the the Kenyan Foreign Minister’s assertion that, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” The Kenyan Director of Public Prosecutions, is now appealing the High Court decision. Special Prosecutor Patrick Kiage asserts that Kenyan courts derive their jurisdiction from international law, which declares piracy an international crime and that “Under international law, suspected pirates can be charged in any country where they are captured.”

The timing of this appeal is striking as it follows two separate attacks on tourists near Kenya’s border with Somalia, potentially devastating Kenya’s tourist industry. The two recent attacks near Lamu, Kenya (see map) were committed on Kenyan territory. Therefore, even if the High Court’s ruling were to stand, the acts could be prosecuted as murder, kidnapping, armed robbery, assault, or other such crimes under Kenyan national law. Nonetheless, as attacks affect more than just commercial shipping interests (which are in any case insured) and start to affect economic interests closer to home, Kenya will have more of an incentive to advertise its diligence in prosecuting pirates, whether for attacks in its own territory or in international waters.