Liability for the Destruction of Suspected Pirate Skiffs?

In one of their latest reported joint anti-piracy operation, EUNAVFOR and Combined Task Force 151 announced the disruption of potential piracy attacks off the Somali coast. In November 2012, the Romanian frigate ROS Regele Ferdinand, under EUNAVFOR command, and Turkish warship TCG Gemlik, of Combined Task Force 151, apprehended nine suspected pirates at sea off the coast of Somalia. Earlier, a Swedish EUNAVFOR maritime patrol aircraft located the skiff at 420 nautical miles east of Mogadishu, an area known for pirate activities. At the scene, the TGC Gemlik sent a boarding team to intercept and search the suspected vessel, which for over an hour tried to evade capture. The suspected pirates were then embarked onto the ROS Regele Ferdinand for futher questioning and evidence collection to assess the possibility of their prosecution. No fishing supplies were found on board, while it remains unclear whether the suspects were armed. Shortly after their apprehension, the suspected pirates were released onto a Somali beach for lack of sufficient evidence to proceed to their prosecution. According to EUNAVFOR, despite the strong suspicion that it was a pirate boat, it was determined that there was not sufficient evidence to build a case and prosecute the suspected pirates, as they were not caught actually committing any crime. In additon, building a case against the suspects would be too time-consuming and onerous.

German frigate Hamburg sinks an abandoned skiff off the coast of SomaliaCredit: Christian Bundeswehr – Reuters

However, their skiff and other effects on board, including fuel and ladders, were instead destroyed. According to EUNAVFOR, this will prevent the suspected pirates from using the skiff to attack ships in the future. By means of example, this incident, by no means uncommon, raises the question of the diffferent evidentiary grounds and standards of proof for the prosecution of suspected pirates and the destruction of boats and equipment belonging to them. While the destruction of a pirate vessel can prevent the perpetration of further piracy attacks, the sinking of a fishing boat, however small, might put a strain to the fishermen’s livelihoods. Article 106 of UNCLOS (and Article 110(3)) provides for the possible liability for any loss or damange caused by the seizure of a suspected pirate ship when effected without adequate grounds.

Liability for seizure without adequate grounds

Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure.

What are the grounds for the seizure and destruction of suspected pirate vessels and how do these differ from those provided for the arrest and prosecution of suspected pirates? In this regard, the legal framework applicable to the contrast to piracy, particularly in Somalia, needs some additional clarification and interpretation. UNCLOS explicitly provides only for a right of visit when there are reasonable grounds for suspecting that a ship is engaged in piracy (Article 110) and for a right of hot pursuit of a ship into the high seas only when there are good reasons to believe that a violation was committed (Article 111). The SUA Convention, its additional protocol, as well as the Djibouti Code of Conduct also contain references to various evidentiary thresholds, mainly reiterating the principles above contained in UNCLOS relevant to cooperation, rights of visit and liability for loss or damage.

In its recent Resolution 2077 (2012), approved after a significant debate on piracy as a threat to international peace and security, the Security Council renewed its call to continue the fight against piracy, including through the disposition of boats and other relevant equipment for which there are reasonable grounds for suspecting their use in the commission of piracy and armed robbery at sea:

10. Renews its call upon States and regional organizations that have the capacity to do so, to take part in the fight against piracy and armed robbery at sea off the coast of Somalia, in particular, consistent with this resolution and international law, by deploying naval vessels, arms and military aircraft and through seizures and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia, or for which there are reasonable grounds for suspecting such use;

Indeed, EUNAVFOR’s seizures or disposals of suspected pirate skiff are premised upon the standard of “reasonabile grounds to suspect” (see also here). How to interpret, therefore, this standard? Resolution 2077, issued under Chapter VII of the UN Charter, also makes various references to the need to ensure compliance with international law and more particularly, “applicable human rights law” and “due process of law in accordance with international standards” in the pursuit of accountability for suspected pirates (see also paras 16-18 and 20). A review of international human rights and criminal law, while concerning crimes of a different nature, might thus provide for futher guidance. Various standards exist and, admittedly, some differ from others by mere semantics. Article 58(1) of the ICC Statute, relevant to the issuing of a warrant of arrests, provides for the evidentiary threshold of “reasonable grounds to believe”. This is significantly different from the threshold required for the confirmation of charges against an individual under Article 61(7) of the same Statute (“substantial grounds to believe”) or, obviously, for a conviction under Article 66(3) (“beyond reasonable doubt”). “Reasonable grounds to believe” are also required before the ICTY for the submission of an indictment by the Prosecutor or in relation to contempt proceedings (Articles 47 and 77(c) of the ICTY Rules of Procedure, respectively). The ICC Pre-Trial Chamber equated the “reasonable grounds to believe” standard to the “reasonable suspicion” standard under Article 5(1)(c) of the European Convention on Human Rights. Arguably, this comparaison appears questionable. Believing is a concept stronger than suspecting. However, while also relevant to arrest and detention, the ECHR determined that this standard consists of the existence of facts and information which would satisfy an objective observer that the person concerned may have committed a crime. The procedure for the submission of an indictment before the ICTY provides the following description of the meaning of “reasonable grounds”:

Reasonable grounds point to such facts and circumstances as would justify a reasonable or ordinarily prudent man to believe that a suspect has committed a crime. To constitute reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty of the crime. […] It is sufficient that the Prosecutor has acted with caution, impartiality and diligence as a reasonably prudent prosecutor would under the circumstances to ascertain the truth of his suspicions. It is not necessary that he has double checked every possible piece of evidence, or investigated the crime personally, or instituted an enquiry into any special matter. […] The evidence, therefore, need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant the belief that the suspect has committed the crime. The expression “sufficient evidence” is thus not synonymous with “conclusive evidence” or “evidence beyond reasonable doubt.” (Review of the Indictment against Ivica Rajic, Decision of 29 August 1995, Case no. IT-95-12)

Given the limited role played by EUNAVFOR in the investigation and prosecution of piracy, perhaps reference to recent international commissions of inquiry, whose standards are generally lower than those of purely judicial institutions, might also provide for additional guidance. For instance, the International Commission of Inquiry on Darfur acted upon a standard of “reliable body of material consistent with other verified circumstances, which tends to show that a person may reasonably be suspected of being involved in the commission of a crime” (para. 15).

Pirates or Fishermen? – Courtesy AP

Put plainly, the review above shows that a discrete amount of supporting evidence and the mere possibility, rather than the certainty, of the commission of a crime are therefore required to meet the “reasonable suspicion” standard encompassed in Resolution 2077 for the seizure and disposition of suspected pirate skiffs. It is, arguably, an extremely low standard but it demarcates the basic threshold for piracy-disruption activities. Suspecting the commission of a crime, however, falls a long way from having demonstrable proof. While this standard might also be akin to that required for the arrest of a suspected pirate, those necessary to proceed to his investigation and prosecution are increasingly higher and still depend upon factors such as the quantity and the quality of the evidence, as well as the willingness of State actors to proceed. Finally, several questions remain on the suitability and susceptibility of claims of unlawful destruction of vessels to be brought before Somali authorities when adequated grounds for such destruction are missing or in doubt.