Somalia’s New Constitution (what it does and doesn’t do for piracy)

Somalia’s Official Emblem adopted by the 2012 Provisional Constitution

On 1 August, delegates to the Somalia’s National Constituent Assembly adopted a provisional constitution. The document must still be approved by a majority vote of the electorate in a referendum. Nonetheless, the Provisional Constitution marks an important step towards the establishment of a representative federal government in Somalia. Further, it has significant ramifications for the prosecution of piracy.

Article 140 of the Provisional Constitution requires the Somali Federal Government to respect all prior treaty obligations. This includes UNCLOS which a preceding government signed in 1982 and ratified on 24 July 1989. Of course, UNCLOS sets forth the definition of the international crime of piracy, but in the event of any lacunae in that definition, Article 40 of the Provisional Constitution permits reference to Shariah Law, international law and decisions of courts in other countries as persuasive authority. Therefore, reference may be made to recent piracy judgements in Seychelles, Netherlands, France, and the U.S. among others.

In addition, the Provisional Constitution provides extensive individual rights for criminal defendants. These include a fundamental right to be brought before a capable court within 48 hours of arrest (see Article 35(5)). If pirates are arrested at sea it may be impracticable to bring them before a judge within that time frame. In such cases, some remedy, in the form of a reduced sentence (upon eventual conviction) or the dropping of charges (in extreme cases) will have to be considered. An alternative would be to perform an arraignment (first appearance) aboard the capturing vessel. But for this to be plausible, it might be necessary to bring a Somali judge onto the naval vessel. If the arraignment were performed by a judge from a foreign nation (e.g. a national of the naval power that captured the pirates), the judge would not have the power to put the Accused on notice of charges under Somali law.

Article 35 also incorporates the principle of nullum crimen sine lege (prohibition against ex post facto legislation). In the case of piracy, this should not prove controversial as Somalia ratified UNCLOS, which defines piracy, in 1989. However, the principle of nulla poena sine lege (no punishment without law) is also incorporated within this concept. Thus, without a specific sentencing regime in force for piracy, one could argue that an Accused did not have notice of the potential range of penalties available for those convicted of piracy thereby rendering any punishment impermissible. One might look to prior Somali legislation to fill this gap. But as Matteo has previously noted, Somalia’s prior anti-piracy legislation lacked a number of important provisions and was inconsistent with customary international law. The new Somali Federal Parliament will soon have an opportunity to remedy these problems as the Constitution sets forth a list of priority legislation to be enacted by the Federal Parliament and anti-piracy legislation appears 16th on this list. See Schedule One (d).

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.

Prosecution seeks death penalty for Felony Murder

Ahmed Muse Salad, Abukar Osman Beyle and Shani Nurani Shiekh Abrar entered their pleas to murder and other charges in U.S. District Court in Norfolk, July 20, 2011. (Credit: AP)

It was recently announced that federal prosecutors in the U.S. intend to seek the death penalty against three Somalis if they are convicted of murder in the fatal shooting of four Americans which occurred aboard a hijacked yacht during a failed rescue attempt last year. Of the other Somalis implicated in the incident: one was released by authorities because he is a juvenile; eleven have pleaded guilty to piracy and been sentenced to life in prison; and the ransom negotiator’s piracy conviction is on appeal.  Furthermore, the AP reports that four of the hijackers died on board, including two who have been identified in court records as those who shot at the Americans. This last assertion is based on the charging documents before a judge or jury has established the actual facts of the case. But, if these facts are borne out at trial, the three Somalis who remain to be prosecuted, and for whom the Federal prosecutors are seeking the death penalty did not commit premeditated murder.

Somali pirates do not take hostages with the intent of killing them; that is bad for business. They intend to hold the hostages for ransom. Of course, the pirates who pointed guns at the American hostages and killed them evidently changed their plans upon the imminent boarding of the yacht by U.S. Navy SEALS (and were killed themselves). But it is not clear that that those charged in this last case intended to kill the hostages. Some of them claim to have attempted to stop the killings. This is supported in part by the Prosecutor’s charging documents which indicate the deaths occurred in the commission or immediate flight from the offenses of kidnapping, hostage taking and violence against maritime navigation. Therefore, the basis for seeking the death penalty on the murder charges in this case appears to be the felony murder rule, whereby a killing that occurs in the course of a dangerous felony, even an accidental death, can be charged as first-degree murder. If the three pirates at issue here were fleeing the scene when two other pirates killed the hostages, is the death penalty a just sentence?

This issue is further highlighted by a discrepancy in the way the US Attorney is charging the eleven pirates who pleaded guilty and the three for whom the death penalty is sought.  By accepting pleas for life imprisonment for the former, the US Attorney has indicated that the death penalty is not forcibly necessary to serve the interests of justice in this case. It may be that there are facts that support a harsher sentence for the latter three. It may also be that the three refused to enter a plea agreement, so the US Attorney is wielding a stiffer penalty as leverage. But the question remains, is the death penalty an appropriate penalty for felony murder?

One final incongruity is the fact that the Prosecutor is not seeking the death penalty on the charge of piracy. From 1790, the crime of piracy pursuant to U.S. statutory law imposed a mandatory death penalty. The death penalty was replaced by “imprisonment at hard labor for life” in 1897, and then “imprisonment for life” in 1909. Therefore, the death penalty is no longer available for the crime of piracy under 18 U.S.C. 1651. The fact that Congress amended the statute to eliminate the death penalty indicates Congress’ view that the death penalty is not an appropriate punishment for piracy. If the principle crime at issue here is piracy, and Congress intended that no person be put to death for the crime of piracy, should that penalty still be available if the crime is charged as hostage taking or violence against maritime navigation resulting in death? Of course, a jury will have to decide whether the aggravating factors have been proven to justify a sentence of death.  But I really am curious as to what you all think on these issues.

Will the United States Play a Role in Prosecuting Pirate “Kingpins”?

Somalia has no trouble producing pirates. Between a central government that controls little beyond the capitol city of Mogadishu, an utter lack of economic opportunity for young men, and a 3,025 mile long coastline with access to the world’s busiest shipping corridors, for every Somali pirate captured at sea, there are many more waiting to take his place. Accordingly, one of the most promising means to put an end to this global menace is the prosecution and detention of the financiers of pirate action groups – those benefitting most from lawlessness in the Indian Ocean but never actually setting foot on a boat.

The Eastern District of Virginia and the Fourth Circuit Court of Appeals are in the process of hearing two separate cases that, taken together, could decide whether or not the United States of America will have any role in the prosecution of these so-called “kingpins” of piracy.

One case, United States v. Shibin, is just beginning the trial phase and is the United States first attempt to prosecute a high level facilitator of piracy. The case concerns Mohammad Saaili Shibin’s role in the hijackings of the M/V Marida Marguerite and the S/V Quest. In both attacks, Shibin’s role was that of translator and hostage negotiator. Shibin was paid between $30,000 and $50,000 for his role in the M/V Marida Marguerite attack but was paid nothing in for his role in the S/V Quest, as all hostages were killed before a ransom could be negotiated. Shibin confessed to his role in both hijackings to American authorities.

Mohammad Saaili Shibin – AP Photo

At issue is, inter alia, whether Shibin can be charged with Piracy under 18 U.S.C. § 1651, which outlaws “piracy as defined by the law of nations” and carries with it a mandatory life sentence.

Because Judge Robert G. Doumar denied the defendant’s motion to suppress his confessions, it will be difficult for Mr. Shibin to argue that he did not participate in the hijackings in the manner alleged. Instead, his case will rise and fall on the way the Fourth Circuit settles a split on the legal question of whether “piracy as defined by the law of nations” is an evolving or a static concept.

This legal question comes to the Fourth Circuit in the context of a split within the Eastern District of Virginia on two cases with essentially the same set of facts. In both United States v. Said and United States v. Hasan, the defendants set out to plunder a merchant vessel and fired upon what they believed to be such a vessel. In both cases, the would-be pirates were actually firing upon a United States Naval vessel.

In Said, the trial court held that § 1651 should be interpreted in light of the nineteenth century definition of piracy, which included only “robbery at sea.” Because the defendants in Said only fired upon a ship and never actually stole anything, their acts did not rise to the level of piracy.

The Hasan trial court, on the other hand, found that “the ‘law of nations’ connotes a changing body of law,” and that Congress meant to keep pace with those changes as they relate to maritime piracy when they drafted § 1651. The court went on to find that the contemporary definition of general piracy under customary international law is embodied in the High Seas Convention and UNCLOS,[1] both of which define piracy as:

(A) (1) any illegal act of violence or detention, or any act of depredation; (2) committed for private ends; (3) on the high seas or a place outside the jurisdiction of any state; (4) by the crew or the passengers of a private ship or a private aircraft; (5) and directed against another ship or aircraft, or against persons or property on board such ship or aircraft; or

(B) (1) any act of voluntary participation in the operation of a ship or an aircraft; (2) with knowledge of the facts making it a pirate ship; or

(C) (1) any act of inciting or of intentionally facilitating (2) an act described in subparagraph (A) or (B).

The cases of United States v. Shibin and United States v. Hasan are therefore inexorably tied to one another. If the Fourth Circuit overrules the Hasan trial court and holds that, for the purposes of § 1651, piracy only includes armed robbery at sea, none of the defendants in Hasan, Said, and Shibin are guilty of a crime under that statute. If it affirms the Hasan trial court’s holding that that the definition of piracy under the law of nations has expanded to include the definition embodied in UNCLOS and the High Seas Convention the result will almost certainly be the opposite. The defendants in Hasan and Said would be guilty of piracy resulting from acts of violence on the high seas, and Mohammad Saaili Shibin would be guilty of intentionally facilitating piracy. Though Shibin, as a translator and hostage negotiator, would be considered a mid-level pirate at best, the same legal reasoning that applies to him will apply to higher level facilitators who “incit[e] or . . . intentionally facilitat[e]” piracy but do not themselves commit robbery at sea.

An interpretation of § 1651 as embodying an evolving definition of piracy would make the United States an excellent venue to prosecute the financiers and facilitators of piracy, as the level of due process afforded to the defendants would be unassailable and the mandatory life sentence imposed by § 1651 would be a strong deterrent. Prosecuting these “kingpins” is, apart from solving Somalia’s broader governance problems, the surest way to put an end to maritime piracy in the Indian Ocean and Arabian Seas. Hopefully the American judicial system can adapt to this modern realities of maritime piracy.


[1] Actually, this conceptualization of piracy was first announced in a 1932 study on the international law of piracy conducted by Harvard University and later incorporated into the Law of the Sea Treaty in 1958 and reproduced in UNCLOS in 1982.

Pirate Victim Turned Pirate


The M/V Quest

Of the fourteen pirates indicted for the hijacking of the M/V Quest, a 58 foot yacht, and killing its occupants, four Americans on an around the world adventure, one of the pirates was not of Somali origin. Mounir Ali, 23, is a Yemeni national who was a fisherman who was himself captured by pirates.  According to a press statement from US Attorney responsible for his prosecution:

This defendant, the sole Yemeni, was part of the crew of another boat that was hijacked by a separate group of pirates some months earlier. The defendant had been taken on at least two piracy outings in his captured ship. On the second outing, the defendant was with other pirates when the Yemeni fishing boat, used as a mothership for the Quest hijacking, was captured.  The defendant transferred to the Yemeni fishing boat and then chose to go with the pirates when they located the Quest in exchange for a share of the ransom.

Mr. Ali argued that he only joined the pirates because he had no other choice. His boat was hijacked and he was promised that it would be returned if he joined in this raid. As I have previously remarked, this type of defence was common during another era of piracy. As noted here, during the 18th century, Caribbean pirates cleverly avoided conviction in British prosecutions based on a defence of impressment or duress:

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

In Mr. Ali’s case, he pleaded guilty in order to avoid the death penalty. The Judge, apparently unmoved by Mr. Ali’s claims of duress, sentenced him to life in prison.

But the defence can be successful in the right circumstances. Larger fishing vessels are regularly hi-jacked and the occupants conscripted to support piracy operations. In a recent example, the UK Navy considered the seafarers of a fishing vessel to be unworthy of prosecution even though the vessel had been used in several recent pirate attacks. They let 20 Pakistani crew go, while turning over four Somalis  to Italian authorities on suspicion of involvement in the recent attack on the Italian vessel MV Montecristo. Duress is also recognized by Article 31 of the Rome Statute which excludes criminal responsibility if:

The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.

Duress will continue to be a common defence in future piracy trials and determining its applicability will pose a challenge to any court addressing the issue.

Terrorism as a Defence to Piracy (a definitional problem)

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

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

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

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

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

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

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

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

Duress as a Defence to Piracy

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

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

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

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

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

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

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

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

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