Piracy: Declining in the Gulf of Aden, Rising in the Gulf of Guinea

We are pleased to welcome Milena Sterio as a contributing author to Communis Hostis Omnium. She is an Associate Professor at the Cleveland-Marshall College of Law, where she teaches international law and international criminal law.  She has published numerous articles on the topic of maritime piracy, and she frequently lectures on this topic.  She is a member of the Piracy Working Group, an expert think tank founded by members of the prominent non-governmental organization, the Public International Law and Policy Group.  In her capacity as Piracy Working Group member, she traveled to the Seychelles and to Mauritius, where she consulted with local prosecutors and judges on best strategies toward successful national piracy prosecutions.

A crew member prepares to board a tanker that was hijacked by pirates in Benin on 24 July 2011. Photo: IRIN/Daniel Hayduk

Maritime piracy in the Gulf of Aden and elsewhere in the Indian Ocean appears to be on the decline.  In 2012, only 35 piracy attacks took place, compared to 163 attacks in 2009.  As of January 2013, Somali pirates were holding 4 large ships with an estimated 108 hostages.  In the past, the pirates had held dozens of ships and several hundred hostages at one time.  Some news reports indicate that many Somali pirates seem ready to abandon this once lucrative criminal endeavor.  Last year, Mohamed Abdi Hassan, a high-profile Somali pirate, was quoted as saying “I have given up piracy and succeeded in encouraging more youths to give up piracy.”

This decline in piratical activity off the east cost of the African continent is most likely due to several factors.  First, the Gulf of Aden and other waters of the Indian Ocean have been more heavily patrolled by joint maritime forces of several nations, including European Union and NATO-led fleets.  The presence of naval forces in these waters has deterred some pirates from attempting attacks on merchant ships.  Second, many merchant and passenger cruise ships sailing off the east coast of Africa have been staffed with armed security guards.  Statistics show that no successful pirate attack has ever occurred against a ship protected by armed guards.  Third, Somali pirates seemed to engage in the crime of piracy because it represented a lucrative business opportunity, which posed minimal risk and promised tens of thousands of dollars in financial gains.  Today, piracy is a more risky endeavor, because of the presence of naval fleets in the Indian Ocean as well as armed guards aboard ships.  Thus, Somali pirates may seem willing to abandon this criminal enterprise in order to possibly explore other kinds of opportunities.

Yet, although piracy seems to be declining off the east coast of Africa, the opposite is true for the west coast of the African continent.  Piracy in the Gulf of Guinea, home to major oil-producing states such as Nigeria, Angola, Equatorial Guinea, Gabon and Ghana, has been on the rise.  34 piracy incidents were recorded between January and September 2012, up from thirty in 2011. Togo reported more attacks in 2012 than in the previous five years combined, with three vessels hijacked, two boarded and six attempted attacks.  Piracy has also been on the rise in Benin.  In addition, Nigeria reported over twenty attacks in 2012.  And on February 3, 2013, a French oil tanker was reported missing off the Ivory Coast; according to the International Maritime Bureau, the ship was probably pirated off the shores of Nigeria.

The piracy model in the Gulf of Guinea resembles its counterpart in the Gulf of Aden in terms of the pirates’ modus operandi: in West Africa, pirates sail out to the sea on larger vessels but then launch attacks using smaller skiffs.  In addition, pirates in West Africa seem to be resorting to this crime because of factors similar to those that have existed in Somalia for several decades: insecurity, poverty, as well as a lack of education and employment opportunities.  However, while Somali pirates seemed mostly after collecting ransoms from shipping companies in exchange for the crew and cargo, pirates in West Africa seem more interested in keeping the cargo (mostly oil) of any successful hijacking operations, which they then sell on the black market.  Reports also indicate that pirates in the Gulf of Guinea are more prone to violence, and that they act in more brutal ways toward the captured crewmembers.  And because the Gulf of Guinea is a rich oil-producing region, its strategic importance, and thus the necessity of curbing the rising piracy threat, may be even greater than the piracy menace in the Gulf of Aden had ever been.

Unsurprisingly, like in the case of Somali piracy, the United Nations Security Council has become involved in finding solutions for this developing regional crisis.  On February 29, 2012, the Security Council adopted resolution 2039 calling on the Secretary-General to “support efforts towards mobilising resources following the creation of the regional strategy to assist in building national and regional capacities in close consultation with states and regional and extraregional organizations.”  Furthermore, on October 31, 2012, the United Nations Security Council, in resolution 2018, condemned all acts of maritime piracy and armed robbery at sea in West Africa’s Gulf of Guinea and encouraged states in the region to work together toward a comprehensive response to the menace of piracy.  The Security Council, in this unanimously adopted resolution, encouraged several regional organizations (the Council encouraged the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS) and the Gulf of Guinea Commission (GGC)) to jointly develop a strategy against maritime piracy.  Such joint strategy could entail the drafting of more comprehensive domestic laws which would criminalize piracy and armed robbery at sea, as well as the development of an information-sharing regional center.  Moreover, the regional anti-piracy efforts could include the development of domestic laws which would implement international agreements existing in the field of international maritime law.  In addition, ECOWAS, ECCAS and GGC could engage in bilateral or regional maritime patrols in the Gulf of Guinea, in order to ensure the safety of maritime navigation and thwart potential piratical attacks.  Finally, the Security Council urged member states of ECOWAS, ECCAS, and GGC to cooperate with other states, such as states where ships are registered, and states where victims or perpetrators come from, in the prosecution of pirates as well as of piracy facilitators and financiers, in accordance with applicable international law.   The Security Council thus encouraged all states in the international community to assist countries in the region in strengthening anti-piracy efforts in the Gulf of Guinea.

Like the Security Council, the Secretary-General, Ban Ki-moon, has also expressed his intention to focus on the piracy problem in the Gulf of Guinea, by deploying a United Nations assessment mission to the region in order to explore options on how to best address the problem.  According to the Secretary-General, piracy in the Gulf of Guinea could hinder economic development and undermine security in the region.

Within the next few months, the Security Council expects a briefing from Said Djinnit, the Secretary-General’s Special Representative and head of the UN Office for West Africa (UNOWA), on the Secretary-General’s semi-annual report, including an update on the Gulf of Guinea piracy problem.  The international community will have hopefully learned from the Gulf of Aden piracy epidemic, which seems to have been successfully curbed through coordinated international maritime efforts, that anti-piracy efforts in the Gulf of Guinea will similarly require international and regional strategy and a comprehensive anti-piracy plan.

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UN Optimistic for Progress in Somalia – Looks to Increase Its Engagement

Later next week, the UN Security Council will resume its discussion on Somalia. Among the main issues will be the future of AMISON as well as the embargo on arms and Somali charcoal. Before the Security Council is also the Secretary General Report S/2013/69 pursuant to Resolution 2067 (2012) containing the Secretary General’s options and recommendations on the UN presence in Somalia. The Report considers several possible structural configurations for a future UN presence in Somalia further to the end of the political transition period and the development of the democratization process, including the setting up of a peacekeeping, peace-support or a peacebuilding institution, either in coordination or jointly with the existing Africa Union presence. While the possible establishment of a peacekeeping operation in the near future remains under review, the Secretary General currently favors an assistance mission located directly in Somalia that would integrate the functions of the UN Political Office for Somalia and the UN Support Office for AMISOM (UNSOA) but keep the UN humanitarian country team separate:

United Nations assistance mission. Under this option, a new United Nations mission would deliver political and peacebuilding support with a presence across Somalia. In terms of logistics support to AMISOM, a dedicated Deputy Special Representative of the Secretary-General for Mission Support would report directly to the Department of Field Support in New York on delivery of the AMISOM support package, in order to ensure efficient delivery to AMISOM. At the same time, she or he would report to the Special Representative of the Secretary-General on United Nations mission support issues and policy and political questions arising from the functions of UNSOA relevant to the mandate of the United Nations assistance mission. The United Nations country team would remain structurally separate, but would participate in enhanced mechanisms for strategic integration and operational collaboration, supported by an expanded office of the Resident Coordinator/Humanitarian Coordinator. The scope for full structural integration would be reviewed annually, on the basis of progress in the political, security and humanitarian situation. Criteria for this review would be developed by the Somalia Integrated Task Force. This option enhances the strategic integration of United Nations functions while preserving distinct reporting lines for different United Nations mandates at the current sensitive stage of operations. This option is recommended; (para. 75(c))

There are reasons to believe that the Security Council will endorse the Secretary General’s recommendations and the deployment of the new mission will commence soon. The fight against piracy remains one of the main area of focus. Resolution 2077 (2012) renewed the current anti-piracy operations for another 12 months. Worthy of note is also the Secretary General support for the creation of a maritime component for AMISOM to consolidate control over southern and central Somalia and contribute to the training and mentoring of the Somali coast guard and maritime police (para. 82). Undoubtedly, the current drop in piracy attacks in the region is among the major successes of the international community involvement in Somalia so far. In this regard, it is essential that the current piracy deterrence and prosecution efforts are further developed as a starting point to enhance Somalia’s overall security and justice sectors:

The improved security situation in Somalia should help in the fight against piracy by denying the perpetrators safe havens both on land and along the coast. I encourage the new Government to develop a comprehensive national maritime economic and security strategy and a supporting legal framework, including declaring Somalia’s exclusive economic zone, working closely with all stakeholders. The resources that the maritime environment brings would contribute to financing the changes that are necessary for Somalia to recover from the last two decades of conflict. In this regard and as part of the wider security sector support, assistance should also be mobilized and delivered to the justice and corrections services. I have emphasized that the international community must address the root causes of piracy — instability, lawlessness and a lack of effective governance in Somalia — and therefore continue to intensify its engagement to link the counter-piracy approach with development and State-building goals (see S/2012/783). (Para. 88)

The Report of the International Piracy Ransoms Task Force is Available

The International Piracy  Ransoms Task Force, established at the London Conference on Somalia, issued its final Report on December 2012. The objective of the Task Force, composed of representatives of 14 States, was “to develop a greater understanding of the payment of ransoms in cases of piracy, in order to put forward policy recommendations to the international community as to how to avoid, reduce or prevent the payment of ransoms. The ultimate goal of this effort is to reach a point where pirates are no longer able to profit from ransom payments and thus abandon the practice of kidnapping for ransom.”

The conclusions and recommendations of the Task Force, included in the Report, build upon the following main options to reduce and avoid the risk of ransom payments to pirates:

  • strengthen the co-ordination between Flag States, the private sector and military responders to prepare for potential hostage situations, in order to shorten the decision-making process during the narrow window of opportunity for intervention after a piracy incident;
  • develop a new strategic partnership between Flag States, the private sector and law enforcement agencies that brings together those tackling piracy and those subjected to it in a united effort to break the piracy business model. In particular, this partnership should develop a more co-ordinated approach to information-sharing which would greatly enhance the quality and quantity of information exchange both to reduce ransom payments and to provide evidence to pursue and prosecute all involved in piracy, from those directly attacking ships to the kingpins who direct this organised crime;
  • encourage the implementation of anti-piracy measures, including still greater compliance with industry Best Management Practice, under the leadership of flag states and supported by the private sector, including insurance companies, in whose interests it is to mitigate risks.

Among the main practical recommendations put forward in the Report are the consolidation of various regional information-sharing frameworks to achieve a “one stop shop” mechanism for the diffusion of relevant information in the immediate post-hijack phase; the conduct of ransom negotiations with the knowledge of relevant national and international authorities in order to foster mutual assistance between these and the private sector; and the development of a mechanism maximising the evidence-gathering process immediately after the release of the vessel or its crew for subsequent prosecutions.

In line with the Task Force’s objective, the 15 page-long Report focuses mainly on the establishment of broad policies to improve communication and coordination to prevent hostage and ransom situations in the future. Several of these policies have been already under discussion for long time and by a number of institutions involved in the fight against piracy. Hopefully, the issuing of the Report will provide for a swift implementation of these policies. Regrettably, the Report does not contain an analysis and more practical recommendations directly relevant to actual hostage-taking, vessels’ hijacks and, more particularly, ransom situations. Given the wealth of knowledge and the technical resources available to the Task Force and its member states, as well as other participants from the private sector, it would have been preferable to expand on the Task Force’s mandate to immediately initiate an information sharing and lesson-learned process relevant to these aspects of piracy ransoms.

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 Somalia. Credit: Christian Bundeswehr - Reuters

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

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.

Weekly Piracy Review: United Nations Involvement

Romanian boarding team brings suspected pirates and their skiff back to the ROS Regele Ferdinand

Wednesday morning (November 21) a Swedish air patrol reported the presence of a suspicious skiff off the coast of Somalia. Romanian and Turkish warships approached the skiff, and the suspected pirates attempted to evade capture for about an hour. The warships were assisted in their pursuit by a Luxembourg helicopter, which easily kept track of the skiff. Finally, the Turkish team was able to search the boat while the nine suspected pirates were detained onboard the Romanian warship. The skiff  had been sighted earlier in known pirate waters, and no fishing supplies were found. Despite the strong suspicion that this was a pirate boat, the EU team determined that there was not sufficient evidence to build a case and prosecute these men, as they were not caught actually committing any crimes. The suspects were released onto a Somali beach on Thursday. After releasing the men EU naval forces sunk the skiff, causing these suspected pirates to lose their fuel, transportation, and ladders; and hopefully ensuring that these pirates will not be able to return to the seas in the near future. Rear Adm. Duncan Potts, the force’s operation commander, stated: “My message to the pirates is clear — we are watching you and we plan to capture you if you put to sea.”

Vietnamese boarding team re-captured hijacked Malaysian chemical tanker; arrested 11 suspected pirates

On November 17, a Malaysian-owned chemical tanker was hijacked in the South China Sea by a group of Indonesian pirates and taken to Vietnamese waters. After the International Maritime Bureau sent out an alert, Vietnamese authorities re-captured the vessel (which had been repainted and reflagged) and arrested the eleven suspected pirates on November 22. The nine crew members who were on board the hijacked tanker were forced into a life raft and released at sea on Wednesday. They were all rescued by local fishermen. This attack, the hijacking of a laden tanker, is said to be the first of its kind in the region in several years.

As previously reported here and here, Indian Ambassador Hardeep Singh Puri holds the UN Security Council presidency this month, and convened the first Security Council debate on the general threat to world peace and security posed by maritime piracy. Puri stated that forty-three Indian citizens are currently being held hostage by pirates, and it is estimated that piracy costs the maritime industry at least $6.6 billion annually for security. U.N. Deputy Secretary-General Jan Eliasson said that countries who are involved in counter-piracy operations need better communication with each other, and called for an agreement on the rules regulating the placement of private armed guards on merchant ships. U.S. Ambassador Susan Rice asserted that no ship carrying armed guards has been successfully hijacked, but the merits are controversial. Russian and Italian private guards have inadvertently fired on and killed fishermen off the coast of Somalia, mistakenly believing they were pirates approaching with the intent to board. French Ambassador Gerard Araud emphasized the greater deterrent effect that government-posted naval patrols have in warding off attacks. He also stressed the fact that about 80% of those arrested on suspicion of piracy are released without facing any prosecution, and that there is a need for a more efficient system of justice. More than twenty different nations have apprehended pirates off the coast of Somalia, and without a system in place to handle those arrested, many have simply been released back to Somalia. Though piracy is down this year, it is widely accepted that there must continue to be a strong focus on counter-piracy measures, or attacks will increase again.

Hardeep Singh Puri, Indian Ambassador to the UN, called for Security Council debate on piracy

The following day, the Security Council renewed authorizations put in place in 2008, which were developed to allow international cooperation in the fight against piracy. The Council emphasized the role Somalia is expected to play in these efforts and requested that the nation pass a complete set of anti-piracy laws. It also called on all member states to fully criminalize acts of piracy and assist Somalia in its implementation of more effective policies to combat the problem. The development of specialized anti-piracy courts in Somalia and other similarly affected states was termed a priority. South Africa’s representative, while agreeing that the adoption of these measures is an important step, emphasized that as a whole the efforts ought to include measures to combat the root causes of piracy in order to stop it before it starts.

The International Maritime Bureau reports that as of November 20, there have been 261 total attacks worldwide and twenty-six hijackings worldwide so far this year. Of those numbers, Somalia accounts for seventy-one incidents and thirteen hijackings, with 212 total hostages. Currently, Somali pirates hold nine vessels and 154 hostages.

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.

After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Honorable Mr. Justice David K. Maraga (photo: Kenya Law Reports)

The Court of Appeal decision overturns a ruling from the High Court of Mombasa that concluded, as noted by Roger on this blog, that “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Rather than summarizing the lower court’s opinion, I will simply direct readers to Roger’s excellent analysis of that case.

On appeal, Justice David Maraga stated that the High Court erred by, 1) “subordinating Section 69 of the Penal Code to Section 5”; 2) misinterpreting Sections 369 and 371 of the Merchant Shipping Act of 2009, and; 3) “fail[ing] to appreciate the applicability of the doctrine of universal jurisdiction.”

With regards to the first ground of error, the Court Appeals took issue with the High Court’s interpretation of Section 5 of the Penal Code and its relationship to Section 69. Section 5 states that “The jurisdiction of the courts of Kenya…extends to every place within Kenya, including territorial waters.” The High Court characterized Section 5 as the “defining” Kenyan jurisdictional provision and concluded that Section 69, criminalizing piracy on the high seas, was “void, ab inicio.

Justice Maraga differed with the High Court’s position and held that “there is no conflict or gradation between [Sections 5 and 69].” He noted that Section 5 is part of Chapter 3 of the penal code, entitled “Territorial Application of the Code,” while Section 69 is contained in Chapter 8, “Offences affecting Relations with Foreign States and External Tranquility.” In short, Section 5 concerns itself with the territorial jurisdiction of Kenyan Courts and Section 69 deals with extraterritorial offenses. If anything, concluded Justice Maraga:

“on the established principle of statutory interpretation that in event of inconsistency in statutory provisions the “later in time” prevails, it is Section 69 [passed in 1967] which should supersede Section 5 [passed in 1930] but there is no warrant for that as there is no conflict between the two sections.”

MV Courier, the pirated ship at issue in Hashi (photo: ShipSpotting.com)

The second basis for overturning the High Court’s ruling arises out of the 2009 repeal of Section 69 of the Penal Code and its replacement with Section 369 of the Merchant Shipping Act. Below, the High Court suggested that repealing Section 69 took the crime of piracy jure gentium off the books. However, Section 369 Merchant Shipping Act, the article replacing Section 69, closely tracks UNCLOS article 101’s definition of piracy under international law. Accordingly, although the Merchant Shipping Act does not include the Latin phrase “jure gentium,” the crime of piracy under international law, according to the Court of Appeal, survived the statutory change.

In the alternative, Justice Maraga pointed to Section 23(3) of the Interpretation and General Provisions Act, which states that in the case of a law being repealed mid-proceeding, that proceeding shall move forward “as if the repealing written law had not been made.” Because the act in question was allegedly committed on March 3, 2009 and Section 69 was not repealed until September 1, 2009, the above-mentioned interpretive provision would apply in this case.

The final issue under consideration was the broader question of whether Kenya was authorized under international law to try piracy cases where the act in question was committed outside Kenya’s territorial jurisdiction by perpetrators and against victims who are not Kenyan nationals.

Justice Maraga responded by noting that piracy was a crime of universal jurisdiction and recounting Kenya’s participation in and adoption of UNSCR 1918 in April, 2012. This resolution “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected…pirates apprehended off the coast of Somalia…” Ultimately, Justice Maraga concluded that:

the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

This decision should be welcomed by the international community, especially those involved in the prosecution and detention of suspected pirates. Most immediately, Hashi allows for five separate piracy cases brought under Section 69 of the Kenyan Penal Code to move forward, clearing up a two-year backlog. More importantly, however, the Court of Appeal’s unequivocal acceptance of the principle of universal jurisdiction, its applicability to piracy jure gentium, and its incorporation in Kenyan municipal law ensures that Kenya can continue to play a central role in the regional prosecutions of piracy suspects.