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.

Putting political convenience aside, pirates are rarely also terrorists

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.

A few months ago, I wrote a post entitled, Putting political convenience aside, pirates are simply not terrorists.  The piece argues that calls to treat all pirates as terrorists are totally unfounded, at least from a legal perspective. This is because, under international law, terrorism and piracy are accompanied by explicitly-defined, mutually exclusive motives.

Although I am standing by my substantive argument, the story of the MV Asphalt Venture is enough – as more astute readers may have noticed – to make me recalibrate my title a bit.

The Asphalt Venture is a Panamanian-flagged, Korean-owned vessel that was captured by pirates on September 28, 2010. On April 15, 2011, the pirates released eight of the Asphalt Venture’s fifteen crew members in exchange for a ransom payment, but the kept the remaining seven crew on board. Subsequently, the pirates issued a demand to the Indian government, particularly to the coastal state of Kerala, that the remaining hostages would not be released until India freed around 100 Somalis convicted of piracy and serving their sentences in India. Recently, the Asphalt Venture pirates have added a $5 million ransom to their list of demands of the Indian government. Old title notwithstanding, these pirates indeed became terrorists.

MV Asphalt Venture

As I explained in my earlier post, terrorism is characterized by a desire to either incite fear among the general public or to otherwise coerce a government. Conversely, piracy must be committed with the hopes of making money. Thus, where an individual takes hostages on the high seas in hopes of a ransom from a private entity, he is a pirate. Where he takes hostages on the high seas in hopes of shaping the behavior of a government, he is a terrorist.

Those who took the Asphalt Venture managed to be both. From September 28, 2010 to April 15, 2011, they were merely pirates, only interested in money moving from one private party to another. But the moment that the pirates engaged the Indian government, actively seeking to affect its behavior, those pirates also became terrorists.

Still, the case of the Asphalt Venture is best seen as an exception that proves the rule. Governments are famous for their refusal to pay ransoms, and pirates generally look to shipping companies and their insurers as the primary source of funds. Even with the Asphalt Venture itself, the pirates turned to the insurance company first, received their ransom, and only then did they make non-pecuniary demands of the Indian government.

I ended my last terrorism-related piece by noting that if “pirates tak[e] a less profitable course in favor of a strategy with large political payoff,” the terrorist-pirate distinction would come into play. This is exactly what has happened in the case of the MV Asphalt Venture. In abandoning their private ends in favor of increased political pressure, those who took the Asphalt Venture did not shed the moniker “pirate,” but they certainly gained the additional, arguably even less appealing label, of “terrorist.”

In the end, however, we should continue to be mindful that nothing short of actively pressuring a government to either take or refrain from a certain action can result in an accurate branding with the scarlet “T.” Looking at a single discrete incident to determine an individual’s motives and classify him as a pirate, terrorist, or both is one thing; seeking to apply the blanket term, “terrorist” to all pirates for political convenience is quite another.

Weekly Piracy Review: Crossfire near Somalia, Hostages Released

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

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

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

MV Orna

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

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

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

Weekly Piracy Review

Somalis on Trial for Piracy in Rotterdam

Kenya’s Court of Appeals overturned a 2010 ruling (as we have noted here and here), which had mandated that Kenyan courts only try cases in which the offense occurred within its territorial waters. This impaired Kenya’s ability to assist in the international effort to punish those carrying out acts of piracy on the high seas. Judge David Maraga read the opinion of the court concluding that “piracy has negative effects on the country’s economy and any state, even if not directly affected by piracy must try and punish the offenders.” Though it appears some piracy prosecutions were continuing in Kenya despite the 2010 ruling, the international community will be relieved to know that the law in Kenya is now settled and that no obstacles remain to such prosecutions.

Dutch court convicted nine Somali pirates to four-and-a-half years imprisonment. These individuals were arrested on-board an Iranian fishing boat they had taken in April. Though they were convicted of piracy, the men were acquitted on charges of attempted murder, as it could not be determined which of the men actually fired at the Dutch marines who arrested them.

Last Friday the Greek-owned carrier ship, the MV Free Goddess, was finally released by the Somali pirates who held it since Feb. 7, 2012. All 21 members of the crew who were on board at the time the ship was attacked over eight months ago were also released and appear to be well. The pirates responsible initially sought a $9 million ransom, yet they finally settled for $2.3 million last week-though the figure has also been reported as $5.7 million. This figure was stated by a Somali pirate and has not been confirmed by the company owning the ship, Free Bulkers SA. The ransom was air-dropped onto the Free Goddess, which then headed toward Oman to refuel, get fresh water and change out the crew members. During the time the ship was held hostage it was apparently being held at Gara’ad, a haven in Puntland, Somalia often used by pirates in the area.

Suspected Nigerian pirates boarded a Panamax tanker in the Gulf of Guinea off the Ivory Coast during the night on Saturday, October 6. Fourteen pirates, armed with knives and AK-47s hijacked the ship and re-directed it to Nigerian waters. They held the ship for three days while siphoning off oil, and then released the ship as well as all crew members on October 9. This attack was particularly alarming as it is the first of its’ kind to be reported in these waters, and shows that the Nigerian pirates are becoming both more sophisticated and bold. The attack occurred further west and away from Nigerian waters than any other reported attack, in an area which until now was believed to be safe for anchoring and performing fairly time-consuming operations. These Nigerian pirates took advantage of the fact that this particular ship was only midway through a ship-to-ship operation at the time of the attack. Tanker operators may now have to reassess their practice of carrying out these operations in the waters of the Ivory Coast.