Language, Capacity Issues Plague Indian Prosecutions of Somali Pirates

Suspects aboard the pirate ship the INS Taba on their way to Mumbai after being arrested by the Indian navy in March 2011. Photograph: Indian navy/EPA

The trial of about 120 Somalis in India is encountering significant obstacles, including difficulty finding qualified Somali-speaking interpreters, procuring deposition evidence from victims, and dealing with the sheer volume of cases on backlog. India’s navy has been very active in helping to patrol the seas off the coast of Somalia. It also recently used its turn as President of the Security Council to put the fight against worldwide piracy at center stage. Perhaps because of its pro-active approach, India has taken into custody a large number of suspected pirates. As we have seen in any number of western countries taking up piracy prosecutions, there are substantial challenges that come with prosecuting Somalis in a transnational setting. This is not to mention the legal obstacles faced by countries attempting to revive centuries old laws to address the resurgence of this type of criminality. As we surveyed in 2011, India’s legal framework for piracy required updating. Video-link testimony and interpretation, in addition to, a more active foreign office might assist the prosecutions in these cases.  Of course, all of these solutions require resources and technological capacity. This is true whether prosecutions move forward in the Netherlands, the U.S. or in India.

Italian Marines to be tried in Special Court in Delhi for Enrica Lexie Incident

The two Italian Marines to be put on trial before a special court in Delhi

India’s Supreme Court has rejected a bid by the Italian government to transfer to Italy the case of two of its marines charged with the murder of two Indian fishermen. The judges said that the marines would be tried in a special court in the capital, Delhi. As previously discussed here and here, in the Enrica Lexie incident Indian fishermen were shot and killed by an Italian Vessel Protection Detachment on board to protect against pirates operating in the Indian Ocean and Gulf of Aden. Jurisdiction over the incident was contested by Italy and India leading to litigation before the Supreme Court of India which has now pronounced its view. A friend of the blog has provided us the Judgement of the Supreme Court.  Here are the crucial paragraphs:

97. In my view, since India is a signatory, she is obligated to respect the provisions of UNCLOS 1982, and to apply the same if there is no conflict with the domestic law. In this context, both the countries may have to subject themselves to the provisions of Article 94 of the Convention which deals with the duties of the Flag State and, in particular, sub-Article (7) which provides that each State shall cause an inquiry to be held into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State. It is also stipulated that the Flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

98. The principles enunciated in the Lotus case (supra) have, to some extent, been watered down by Article 97 of UNCLOS 1982. Moreover, as observed in Starke’s International Law, referred to by Mr. Salve, the territorial criminal jurisdiction is founded on various principles which provide that, as a matter of convenience, crimes should be dealt with by the States whose social order is most closely affected. However, it has also been observed that some public ships and armed forces of foreign States may enjoy a degree of immunity from the territorial jurisdiction of a nation.

99. This brings me to the question of applicability of the provisions of the Indian Penal Code to the case in hand, in view of Sections 2 and 4 thereof. Of course, the applicability of Section 4 is no longer in question in this case on account of the concession made on behalf of the State of Kerala in the writ proceedings before the Kerala High Court. However, Section 2 of the Indian Penal Code as extracted hereinbefore provides otherwise. Undoubtedly, the incident took place within the Contiguous Zone over which, both under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India is entitled to exercise rights of sovereignty. However, as decided by this Court in the Aban Loyd Chiles Offshore Ltd. Case (supra), referred to by Mr. Salve, Sub-section (4) of Section 7 only provides for the Union of India to have sovereign rights limited to exploration, exploitation, conservation and management of the natural resources, both living and non-living, as well as for producing energy from tides, winds and currents, which cannot be equated with rights of sovereignty over the said areas, in the Exclusive Economic Zone. It also provides for the Union of India to exercise other ancillary rights which only clothes the Union of India with sovereign rights and not rights of sovereignty in the Exclusive Economic Zone. The said position is reinforced under Sections 6 and 7 of the Maritime Zones Act, 1976, which also provides that India’s sovereignty extends over its Territorial Waters while, the position is different in respect of the Exclusive Economic Zone. I am unable to accept Mr. Banerji’s submissions to the contrary to the effect that Article 59 of the Convention permits States to assert rights or jurisdiction beyond those specifically provided in the Convention.

100. What, therefore, transpires from the aforesaid discussion is that while India is entitled both under its Domestic Law and the Public International Law to exercise rights of sovereignty up to 24 nautical miles from the baseline on the basis of which the width of Territorial Waters is measured, it can exercise only sovereign rights within the Exclusive Economic Zone for certain purposes. The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the Contiguous Zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS 1982. I agree with Mr. Salve that the “Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations” has to be conducted only at the level of the Federal or Central Government and cannot be the subject matter of a proceeding initiated by a Provincial/State Government.

101. While, therefore, holding that the State of Kerala has no jurisdiction to investigate into the incident, I am also of the view that till such time as it is proved that the provisions of Article 100 of the UNCLOS 1982 apply to the facts of this case, it is the Union of India which has jurisdiction to proceed with the investigation and trial of the Petitioner Nos.2 and 3 in the Writ Petition. The Union of India is, therefore, directed, in consultation with the Chief Justice of India, to set up a Special Court to try this case and to dispose of the same in accordance with the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of Criminal Procedure and most importantly, the provisions of UNCLOS 1982, where there is no conflict between the domestic law and UNCLOS 1982. The pending proceedings before the Chief Judicial Magistrate, Kollam, shall stand transferred to the Special Court to be constituted in terms of this judgment and it is expected that the same shall be disposed of expeditiously. This will not prevent the Petitioners herein in the two matters from invoking the provisions of Article 100 of UNCLOS 1982, upon adducing evidence in support thereof, whereupon the question of jurisdiction of the Union of India to investigate into the incident and for the Courts in India to try the accused may be reconsidered. If it is found that both the Republic of Italy and the Republic of India have concurrent jurisdiction over the matter, then these directions will continue to hold good.

The Judgement is something of a compromise as it takes jurisdiction away from the state of Kerala where local press were decidedly one-sided in their evaluations of the parties at fault. The trial will take place in Delhi where the marines might have a better chance of receiving a fair trial. However, the judgement rejects Italy’s claim to exclusive criminal jurisdiction in this case. The Supreme Court’s reading of the Lotus case in view of UNCLOS is crucial and merits further analysis. We hope to provide further analysis soon.

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.

Shibin files appellate brief

On December 13, Mohammad Shibin filed an Appellate Brief with the Fourth Circuit Court of Appeals. Shibin was charged with eight crimes, comprising fifteen separate counts, for his alleged role as a hostage negotiator in the hijackings of the Marida Marguerite, a German merchant vessel manned by foreign nationals, and the S/V Quest, an American sailing vessel with Americans on board. At trial, Shibin was convicted of all fifteen counts and sentenced to multiple life sentences plus 120 months in prison.

This post will offer a brief summary of the defendant’s arguments followed by even briefer commentary concerning the plausibility of those arguments. On balance, Shibin may have earned himself a retrial on a couple of issues, but he is highly unlikely to escape punishment altogether.

Mohammad Shibin shortly after his arrest.

Shibin’s first argument on appeal is that the two counts of piracy under 18 U.S.C. §§ 1651 and 2 should be dismissed because, “[i]n what could be characterized as almost indifference to this essential requirement, the government failed to present any evidence that Shibin had at any point committed any act upon the high seas whatsoever” (emphasis in original). In support of this argument, Shibin advances the plain language of § 1651, the legislative history of §§ 1651 and 2, prior lower court opinions on the issue, and customary international law as found in the Harvard Draft Convention and the Geneva Convention on the High Seas. These sources, according to the defendant, all suggest that universal jurisdiction over piracy only exists for those acts committed on the high seas or outside the territorial jurisdiction of any state, and that § 1651 only purpose is to criminalize those extraterritorial acts.

I have written a great deal about this argument in the past, and rather than re-hash it all here, I’ll direct readers to this EJIL Talk post and to other on CHO. I will add, however, that I agree that using § 2 to provide for universal jurisdiction over facilitators who act from with a single nation’s territory is impermissible under the Charming Betsy Canon. Ultimately, though, this is an issue that has yet to be fully litigated, so it is anyone’s guess how it will come out in the end.

Second, Shibin advances the ambitious argument that all counts should be dismissed because Shibin was improperly brought before the U.S. courts. Shibin rightly notes that a pair of Supreme Court cases, Frisbie v. Collins and Ker v. Illinois, stand for the proposition that “the power of the court to try a person for a crime is not impaired by the fact that he has been brought within the court’s jurisdiction by reason of a forcible abduction.” The Ker-Frisbee doctrine has been endorsed in the face of extradition treaties that were was silent on the propriety of forcible abductions in, inter alia, U.S. v. Alvarez Machainand Kasi v. Angelone. Shibin seeks to distinguish his case by noting that the United States and Somalia do not have an extradition treaty. The lack of such a formalized agreement, according to the defendant, signals the Somali government’s unwillingness to allow foreign officials’ access to their citizens.

This argument seems likely to fail with respect to the Marida Marguerite and will almost certainly fail regarding the Quest. In Alvarez Machain, the Court essentially held that silence as to the propriety of forcible transfers renders American courts unwilling to look into the legality of such transfers. This logic seems to suggest that U.S. courts view the right not to be forcibly brought before a U.S. court as a right that a foreign government must affirmatively assert on behalf of its citizens. Somalia’s silence on the matter is therefore likely to be interpreted in a similar fashion, whether or not that silence comes in the context of an extradition treaty.

The third argument advanced by the defendant is that all of the non-piracy offenses charged in connection to the Marida Marguerite should be dismissed because they are not crimes of universal jurisdiction. These counts include hostage taking and conspiracy to commit hostage, conspiracy to commit violence against maritime navigation and committing violence against maritime navigation, conspiracy to commit kidnapping and kidnapping. Shibin finds support for this argument in U.S. v. Yousef, 327 F.3d 56 at 104 (holding that universal jurisdiction crimes cannot be created judicially, by analogy, or through references to aspirational treaties or scholarly works).

However, this argument ignores the same Charming Betsy Canon upon which the defendant relies in support of his piracy charges. The Charming Betsy Canon states that statutes should not be construed as to violate the law of nations unless Congress manifests its intent to do so. However, 18 U.S.C. § 1203 (hostage taking), 18 U.S.C. § 2280 (violence against maritime navigation), and 18 U.S.C. § 1201 (kidnapping) all contain “found in” or “brought before” provisions stating that the United States shall have jurisdiction over those individuals who are later found in the United States or brought before a U.S. court. Thus Congress provides for some form of qualified universal jurisdiction over hostage taking, violence against maritime navigation, and kidnapping that arguably violates international law. Nevertheless, there is no shortage of precedent stating that courts will uphold such statutes if Congress’ intent is clear. It must be said, tough, that none of this precedent concerns a defendant with no traditional connection to the United States whatsoever, as is the case with Shibin’s charges stemming from the Marida Margueritte.

Finally, Shibin challenges the testimony of an FBI agent concerning a translated interview between that agent and Muhamud Salad Ali, one of the individuals who captured the Quest. Shibin argues that the facts surrounding the translation are such that the translator created an additional level of hearsay, and the translator’s absence from trial constitutes a violation of the Federal Rules of Evidence and the Confrontation Clause. In support of his argument, Shibin relies on a four-part test announced in the Fifth Circuit in U.S. v. Martinez-Gaytanand adopted by the Fourth Circuit in U.S. v. Vidacak. At issue in these cases was whether the translator should be considered an out of court declarant or a mere conduit of the in court witness. The four factors to be considered are: 1) which party supplied the translator; 2) whether the translator had a motive to fabricate; 3) the translator’s qualifications and skills, and; 4) whether actions taken subsequent to the translation were consistent with the statement translated.

According to Shibin, three of the four factors mitigate in favor of requiring the translator’s presence in court for examination. First, the FBI agent in question described the translator as “an FBI Somali linguist,” suggesting that the government supplied the translator. The second factor – potential motive to fabricate – is neutral, as there is no evidence suggesting bias. Third, there is no basis to determine the translator’s skill, as nobody but the prosecution had access to him or her. Finally, Mr. Salad Ali’s testimony in court directly contradicted that which came out of the earlier translated interview. On balance, Shibin argues, the nature of this particular translation created an additional layer of hearsay that can only be remedied through a re-trial of which the Somali translator would need to be a part.

This argument seems plausible on its face, assuming the facts and the law are as the defense brief says they are. Without more research or access to the government’s yet-to-be-filed brief, it is impossible to predict the outcome of this particular argument. I will note, however, that Shibin makes a Confrontation Clause argument that he says should stand regardless of the outcome of the hearsay argument. It seems to me, however, that the hearsay argument and Confrontation Clause argument will rise or fall together. If the translator is deemed a mere conduit of Mr. Salad Ali, the latter of whom was available for confrontation, it would be difficult to argue that the translator’s translation was testimonial.

UPDATE: Convictions in First Italy Piracy Trial

The 9 month-long piracy trial for the 2011 hijack of the Italian bulk carrier MV Montecristo, the first in Italian modern history, concluded last week in Rome with the conviction of all 9 Somali accused to prison terms of 16 and 19 years. We previously reported about this trial and Italy piracy laws here.

The accused were found guilty of attempted kidnapping for extortion and illegal possession of firearms. As the crime of kidnapping was only attempted, the maximum penalty range of 25 to 30 years of prison foreseen by the Italian criminal code was reduced by one third. During the trial, the accused unsuccessfully sought to be tried in the UK, in light of having been initially apprehended by UK forces, and challenged their transfer to Italian authorities. In accordance with Italian laws, the motivations for the verdict will be published within 3 months. All accused are likely to appeal the sentence, with some indicating to be ready to take the matter up to the European Court of Justice.

Interestingly, the prosecutors’ claim of the pirates connections with Al-Shabaab and the attack on the Montecristo being aimed at financing its terrorist activities and foster a campaign of obstruction of the free maritime transit in the Indian Ocean was rejected. Once again, this confirms the very tenuous links between the pirates’ business model and terrorism. In its latest report, the Monitoring Group on Somalia also found no evidence suggesting a structural or organizational link between Al-Shabaab and Somali pirate networks.

Another piracy trial will start on 4 December 2012, concerning the attempted hijack of the Italian oil tanker MV Valdarno on January 2012, off the Omani coast. The 11 Somalis charged with this attempted hijack opted for a plea bargain and are likely to receive a substantially reduced prison sentence.