Weekly Piracy Review: Costs & Sentencing

As reported here, in October pirates off the coast of Somalia fired at a small boat deployed from the HNLMS Rotterdam as part of its routine patrolling operations. After the ensuing fire-fight and rescue operation, the fishing boat’s captain revealed that he and his crew, along with their ship, had been hijacked off the coast of Oman several weeks earlier. The captain identified six of the people rescued from the water after the fishing boat caught fire as the pirates who took them hostage. Four of those men are now set to be prosecuted for their acts of piracy in Dutch court, as the marines they fired at from the Rotterdam were from the Netherlands. The two remaining suspected pirates were released, as they are minors. Two pirates and six of the original crew-members from the hijacked boat were wounded in this altercation, and one crew-member was killed. Two of the crew from the fishing boat are reportedly missing at this time.

Fifteen pirates were sentenced in the Republic of Seychelles on November 5 after being convicted for acts of piracy in attacking a merchant ship and abducting thirteen Iranian fishermen. The US praised Seychelles for their leadership in prosecuting those suspected of piracy, and reported that there have now been 631 convictions against pirates worldwide, with 98 of those coming from Seychelles. Additionally, 440 suspected pirates are currently facing justice in 21 countries.

After being held by Somali pirates since they were captured last November, two Seychelles fishermen were released early this week. The office of the President in Seychelles confirmed that after extensive effort and negotiations the two hostages had been released. A Somali pirate allegedly reported that a $3 million ransom was paid for their release, but this has not been confirmed. Since February 2009, pirates have hijacked five Seychelles boats, and eleven hostages have been kidnapped and subsequently released.

The Australian Navy sent its newly constructed warship on a 12,000 mile detour around Africa in order to avoid the possibility of being attacked by pirates while travelling through the dangerous waters in the Gulf of Aden. Though it likely would have taken about two weeks and $2 million less for the ship to make its journey from Spain to Australia through the Suez canal, the danger of encountering pirates on that route outweighed concerns regarding the time and expense of moving the ship to Australia. Other options were considered to thwart the possibility of pirate attacks, including sending a Navy frigate alongside the other ship and placing armed mercenaries onboard, but it was decided that the most effective method would simply be to take a safer route. That these measures were considered necessary is a clear indication that the cost of piracy is quite high.

Thursday marked the opening of a two-day Maritime and Coastal Security Africa conference in Cape Town, South Africa. A primary goal of this conference is to discuss better approaches to enhancing cooperation among different nations in the counter-piracy efforts being carried out. This concern arises due to the fact that nearly all African countries are major exporters of oil, and as such there are a large number of merchant vessels carrying valuable cargo all around Africa. These ships are attractive targets for pirates seeking to commandeer the cargo or hijack these ships and their crew for ransom, so the need to police these waters is ever-present.

According to the International Maritime Bureau, as of October 27, there have been 252 attacks and 26 hijackings so far in 2012. There have been 71 incidents, 31 successful hijackings, and 212 hostages taken by Somali pirates. Currently, Somali pirates are reportedly holding nine vessels and 154 hostages.

Weekly Piracy Review: Crossfire near Somalia, Hostages Released

Pirate vessel ignites during firefight with HNLMS Rotterdam, NATO’s counter-piracy flagship

While patrolling the waters off the coast of Somalia on Wednesday the HNLMS Rotterdam, NATO’s counter-piracy flagship, destroyed a pirate fishing boat. The Rotterdam had deployed a boarding team to check out the boat, and upon confronting those aboard the ship the team began to take fire from fighters on the boat and on land. The fishing boat aroused suspicion as it was the type generally employed to transport pirates in their efforts to hijack larger merchant ships. The attack on the boarding team prompted the Rotterdam to return fire, which resulted in the fishing boat catching fire. Those on board were forced to flee into the sea, and despite continuing to draw fire from those onshore the Rotterdam proceeded to rescue at least 25 people from the water. One person was found dead, and it is unknown whether they were a pirate or being held hostage. It is also unclear how that person died. The Rotterdam suffered only minor damage and no one from the Dutch warship was injured.

In December of 2010 the MV Orna, a UAE-owned cargo vessel, was hijacked by a group of Somali pirates about 400 nautical miles North East of the Seychelles in the Indian Ocean. Since then the ship has been held hostage, along with the crew members who were taken with it. After growing impatient following nearly two years of attempting to collect a ransom for the return of the Orna and its’ crew, it has been reported that one of the hostages was killed in late August of this year. This killing was allegedly  carried out in an effort to prompt a ransom payment, though the truth of the story has recently been disputed by a technical advisor to the ship’s management company. If true, this act is believed to have been the first killing of a hostage by Somali pirates, as generally hostages are held unharmed until ransom is paid.

MV Orna

Last Saturday the vessel and 13 of the 19 crew believed to have been aboard were finally released following a ransom payment reported to be between $400,000 and $600,000. The ship’s captain, the chief engineer, and four other crew members were not released, and are still being held hostage. It is believed that their captors are divided into two separate groups, who disagree over the amount of money they require in order to release these remaining six hostages. The remaining hostages are being held by piracy investors, who support piracy by providing food and security for hostages during negotiations in return for a portion of the ransom. Negotiations are continuing between these piracy investors and the UAE company that owns the Orna.

The UAE’s National Transport Authority (NTA) announced a new anti-piracy security system it will be implementing. As part of the security measures being taken, tracking devices are being installed on commercial ships bearing UAE flags and carrying over 300 tons of cargo. This will allow these ships to be monitored around the clock from offices in Abu Dhabi and Dubai. According to the NTA, 150 ships have already been outfitted with the system, which will soon be installed on about 800 more. In addition, the system implemented by the NTA will provide on-board security protection for these vessels to further discourage piracy attacks.

The International Maritime Bureau reported this week that the number of reported attacks by Somali pirates has dropped to its’ lowest point since 2009. This is largely a reflection of increased efforts on the part of the international community to police the waters of the Arabian Sea around Somalia, focusing on patrolling the Gulf of Aiden. Along with this drop in pirate activity around Somalia there has been an increase in the number of attacks in other areas, including the Gulf of Guinea, Indonesia, and other parts of South Asia.

Child pirates: A key issue for respecting child’s rights and halting piracy

This guest post is by Sonia Messaoudi who is a trainee-lawyer at Paris Bar School with an LLM in international law and human rights. She has interned at Amnesty International and the United Nations Assistance to the Khmer Rouge Trials

Two Somali youth accused of piracy returned home to their parents on 13 August 2012 after a Seychelles court determined they were too young to sentence after an eight-month detention. [Hassan Muse Hussein/Sabahi]

In August 2012, two Somali youth who had been accused of piracy returned home after a Seychelles court determined that they were too young to be sentenced. The children were brought to Garowe on a private plane paid for by the United Nations Office on Drugs and Crime. This is the modern and dark version of piracy books for children. Indeed, this is not an isolated case off the Horn of Africa as about one-third of Somali pirates are children. While eliminating piracy became a worldwide issue, it has to be approached without forgetting the protection of children who are involved in such criminal activities. As noted on the 23 November 2010 for the first time in a piracy resolution, the Security Councilexpressed concern about the involvement of children off the coast of Somalia.

According to international law, children should not be prosecuted by the same means as adults. The United Nations Convention on the Rights of Child states a child (i.e. anyone under 18 years old) should be handled differently than adults when charged with serious crimes, and “be treated in a manner consistent with the promotion of the child’s sense of dignity and worth.”  However, many Somali youth linked to piracy are held in foreign jails, causing great worry for their parents.

As the use of child soldiers is denounced, there is an increasing international mobilization against the use of children for criminal purposes. When dealing with child pirates, there are two possibilities: arrest them in accordance with a juvenile crime, or release them which means they must be put back into one of the worst forms of child labour.

In some countries, children are prosecuted, while in others children are protected. In the countries where children are prosecuted, the State must ensure it does so in accordance with international juvenile justice standards. Over the last twenty-five years, child-specific instruments, such as the UNCRC and general human rights treaties, have played a crucial role in setting out states’ obligations towards young offenders. The UNCRC has four general principles – (i) the right to life, survival and development, (ii) the right not to be discriminated against, (iii) the requirement that the best interests of the child be a primary consideration in all actions concerning children and finally (iv) the right of the child to be heard in all decisions that affect him/her. It requires a dedicated juvenile justice system, a minimum age of criminal responsibility and the adoption of measures to deal with children without resorting to judicial proceedings, provided that human rights and legal safeguards are fully respected. The UNCRC prohibits the imposition of the death penalty and life imprisonment on children, and requires that imprisonment be imposed only as a last resort and for the shortest appropriate period of time. It also prohibits arbitrary deprivation of liberty and provides for the right to prompt legal assistance and the right to challenge the legality of the detention.

As Radhika Coomaraswamy, the Special Representative of the Secretary-General for Children and Armed Conflict stated, if an international criminal tribunal is convened to deal with the perpetrators of acts of piracy, no child should be tried in the same court as adults but rehabilitated and integrated back into their communities. However, if a prosecuting state decides not to prosecute them, the concrete consequence is to put children back into a situation where they may be forced to perpetrate further acts of piracy. Therefore, solutions should be found in order to reintegrate them into the society as required by Article 7 of The 1999 ILO Convention on the Elimination of the Worst Forms of Child Labour, and article 40 the Convention of the Rights of the Child.

Potential solutions may be drawn from the situation of child soldiers. Roméo Dallaire has noted there is no major difference between a child soldier and a child pirate: “they are children being used by adults for criminal or political purposes, and they are extremely vulnerable, and there are a lot of them.” As for child soldiers, a program called “Prevention, Demobilization and Reintegration” created in 1990’s for helping child soldiers helped more than 100 000 since 1998. Prevention consists essentially in advocacy and supporting civil society by raising awareness of child rights through a variety of media, and using local and international human rights reporting mechanisms. Centers have been created in this purpose, assisted by local or international non-governmental organizations, UNICEF, and UN. Furthermore since piracy business is currently costing and estimated $12 billion to the world economy, prevention seems to be a good investment while finding a solution for child pirates and in order to prevent them from engaging in such criminal activities.

However, prevention and reintegration of children is not enough to eradicate piracy. We must attack the roots. Indeed, the employment of children in criminal activities such as piracy is forbidden by the Labour Organization Convention. The UNCRC states the State parties recognizing the right to child to be protected from exploitation shall provide for appropriate penalties or other sanctions to ensure an effective enforcement. In countries where  pirates originate, such as Somalia, governments often do not respect international standards of human rights. However in order to prosecute pirates who are using or recruiting children, some recommendations were made. Indeed, encouraging government to enforce national legislation to ensure there is no impunity against those accused of perpetrating these violations against children, and increasing pressure on persistent perpetrators through greater interaction between the Council and the Secretariat of UN, national courts and the ICC are one of them, as Resolution 1918 requested it off the coast of Somalia. In case of armed conflicts, some resolutions recommend sanctions, such as arms embargos. We could think about these kinds of solutions for piracy too.

However, the issue is now to know whether or not the use or recruitment of children for criminal activities such as piracy can be prosecuted. In some domestic law, as France and in some states in United States of America for instance, there are specific statutes criminalizing encouraging, using or recruiting children for criminal activities. However, where such is not criminalized especially for recruiting children, it may be possible to prosecute for causing, encouraging, soliciting, or recruiting criminal gang members. Furthermore, Article 101(c) on UNCLOS provides another way to prosecute them stating the recruitment can be as an act of incitement.

At the international level, convictions by International Courts of Thomas Lubanga Dyilo and Charles Taylor have helped raised awareness of the criminal nature of the recruitment and use of children in armed conflict. Furthermore, the International Criminal Court disallows the recruitment or conscription of child soldier (under the age of 15 years) into military which is defined as war crimes.

In order to draw a parallel between child soldiers and child pirates, the question is whether child pirates may be considered to be child soldiers. According to the international definition, a child soldier is any child under 18 years of age, who is part of any kind of regular or irregular armed force or armed group in any capacity including but not limited to: cooks, porters, messengers, and anyone accompanying such a group other than family members. Therefore, the question is whether or not pirates who are using or recruiting children are regular or irregular armed force or armed group. An International armed conflict exist whenever there is resort to armed force between two or more States, while Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. There are two options then. First, it is an non-international armed conflict and we have to determine if the pirates groups can be seen as armed group or irregular armed force, and secondly, it is an international armed conflict and the question is whether or not piracy as international conflict. But pirates group are not well identified.  Both of the two options are not legally convincing. So it seems in most of the case, international humanitarian law cannot apply to child pirates in Somalia, as it applies for child soldiers.

Therefore, in order to impede children piracy and respecting children’s human rights, we should deal with child pirates but also with persons using or recruiting children for such a criminal activities. Where the first ones should not be prosecuted but reintegrated into the civil society, the second ones should be.

What is sure is that we have all, from the local communities to the States and international institutions, the responsibility to make sure the only pirate children should know is Captain HooK.

Long road to justice – The German piracy trial

 

 

 

This post comes from Tim René Salomon. He is a Rechtsreferendar (articled clerk) in Hamburg and currently assigned to the Landgericht Hamburg. The opinions expressed in this article are solely his own.

After 105 days of trial and a duration of almost 2 years, Judge Dr. Steinmetz announced the verdict and penalties on Friday, the 19th of October 2012 for the Third Grand Penal Chamber of the Landgericht Hamburg. The ten accused were found guilty of two crimes, attack on maritime traffic (§ 316c German Criminal Code – StGB) and abduction for the purpose of blackmail (§ 239a StGB). The adults were sentenced to six to seven years, while the juveniles and accused which were under 21 years of age at the time of perpetration were handed a two year penalty and will walk free after having served their time already during the extended period of pre-trial detention. It may be of even greater surprise, although the author finds this aspect to be one of the great success stories of the trial, that the three young accused behaved exemplary in pre-trial detention during which they went to school and have, after their early release, continued going to school with one of the accused even delivering his last word in the proceeding partially in German.

In the four hours of Steinmetz‘s announcement, he stressed numerous aspects of the trial, the acts committed and the political backgrounds and took the time to deliver his personal perception of what he termed an “absolutely exceptional proceeding”. This exceptionality is clear to observers everywhere. It was Germany’s first piracy trial in about 400 years, it was exceptional in the sense that so far no other trials in Germany are on the horizon on the subject matter, but it was also exceptional or better put notorious for its duration. The fact that it took two years is indeed remarkable, when looking at the rather simple case at hand:

The MV Taipan was headed from Haifa, Israel to Mombasa, Kenya and avoided the vicinity of Somalia in order to be relatively safe from pirate attacks. 500 nm from the Somali coast in the middle of the Indian Ocean on the April, 5 2010 they sighted the dhow Hud Hud, a kidnapped vessel, which was first deemed harmless and the threat it posed became apparent only when it sent two skiffs towards the container vessel Taipan. The crew of the Taipan, which now travelled full speed, was sent to the safe room and the master and two crew-members remained on the bridge. When the skiffs closed in and machine gun fire hit the Taipan, the master ordered everyone in the ship’s citadel. The pirates on the skiffs tried to climb on board, observed by a German maritime surveillance aircraft, and eventually succeeded. The individual role of each accused could not be ascertained with the necessary certainty, but it is documented that the pirates changed the vessel’s course to Somalia and destroyed the GPS antenna to complicate the tracking of the Taipan. After the Taipan’s master Eggers noticed this, he blacked out the vessel from the citadel to stop its travel, knowing that the Netherlands Navy frigate HNLMS Tromp was near, although the attack took place outside of the area under the EU ATALANTA mandate. During the following four hours the pirates unsuccessfully searched for the safe room until soldiers from the Netherlands Navy boarded the Taipan and apprehended ten suspects after a brief previous exchange of fire between the Tromp and the pirates. The suspects were then taken to Djibouti, flown to the Netherlands and were eventually extradited to Germany, where the prosecution was conducted.

What seems to be a rather clear cut case ended up to be a very challenging and long-lasting endeavor for the Hamburg court, which has led the trial with meticulous care. The applicability of German criminal law was more or less uncomplicated, since it derives from the German flag of the Taipan (§ 4 StGB), the passive personality principle as two victims, the master Eggers and merchant seaman Preuß, were German nationals (§ 7 (2) StGB) and the universality principle, which German law applies to attacks on maritime traffic (§ 6 Nr. 3 StGB). The court could have mentioned § 3 StGB, the territoriality principle, as the blackmail was directed against a German-based company, which means that the result of the crime arguably should have occurred in Germany according to the intention of the offenders (§ 9 StGB). Also the Hamburg court is locally competent because of the Taipan‘s home port, Hamburg (§ 10 German Criminal Procedure Code – StPO), with the Grand Penal Chamber of the Landgericht being the proper instance because of the expected penalty above four years imprisonment.

At the start of the proceeding every accused was granted two lawyers to prepare and conduct their defense. The issues started early in the trial. Seeing that people under the age of fourteen cannot be held criminally liable in Germany, the court first had to conduct medical exams to verify the claims of some of the accused that they were below this threshold or were at least under 18 or 21 respectively, rendering the juvenile code applicable. Two expert witnesses were heard until this issue was resolved with the necessary certainty. Moreover, during the trial, witnesses were heard e.g. on the situation in Somalia and the causes of piracy, the responsible captain of the Netherlands Navy testified and the master of the Taipan as well as his second officer also gave evidence. Some of the accused chose to make statements themselves during various stages of the trial, some admitting their participation in the act, while incriminating others, some claiming that they were forced to partake in the attack or at least deceived into participation. While the court was unable to bring to the light how exactly the pirate group conducted the attack, the declarations by the accused led to some insights into the act, although any allegations of force or deceit were held to have been unconvincing, since sufficient evidence pointed to the fact that all of the accused participated voluntarily. Consequently, the court saw an attack on maritime traffic and the abduction for purposes of blackmail as given in this case. The fact that the victims were in the safe room did not prevent the abduction from being successful in a legal sense, since the victims were in fact under the control of the pirates, who controlled the entire vessel.

This led the court to a possible penalty of 5-15 years imprisonment for the adults. In weighing the facts and background of the case to find a just penalty, the court stressed especially the danger of the act, the heavy weaponry used, the damage dealt to the vessel and the high criminal energy, but also the situation in Somalia under which the accused grew up, the fact that the accused were only small fish in a criminal network, the long pre-trial detention periods, the fact that there were no complaints against the accused during this detention and the short duration of the abduction. In doing so, it arrived at substantially shorter penalties than the state attorneys requested in this case.

In its concluding remarks, the court stressed that the trial was surely not able to prevent piracy or deter future perpetrators, but it also underlined that the trial was necessary with regard to the individual perpetrators and in order to communicate to the victims that the crime committed against them was punished. The duration of the trial was certainly longer than necessary. It was criticized by the court that the defense attorneys delayed the trial substantially, which is probably true. Although they merely used the means given to them by German criminal procedural law, some of their requests seemed far-fetched, e.g. the proposal for the court to travel to Somalia to see what life is like there, the proposition, the court should pay bribes in order to obtain witness statements from Somalia, a challenge against the court for bias, because the proceedings started one hour later than originally announced one day, or even the request to lock the captain of the Netherlands Navy, the person responsible for freeing the Taipan, in coercive detention, because he did not give evidence with regard to classified matters.

What remains for the international community? Surely, piracy trials need not last two years to be fair, but this trial shows that granting an effective defense also means trials tend to last longer. Against this backdrop, the ongoing trials in Kenya and the Seychelles, which last only much shorter and which, in case of the Seychelles, have featured one defense attorney for up to 14 accused show what happens when no effective defense is guaranteed. A similarly dramatic contrast is to be found in the way the issue of age was handled in the German trial versus how it is handled in e.g. the Seychelles. While the court in Hamburg went to great lengths to estimate as precise as possible the age of the accused, in the Seychelles, age has up to now not even been a criterion which lead the courts to distinguish between adults and juveniles with regard to the applicable penalties. Expecting the same diligence, which was used in the German proceeding everywhere in the world, would probably be a rule-of-law-overkill, but to some extent the German trial has thrown into sharp relief the conduct of trials elsewhere in the world.

New Article: Pirate Accessory Liability

In view of the debate concerning the prosecution of pirate leaders and financiers, I have posted a new article on SSRN entitled: Pirate Accessory Liability – Developing a modern legal regime governing incitement and intentional facilitation of maritime piracy. I attach the abstract for your information:

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of the UNCLOS or the travaux préparatoires and leaving domestic jurisdictions to fill these gaps risks creating a fragmented, and potentially contradictory, legal framework. On the contrary, resort to general principles of law ascertained by international criminal tribunals creates a predictable, and consistent, understanding of these modes of responsibility. This article shows how the jurisprudence of the ad hoc criminal tribunals fills the gaps in the law related to incitement and intentional facilitation of piracy. It further shows how these modes of responsibility are particularly suited to charges of financing pirate organizations or inciting children to participate in pirate enterprises.