A second avenue to assert universal jurisdiction over negotiators

August 25, 2012 by 2 Comments

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter. Cross-posted at The View From Above. 

In my previous post, I argued that the two pirate negotiators prosecuted by the United States – Mohammad Saaili Shibin and Ali Mohamed Ali – must have incited or intentionally facilitated piracy while on the high seas in order to have exposed themselves to prosecution by a court whole only basis for taking the case is universal jurisdiction.

There is another way for a pirate negotiator to subject himself to universal jurisdiction: an ex ante agreement to negotiate for pirates in the event of a successful hijacking.

This avenue is not applicable in the Shibin or Ali cases, as there is no evidence suggesting such an agreement, but it is nonetheless worth exploring because this is the avenue through which the true kingpins can be brought to justice.

The source of this second avenue of universal jurisdiction is the plain meaning of the verbs “to incite” and “to facilitate” contained in UNCLOS art. 101(c).

In the English dictionaries of the 18th, 19th, and 21st centuries, to incite is “to stir up,” “to animate,” and “to move to action.” To facilitate is to “to make easy,” “to free from difficulty,” or “to help bring about.”

Both of these verbs have prospective implications. An inciter or facilitator must either induce violence, detention or deprivation on the high seas or make such violence, detention, or deprivation on the high seas easier than that it would have been without the inciter or facilitator.

It strains both logic and credulity to suggest that an individual who had no involvement in – or even knowledge of – a hijacking on the high seas somehow spurred on or made easier that particular hijacking.

So in the end, we are left with two potential avenues for a pirate negotiator to subject himself to universal jurisdiction. The first is to commit an act of inciting or facilitating while physically present on the high seas, and the second is to enter into an ex ante agreement with the pirates.

The second avenue brings the real kingpins – financiers and investors, not negotiators – within the scope of universal jurisdiction. As for negotiators who neither enter into an ex ante agreements nor set foot on the high seas, they should still be judiciously targeted for prosecution, but something more than universal jurisdiction is required.

Flag states of the victim ship, national states of the crewmembers, as well as Somalia itself must step in and fulfill their international obligation to prosecute.

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A High Seas Requirement for Pirate Facilitators Under UNCLOS?

August 18, 2012 by Leave a comment

Regular contributor Jon Bellish presents the following commentary, cross-posted at The View From Above. We previously posted on this topic here and here where Roger reached similar conclusions to Douglas Guilfoyle, cited below. Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter.

The economic conditions in Somalia are such that there is no shortage of men willing to hijack a ship, risking their lives in hopes of earning of the equivalent of 20 years of income – $5,000 in Somalia – out of a single $1.5 million ransom. That basic reality is the driving force of modern maritime piracy, and it leads to a similarly basic conclusion.

Aside from fixing the economic situation in Somalia, prosecution of those higher up in the criminal chain of conspiracy – the investors and financiers of piratical operations – is the most effective, non-violent means of to putting an end to maritime piracy. If labor is cheap and capital is scarce, it makes sense to go after the capital.

The United States government has done its part by prosecuting two pirate negotiators,[1] Mohammad Saaili Shibin and Ali Mohamed Ali. The current dispositions of these cases highlight an interesting and important legal issue stemming from a common characteristic of piracy higher-ups. They themselves never set foot on the high seas.[2]

In Shibin’s case, Judge Robert Doumar allowed his trial to proceed; Shibin was found guilty and sentenced to 12 terms of life. In the Ali case however, which is still in progress, Judge Ellen Huevelle has found[3] that the perpetrator must be on the high seas for a crime of universal jurisdiction to occur.

What accounts for this discrepancy in United States courts? Who has the better of the argument? The answers to these questions have profound implications for the future of prosecuting those who profit most from piracy.

At the heart of this disagreement is a dispute over the proper interpretation of the UNCLOS definition of piracy and the United States’s federal statute criminalizing piracy under the law of nations. Both of these texts must be read according to one of the most basic canons of statutory interpretation — that statutory language not be read as being duplicative or ineffectual.

Opponents of a high seas requirement, such as Douglas Guilfoyle at University College London, argue  that UNCLOS art. 101’s definition of piracy makes it clear that performing piratical acts carries a high seas requirement, but acts of inciting or intentionally facilitating piracy can be performed anywhere, implying that both are crimes of universal jurisdiction.

To support this argument, opponents cite art. 101(a)(i) of UNCLOS, which states that piracy “consists of…any act of violence or detention [or deprivation]… committed for private ends by the crew… of a private ship…and directed…on the high seas, against another ship” [emphasis added]. They contrast that section with the next part of the piracy definition, art. 101(c), which says “any act of inciting or of intentionally facilitating an act described in subparagraph (a)” constitutes piracy. Opponents of a high seas requirement for facilitators conclude that, because UNCLOS announces a high seas requirement in subparagraph (a) and not in subparagraph (c), no such requirement exists for facilitation.

Conversely, proponents of a high seas requirement, including Northwestern University’s Eugene Kontorovich, cite various provisions of UNCLOS suggesting that universal jurisdiction over maritime piracy exists only where the act takes place on the high seas.

Chief among these provisions are arts. 100 and 105. The former limits a state’s duty to cooperate in the repression of piracy, and the latter restricts states’ universal capturing and adjudicating authority over pirates to acts occurring on the high seas. Additionally, art. 86 explicitly states that Part VII of UNCLOS (the part including the definition of piracy) only applies to the high seas and other areas outside the jurisdiction of any state.

Opponents counter that even if all of the aforementioned high seas references are operable, the drafters’ inclusion of a high seas requirement in 101(a) is otiose if 101(a) and (c) already had an implicit high seas requirement. Any other reading, they argue, is contrary to one of the most fundamental canons of statutory interpretation.

This is a mistake stemming from a conflation of UNCLOS’s definition of piracy and its pronouncements on universal jurisdiction. Opponents may be correct in suggesting that there is no high seas requirement for facilitators to commit statutory piracy as defined by UNCLOS, but they are wrong in arguing that performing an act described in art. 101 leads directly to universal jurisdiction.

Where piracy is concerned, UNCLOS performs at least two discrete functions: defining piracy and delineating the metes and bounds of universal jurisdiction over piracy. Art. 101 defines piracy as, inter alia, any act of violence, detention or deprivation on the high seas or any act of inciting or intentionally facilitating such an act. Where the statutory definition is concerned, there is a high seas requirement for perpetrators but none for inciters or facilitators.

Art. 101 says nothing about universal jurisdiction, however, and the parts of UNCLOS that do discuss universal jurisdiction – arts. 100, 105, and 86 – make it unmistakably plain that such jurisdiction extends only to acts physically performed on the high seas.

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “Whoever, 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.”

Section 1651 splices the definition of piracy and its high seas requirement as precondition for universal jurisdiction, outsourcing the former to international law (“as defined by the law of nations”) while making the latter explicit in the treaty (“[w]hoever, on the high seas”) , which is entirely consistent with the plain language of UNCLOS and the canon of construction at issue.

This means that, as defined by UNCLOS, negotiators and financiers who never set foot on the high seas have committed piracy, but that they have not committed a crime of universal jurisdiction. Unless higher-ups enter the high seas, they can be prosecuted only under the territorial, national, passive personality, and protective bases for jurisdiction.

At first blush, it may appear that such an interpretation does not bode well for those seeking to put an end to the global menace of maritime piracy, especially in light of the widely-held belief that the surest non-violent way to deter the piracy, apart from economic reconstruction in Somalia, is through the aggressive prosecution of so-called pirate “kingpins.”

In the coming weeks, however, I hope to dispel the notion that a high seas requirement for facilitators is bad for the international community. Such a requirement is in line with the policy rationale behind universal jurisdiction and it may ultimately be useful in prosecuting and punishing pirate financiers who never leave dry land.

[1] To be clear; negotiators are not financiers. Financiers perform much less physical labor and reap much more of the profits than negotiators. Though it is financiers that should be the ultimate targets, negotiators are in a similar legal position and are therefore highly relevant. Both groups facilitate, rather than perpetrate acts of piracy, and neither tends to enter the high seas.

[2] This fact was stipulated in Shibin’s case but is still at issue in Ali’s. Although the government claims Ali spent only 24-28 minutes outside Somali territorial waters, it has admitted that there is no evidence that Ali actively facilitated piracy during that time period.

[3] Take a look at Judge Huvelle’s opinion, which is a fine example of the U.S. Federal Bench’s appreciation and understanding of international law.

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Negotiator Sentenced to Multiple Life Terms – SCOTUS on the horizon

August 15, 2012 by Leave a comment

Defendant Mohamed Salid Shibin appears in court

As we previously discussed here and here, Mohammad Saaili Shibin has been convicted for his role as a pirate negotiator in two separate incidents. During the trial, there was evidence that the hostages were tortured, but Shibin’s main role was to negotiate a ransom payment. Shibin has now been sentenced to 12 life terms and his attorney has promised to appeal. Two issues could lead to overturning Shibin’s convictions and might soon reach the Supreme Court.

First, Shibin’s attorney has stated that piracy can only occur if someone commits robbery at sea. In other words, the issue is whether piracy under the 18 USC 1651 (which incorporates the law of nations) is an evolving or a static concept. If it is a static concept, then a robbery was necessary to complete the offence. Since Shibin never boarded the hijacked yacht, he did not commit a robbery and his conviction for piracy, the basis for the life terms, could not stand. If, however, piracy is an evolving concept, then the UNCLOS definition would prevail and, because it does not require a robbery, Shibin’s conviction would stand.

Shibin’s appeal will first be heard by a 3-judge panel of the 4th Circuit. Another panel of the same court has ruled, in U.S. v. Abdi Wali Dire, that piracy is an evolving concept. A petition for rehearing was subsequently denied in that case, and the defence is filing an appeal with the US Supreme Court. Shibin could appeal the same issue to the 4th Circuit and might win if a different panel hears the case. However, if his appeal is denied, which is likely, he will have to take the case to the US Supreme Court as well.

The second issue that might result in overturning his convictions is whether Shibin’s actions in Somali territory can constitute piracy under the law of nations. The Federal Court in the DC Circuit recently held, in U.S. v. Ali, that the international crime of piracy can only be committed on the high seas. Therefore, negotiating a ransom for pirated hostages on land or within a state’s territorial waters does not constitute piracy. There is a healthy debate as to the correctness of this decision. See here and here. Nonetheless, it appears that Shibin only boarded the pirated vessel in Somali territorial waters. The U.S. Attorney prosecuting Shibin said that Shibin was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters.Therefore, if the Ali-rationale were applied in Shibin’s appeal, his convictions would be overturned. Even though Shibin did not appear to make this particular argument at trial, if it is determined that piracy under the law of nations does not include actions from Somali territory, universal jurisdiction would not permit the U.S. to pursue this prosecution. Therefore, this is a jurisdictional issue that can be raised for the first time on appeal.

Members of Ogoni Community interested by Kiobel v. Royal Dutch Shell Source: Amnesty International

There you have it: two issues that could invalidate Shibin’s convictions. Either or both of these issues could reach the Supreme Court, perhaps not in Shibin’s case, but possibly in U.S. v. Dire. The justices may be inclined to grant certiorari as a rhetorical counterpoint to Kiobel v. Royal Dutch Shell which is on the court’s docket for the next term and will require the court to interpret the statutory language “the law of nations” as part of the Alien Tort Statute. The piracy cases might be helpful to those who would argue that universal jurisdiction only applies to those offenses originally contemplated and discussed by the First Congress (when the piracy law and the Alien Tort Statute were passed). According to this view, piracy would satisfy the requirement, but relatively newer crimes such as crimes against humanity would not.

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

August 14, 2012 by Leave a comment

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).

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Intentional Facilitation and Commission of Piracy as part of a Joint Criminal Enterprise

July 26, 2012 by Leave a comment

Defendant Ali Mohamed Ali, Source: Foxnews

In the U.S. government’s efforts to ramp up piracy prosecutions to include pirate kingpins, several cases of mid-level negotiators are working their way through the courts. We discussed one such case here. Another such prosecution recently met some setbacks when a U.S. District Court ruled in U.S. v. Ali that conspiracy to commit piracy was not a cognizable crime and further limited the application of intentional facilitation of piracy to acts committed on the high seas. See also, here. The latter issue was apparently moot at the outset since the prosecution alleged that the negotiator was on the high seas when he intentionally facilitated the acts of piracy. However, in a contentious hearing last week, it became apparent that the Accused only spent about 25 minutes on the high seas and that his criminal conduct may not have occurred in that time frame. Therefore the high seas issue is now central to the outcome of the case. The Prosecution has signalled its intent to file an interlocutory appeal and the Judge has ordered that the Accused be released on bail, noting misrepresentations by the prosecution on this issue. In my view, the conspiracy ruling was correct, but intentional facilitation was improperly limited to conduct on the high seas. This latter error would impede future prosecutions of pirate leaders in U.S. courts.

It should be made clear that U.S. courts that have addressed the issue in the last several years have uniformly concluded that although the U.S. is not a party to the U.N. Convention on the Law of the Sea, this treaty contains the definition of piracy under customary international law which is incorporated by the U.S. piracy statute (18 USC 1651). Therefore, piracy is defined in the U.S. purely by reference to international law, and not domestic U.S. law. See here for further background.

In its 13 July Decision in U.S. v. Ali, the Court held that the piracy statute requires that intentional facilitation occur on the high seas. See Memorandum Opinion at 17. I disagree with this interpretation of UNCLOS for several reasons. First, a plain language reading of UNCLOS does not impose a requirement that inciting or intentionally facilitating an act of piracy occur on the high seas. Article 101(a)(i) of UNCLOS defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends […] on the high seas […]” Intentional facilitation of such an act of piracy appears in subsection (c) of Article 101 which does not include the requirement that the act occur on the high seas. In other words, the illegal act of violence or detention must occur on the high seas, but the facilitation need not occur there.

The U.S. piracy statute could create some confusion as it specifically refers to piracy committed on the high seas which might be interpreted to extend the high seas requirement to intentional facilitation. (See 18 USC 1651 which provides in full, “Whoever, 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.”) However, the reference to piracy on the high seas in 18 USC 1651 is redundant. By definition under customary international law, acts of piracy (though not incitement or facilitation) must occur on the high seas. The reference to acts on the high seas in 18 USC 1651 was only meant to emphasize that conduct committed in the territorial waters of another state would not constitute piracy (such conduct is instead robbery at sea, solely within the purview of the littoral state). It is not at all clear that Congress would intend to modify the otherwise settled view of the law of nations. Therefore, to impose the high seas requirement on subsection (c) of UNCLOS (pertaining to intentional facilitation), which does not appear in the plain language of the treaty, would be contrary to the U.S. Supreme Court’s Charming Betsy canon (whereby a statute should be construed not to violate international law).

Furthermore, restricting intentional facilitation of piracy to crimes perpetrated wholly on the high seas is not necessary to protect the sovereignty of states where pirate kingpins may reside. The piracy statute only provides personal jurisdiction over those who are “afterwards brought into or found in the United States.” If a pirate kingpin has negotiated a ransom from the territory of another state, the U.S. must request extradition through the usual means prescribed by international law. For all of these reasons, the high seas requirement should not be added to the crime of intentional facilitation of piracy.

As to the District Court’s second holding, the decision to dismiss the conspiracy to commit piracy charge appears well-founded. However, it is worth considering whether other forms of responsibility, firmly established in customary international law, might support the criminalization of the conduct in question. For example, commission has been interpreted by the ad hoc tribunals (ICTR, ICTY, SCSL, STL) to encompass the form of responsibility referred to as joint criminal enterprise (JCE) where there exists (1) a plurality of persons; (2) a common plan, design or purpose which amounts to or involves the commission of a crime and (4) the accused’s participation in the common plan. Of course, the tribunals did not have competence to consider charges of piracy. However, similar forms of accessory liability are found in numerous domestic legal systems and piracy prosecutions in Seychelles have been successful on a theory of accomplice liability akin to JCE. See here and here. This mode of responsibility has not been considered by any U.S. court in a piracy case.

Jama Idle Ibrahim, sentenced last year to 25 years for his role in the same attack, will be a government witness against Ali.

Apart from the jurisdictional issues, the ultimate question in this prosecution is whether negotiators acting as middlemen between pirate hostage-takers and those seeking their release “intentionally facilitate” piracy pursuant to UNCLOS. The answer will depend on the factual circumstances and how the mens rea of facilitation is construed. The drafters of UNCLOS limited facilitation by requiring that the accused intentionally (not merely negligently or recklessly) facilitated the piratical act. This suggests not only that the Accused must intend to support the illegal act of violence or detention, but also that the facilitator must share the pirate’s intent to commit the act “for private ends” (i.e. for personal enrichment or other non-political purposes). Involvement in negotiations to release the hostages for humanitarian reasons would not satisfy this mens rea requirement. Elsewhere, Professor Kontorovich suggests that intentional facilitation cannot occur after an act of piracy, but must have occurred prior to it. But if the piratical act was committed with the pre-formed intent to hold hostages for ransom, then the completed piratical act would not have been possible but for the intervention and assistance of a negotiator to complete the transaction. If a negotiator also possesses the intent to personally enrich himself, the conduct would appear to fall within Article 101(c) of UNCLOS.

One final word about the fairness of this prosecution. Depending on the circumstances of a case, the negotiation of a ransom (or the financing of piracy for that matter) may appear to be less reprehensible than the acts of violence committed against seafarers on the high seas. Such is the dichotomy between low-level perpetrators and their white-collar sponsors. If a mandatory life sentence, as is imposed by the U.S. piracy statute, is inappropriate in some cases involving accomplice liability, this is a matter of charging strategy best left to the prosecutor. There are a number of other non-piracy statutes in the prosecutor’s repertoire that could be put to use. But it is an overbroad statement to assert that all white-collar facilitators of piracy deserve leniency.

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