The International Day of the Seafarer

Today, 25 June 2012 marks the second international Day of the Seafarer. This year, the IMO is asking people around the world to use the power of social networks to highlight the importance of the work of seafarersm and raise awareness of seafarers and their unique role. Everyone, regardless of where they live, can join the campaign online, in particular by commenting the Day of the Seafarer Facebook page at www.facebook.com/SeafarerDay.

“Seafarers leave their homes and families, often for long periods to ensure that essential items and commodities on which our lives depend arrive safely at our homes.” (IMO)

Seafarer often finds themselves under demanding and sometimes dangerous circumstances, particularly in pirate-prone areas. The following are some of the most significant findings from the recently released 2011 Oceans Beyond Pirates Report on the human cost of piracy in the Indian Ocean:

  • 3,863 seafarers were fired upon by Somali pirates with assault rifles and rocket propelled grenades;
  • 968 seafarers came into close contact with pirates, who managed to board their vessels;
  • 413 seafarers were rescued from citadels;
  • 1,206 hostages were held captive by Somali pirates;
  • 555 seafarers were taken hostage in 2011; 645 hostages were captured in 2010 and remained captive during 2011; 6 tourists and aid workers were kidnapped on land;
  • 35 hostages died as a result of pirate captivity in 2011;
  • Average length of captivity was 8 months.

These findings are particulary concerning and demand continuing attention and engagement from all stakeholders in the maritime field. Several initiatives have been launched to support the plight of kidnapped seafarers and their families. Among those, is Save Our Seafarers which runs an on-going worldwide awareness campaign to raise the profile of Somali piracy in political and media circles, in order to see Somali piracy deterred, defeated and eradicated, and to stop seafarers being tortured and murdered.

What Does Piracy Have to Do with North Korea?

The reclusive authoritarian Democratic People’s Republic of Korea is once again back on the news headlines. Surprisingly, this time is not about the reactivation of its purported nuclear programme, or because of a new attempt to lift off a satellite/ballistic missile, or for some leaked information on the poor living conditions endured by its citizens. Media outlets are reporting on the possible hijack of 3 Chinese fishing vessels and the kidnap of their 29 crew members earlier this month. The vessels and all the captives were released today, following the intervention of the Chinese authorities. The incident has all the hallmarks of a piracy attack off the coast of Somalia or in West Africa. However, it occurred in the Yellow Sea, in an area between North Korea and China.

News reports are still contradictory and any in-depth analysis into this will necessarily depend on the real circumstances of the case. Notably, the incident has not been reported to the IMB Piracy Reporting Centre. In particular, it is not clear whether the incident took place in international waters. The identity of the assailants is also unclear. Some reports indicate that these were members of the North Korean military, while according to others Chinese mafia from the city of Dandong, on the North Korean border, might have been involved, possibly in cooperation with the North Korean military. Several news reports indicate that the vessels, originating from the city of Dalian, were accosted at sea by armed men and forced to sail to North Korea. The ship owners confirmed the capture of the vessels and their crew. According to the owners, the vessels were navigating within Chinese national waters. They also confirmed that the captors have asked for the payment of a ransom of nearly 190.000 US Dollars and have threatened to harm their captives if no payment was made.

If the assailants have no connection with state authorities, the main issue will be to determine whether the incident qualifies as piracy committed in the high seas rather than armed robbery within China’s territorial sea. However, whether the assailants are members of the North Korean military or not, the use of force and the request for a ransom renders them de facto pirates, because they appear to have acted in pursuit of private ends. If the available information is correct, their actions could also qualify as mutiny. In this regard, it is worth recalling that Article 102 UNCLOS encompasses acts of piracy committed by a government ship whose crew has mutinied.

Actions by the North Korea authorities have in the past drawn widespread international condemnation. However, it is difficult to envisage Pyongyang secretive rulers now embracing a state policy to terrorize fishermen in the Yellow Sea for ransom purposes, particularly when this has an impact on a longtime ally and regional military superpower as China. This latter routinely issues strong protests over fishing related disputes with Japanese, South Korean, Vietnamese or Philippine fishing vessels. China will likely take certain actions to prevent any further escalation of such attacks in the Yellow Sea, as it has done by policing Southeast Asia’s  Mekong river from drug smugglers and criminal cartels. However, doubts remain on whether the public outcry sparked by this incident will have an impact on its already strained relationship with North Korea.

Piracy Conviction Sets Stage for 4th Circuit Appeal

Reuters reports that Mohammad Saaili Shibin has been convicted on 15 counts in a U.S. Federal District Court, including charges of piracy, hostage taking, kidnapping and conspiracy. He faces a mandatory life sentence in a U.S. prison on the piracy charge based on the underlying conduct of negotiating ransoms for hostages kidnapped at sea. Due to this harsh sentence, Shibin is likely to appeal the conviction on the piracy charge. As Jon Bellish has previously noted on this blog, this sets the stage for the 4th Circuit Court of Appeals to consider whether “piracy as defined by the law of nations” in 18 U.S.C. § 1651 (adopted in 1816) constitutes a static or evolving concept. In other words, since the “law of nations” is not defined in the statute, is it defined as a matter of international law circa 1816 or does the definition evolve with changes in treaty and customary international law?

In my view, the 4th Circuit should interpret Section 1651 to encompass the defintion of piracy as it appears in the 1982 UN Convention on the Law of the Sea (UNCLOS). If we take the traditional ICJ formulation of the “law of nations,” the definition could derive either from international treaties or customary international law (or general principles). Although not a state party to UNCLOS, the U.S. has accepted the definition of piracy in UNCLOS as customary international law for the last four presidencies (see 2010 Digest of US Practice in International Law). There is no nullum crimen problem, as this definition has been accepted long before the offenses were committed (in 2009 or 2010). Nonetheless, the 4th circuit may be reticent to find an evolving concept within the statute. If the argument is that an evolving concept is antithetical to legal certainty in criminal law, one could argue that piracy is sui generis and limit the evolving concept to this particular crime. Other crimes in Title 18 are unlikely to be defined by “the law of nations”. In any event, the definition arguably has not changed since 1932 as the Harvard study’s definition from that year made its way into UNCLOS. In Shibin’s case, the jury instruction for the piracy charge will be of particular interest as it will have an impact upon how the appellate issues are framed.

If the 4th Circuit adopts the UNCLOS definition of piracy, the second question will be whether negotiating a ransom from land can constitute “inciting or intentionally facilitating” piracy under Section 101(c) of the Convention. The plain language would tend to support an affirmative response. But how far does “intentionally facilitating” extend? For example, does it extend to the cook or driver at the pirate’s land base? The travaux preparatoires of the 1982 UNCLOS Convention (and its precursor 1958 LOS Convention) provide little assistance in delineating the boundaries of these modes of participation. Likewise, these modes are not included in the ICTR, ICTY or ICC statutes, thereby rendering their jurisprudence of little assistance in an interpretive study. (Note: the ICTR Statute does include the mode of direct and public incitement, but this is particular to the crime of genocide and the “direct” and “public” aspects of this mode are integral to the definition). How the 4th Circuit decides this issue could have a significant impact on how future prosecutions proceed.  That being the case, and considering the U.S. judiciary’s recent difficulties in properly examining issues of international law and ICL in particular, the 4th circuit could well benefit from an amicus curiae brief based on expertise in these areas.

The Economic Cost of Piracy – Oceans Beyond Piracy Report 2011

The economic cost of piracy has joined the already substantial political and security concerns of such operations, as an issue requiring further research and consideration by the relevant stakeholders. In this vein, the Colorado-based One Earth Future Foundation, which studies the effects of piracy through the Oceans Beyond Piracy project, has released its 2011 working paper on The Economic Cost of Somali Piracy. In order to ensure reliability, the report builds on dialogue and feedback from Oceans Beyond Piracy’s 2010 assessment of the cost of piracy with data obtained through collaboration with maritime stakeholders from industry, government and civil society, in addition to commentators and experts in the field. As the second report of its kind, the paper aspires to flag pertinent concerns for the Oceans Beyond Piracy Working Group, which will release recommendations for a more coordinated, and comprehensive strategy against piracy in July 2012.

In highlighting its concerns about the economic cost of Somali piracy to relevant stakeholders and the wider community, the report estimates the 2011 economic cost of piracy to be $6.6 – $6.9 billion US dollars. The majority of which is spent in mitigation of piracy attacks rather than in ransoms, as is most commonly believed and also portrayed by the media. The report only calculates direct costs, as indirect figures were too difficult for the research to quantify and in doing so assesses nine different cost factors specifically focused on the economic impact of Somali piracy. Namely: increased speeds, military costs, security guards and equipment, re-routing, insurance, labour, ransoms, prosecutions and imprisonment and counter-piracy organisations. The report subsequently found that 80% of all costs relating to countering piracy attacks are covered by the shipping industry, while governments finance the remaining 20% of the expenditures. The approximately $7 billion figure for 2011, is down from the $7 – $12 billion that was estimated in the 2010 report. While the 2010 estimate was higher, the 2011 report is said to be based on more authoritative and exact information according to the author of the report Anna Bowden who explained that in reality the figures of 2010 and 2011 are likely to be similar.

Key piracy developments: overview

The report outlines what it believes to be the key piracy developments affecting the cost of piracy in 2011, where there was an increase in attacks by Somali pirates, particularly in the first quarter. There was a record of 237 piracy attacks, rising from the 212 in 2010. However the proportion of successful attacks fell, with only 28 of the vessels actually captured, in comparison to the 44 in 2010. This is most likely due to the use of private armed guards on vessels and naval operations that have become more familiar dealing with piracy issues. The report recognised that 99% of the $7 billion was spent on yearly recurring costs associated with the protection of vessels including $2.7 billion in fuel costs, $1.3 billion for military operations and $1.1 billion for security equipment and armed guards.

In other observations, shipping behaviour altered whereby shippers increased payments necessary to harden vessels, hire private security and increase speed in high risk areas. Further, the geographic expansion of pirate activities increased eastwards towards India, and northeast towards the Gulf of Oman and Strait of Hormuz. New trends in piracy mitigation included the rerouting of ships so that they transited close to the western Indian coastline rather than the Cape of Good Hope. As will be discussed below, only $16.4 million was spent on prosecutions and $160 million was collected by pirates in the form of ransoms, which is only 2% of the overall economic expenditure. These figures represent a disproportionately small contribution to the economic cost of piracy compared to the $7 billion spent in order to stop the attacks.

Further key developments surrounded ransoms, which increased from $4 – $5 million, as did the duration that ships were held hostage during negotiations. Meanwhile, the human cost in the loss of lives cannot be adequately quantified, but notably increased from eight in 2009 to 24 in 2011, despite the significant economic effort to avoid the attacks. 2011 evidenced an increase in seafarer deaths, in addition to specific incidents highlighted in the media where groups of pirates were accused of kidnapping tourists and humanitarian workers on land in Somalia and Kenya. This resulted in a more aggressive response from military forces conducting counter-piracy missions in the region while pirates changed their primary operations from large vessels to smaller fishing boats.

Piracy and prosecutions

An issue of particular interest is the comparatively low cost of prosecutions, imprisonment and local legal capacity building, which at $16.4 million is a relatively small proportion of the $7 billion overall economic cost of piracy. This figure is an estimate of the cost of trials and imprisonment in the four selected regions of Africa, Europe, North America and Asia. The report highlights that in attempting to find a legal resolution to the issue of piracy, in October 2011, the United Nations Security Council called on UN member states to criminalise piracy, asking member states to report to the Secretary General on the measures they have taken to criminalise piracy.

Certain countries such as the United States and Oman have sentenced pirates to life imprisonment, with South Korea sentencing one pirate to death for murder. In estimating the cost of prosecutions in 2011, the report calculated the average cost of pirate trials that were conducted, in addition to the cost of imprisonment for suspected Somali pirates during the year, accordance with economic development and prosecutorial costs. The cost of trials and imprisonment in Kenya and the Seychelles were not included, due to the fact that the relevant costs for these prosecutions are covered by funding from the UNODC Counter Piracy Programme and other international funding mechanisms.

According to a report released in 2011 by Jack Lang, the United Nations Secretary General’s Special Adviser on Legal Issues Relating to Piracy off the Coast of Somalia, more than 90 per cent of captured pirates will be released without prosecution. The report notes that over the previous few years 1,089 pirate suspects had been arrested for piracy and those individuals have either been tried or are awaiting trial in 20 countries, a figure which has risen from 10 countries in 2010. Lang therefore proposed a specialised extraterritorial Somali court system with its seat in Arusha, Tanzania based on an estimated cost of $2.73 and $2.33 for each following year.

In consideration of this, and as already discussed in this blog, criticisms as to the resources needed for a fully internationalised piracy tribunal, that may cost up to an estimated $100 million, are short sighted against the report’s figure of $7 billion for the overall cost of piracy. In an earlier post by Matteo Crippa, we indicated that the most relevant issue in evaluating the effectiveness of international prosecution was its real deterrent effect. In comparison to an overall figure of $7 billion, $100 million for an international tribunal, however costly in isolation is comparatively low. These disparate figures might also justify a substantial increase in funding for the current localised prosecutorial initiatives, which are similarly capable of meeting effective deterred goals. Whatever solution is chosen, it is clear that prosecutions have not been prioritised as a budgetary matter.

Conclusions

The 2010 Oceans Beyond Piracy report was widely referred to in piracy commentary. The updated and more accurate 2011 version has already been critiqued by various sources. When considering that protecting vessels through high insurance premiums, onboard guards and re-routing costs $7 billion in comparison to the $160 million Somali pirates receive in ransoms or the comparatively small $16.4 million spent on prosecutions and imprisonment, there is an obvious disconnect and disproportionality in dealing with this issue. There is an ever present argument that insurance companies, as well as Private Maritime Security Contractors (PMSCs), earn more from piracy than the pirates themselves, which is well supported by this report, which showed evidence that 99% of piracy costs are recurring. This means that they will be repeated every year and will only fluctuate if piracy itself reduces to the extent that it warrants a change in political and economic approaches to the problem.

The report therefore suggests that stakeholders need to reassess the long-term sustainability of the costs outlined. The fear and preventative economic investment in piracy however looks set to increase with incidents such as Somali pirates launching their first attack in territorial waters when they raised a vessel near the Gulf State of Oman. One particularly disturbing piracy trend is that pirates have begun to focus their attention on people rather than ships. There have been incidents where pirates release the ships, but keep the crew for ransom purposes. This has extended to pirates kidnapping hostages on land such as humanitarian aid workers and tourists in Kenya and Somalia.

While not quantifiable in economic terms, the human cost of piracy is higher than any economic figure given. Twenty four people were killed by pirates in 2011, but hostages were held for longer in order to negotiate higher ransoms, which the report states took an average of 178 days (or six months). Also forgotten are the deaths of the pirates themselves. Due to the economic disconnect between pirate ransoms and the overall economic cost of pirate deterrence, it is clear that a purely mitigating or preventative policy does not offer a solution to control or alleviate piracy. Neither the military nor shipping industry have been successful in stemming the problems and the more money that is invested does not seem to reduce the cost to human life. One option is to stabilise the situation on the ground in Somalia in political and economic terms. As the report notes, very little is spent on the root causes of piracy, suggesting a redirection of investments from short-term symptoms to long-term solutions.

 

The Legality of the SEAL Team 6 Rescue in Somalia

US Navy SEALs have rescued two foreign aid workers (one American and one Dane) deep within the territory of Somalia, killing 8-9 Somalis and perhaps capturing 3-5. This is not the first time the US has authorized deadly force against Somali criminals. In 2009, pirates took hostage the captain of the Maersk Alabama, Richard Phillips. A team of snipers from the Navy SEALs shot the captors from the deck of an aircraft carrier, killing the pirates and freeing Captain Phillips. There are significant differences, however, between the attack on the Maersk Alabama and the most recent attack mainly because the latter occurred within the territory of Somalia on land. The location of the capture and rescue, Galkayo, is divided between the break-away regions of Puntland and Galmudug and, according to the New York Times is at the edge of pirate-controlled territory. Most news organizations are referring to the Somali captors as “pirates” and it may be that the criminal organization that kidnapped and held for ransom these two aid workers has also perpetrated acts of piracy in the seas off the coast of Somalia. But the act of kidnapping in central Somalia is not an act of piracy. This has several implications.

First, what is the legal basis for the incursion into Somali territory? States have a right to capture and prosecute criminals for acts of piracy on the high seas and for armed robbery within a state’s territorial sea. Piracy, however, does not extend to acts without any connection to sea-based criminality. In contrast, for land-based incursions violating the territorial sovereignty of another state, prior assent is required. The U.S. raid of Osama Bin Laden’s compound in Pakistan was ostensibly justified by national self-defence in order to prevent future attacks against Americans which were in the process of being developed. But the criminals in Galkayo did not appear to be threatening the national security of the United States. They seek ransom money, and not some political objective. Therefore national self-defence would not provide a justification for the raid. Nonetheless, the areas of Somalia we are talking about are lawless and without effective governments. In these circumstances, it is doubtful the U.S. considered permission was required prior to invading the territory.

Second, what is the legal basis for the killing and capturing of these criminals? As a legal matter, the former is actually simpler to explain. The doctrine of personal self-defence sometimes extends to the protection of others. If it was determined that the hostages’ lives were in danger, it could justify the use of deadly force. However, news reports indicate the operation was intended to capture, not kill, the criminals in question. Therefore, what is the legal basis for the capture of these Somali criminals? This is actually the more difficult legal question. International treaty and customary law give states the right to arrest and prosecute suspected pirates for criminality on the high seas. Likewise, commercial ships have the right to defend themselves against violent attack. In contrast, yesterday’s rescue occurred on land and the law of piracy is inapplicable. In addition, no Somali law is readily apparent. However, the United Nations Convention against Transnational Organized Crime requires states parties to pass legislation prohibiting the commission of serious crimes involving an organized criminal group where the crime has transnational effects. (the U.S. is a state party, obviously Somalia is not). Likewise, there appears to be a developing consensus that kidnapping is a crime under customary international law with certain well-defined attributes. Therefore, the United States has a jurisdictional basis to prosecute these criminals as the victim was American and there is, arguably, substantive international law applicable in the territory of Somalia which prohibits and would permit a prosecution for kidnapping. Normally, a prosecution would require the U.S. to seek extradition from the suspect’s resident state. Here, where no sovereign exists, the U.S. could argue that it had no such duty. These are some of the arguments that might justify the arrest and detention of the Somali captors pending trial.

Apart from these legal questions is a more practical one: does this signal a new U.S. policy of using its armed forces to rescue American kidnapping victims throughout the world? Following the raid, President Obama issued a statement asserting, “The United States will not tolerate the abduction of our people, and will spare no effort to secure the safety of our citizens and to bring their captors to justice.” This statement must be narrowly construed. Although the U.S. State Department does not publicize the number of Americans kidnapped and held for ransom, it is clearly a widespread problem. The expense and risks of sending in a SEAL team anytime an American is kidnapped would be extraordinary. The Somali context is exceptional in this case because there is no sovereign with whom to negotiate. In addition, this may be a shot across the bow to organized criminal gangs in Somalia. The hope will likely be that this incredible rescue will have a deterrent effect that would diminish the need for similar missions in the future. It could also serve as leverage in ransom negotiations, discouraging captors from becoming too greedy in their demands. On the other hand, there is a concern that the apprehension and killing of these transmaritime criminals will lead to a further escalation in violence.

UN Delays Action While National Prosecutions Continue

The UN Security Council adopted a Security Council Resolution relevant to Jack Lang’s report.  As to efforts to prosecute pirates it included the following language:

[The UNSC] Decides to urgently consider the establishment of specialized Somali courts to try suspected pirates both in Somalia and in the region, including an extraterritorial Somali specialized anti-piracy court, as referred to in the recommendations contained in the report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia Mr. Jack Lang (Annex to document S/2011/30), consistent with applicable human rights law, and requests the Secretary-General to report within two months on the modalities of such prosecution mechanisms, including on the participation of international personnel and on other international support and assistance, taking into account the work of the CGPCS and in consultation with concerned regional States and expresses its intention to take further decisions on this matter (emphasis added)

Billed as adopting the recommendations set out in Jack Lang’s report, the resolution calls for another report within two months on the modalities on setting up an anti-piracy court outside of Somalia. The resolution also attempts to address some of the underlying causes of piracy by “[requesting] the Secretary-General to report within six months on the protection of Somali natural resources and waters, and on alleged illegal fishing and illegal dumping, including of toxic substances, off the coast of Somalia” since “allegations of illegal fishing and dumping of toxic waste in Somali waters have been used by pirates in an attempt to justify their criminal activities.” So…the wait for a comprehensive solution continues.

In the meantime, national prosecutions fill the void.  In what appears to be the first case of its kind, the U.S. has arrested a Somali on Somali soil, alleging he was involved in negotiating a ransom of hostages. This is an attempt to prosecute not only pirates who execute attacks, but also those who finance, plan, organize, or unlawfully profit from pirate attacks. This prosecution will provide some interesting legal precedent as to the definition of piracy. Did this man finance, plan or organize the attacks? or was he just another middleman conversant in technology and English? In any event, it will be interesting to see if the FBI attempts to leverage this prosecution into higher levels of the criminal organization.

Four Americans Dead – What Went Wrong?

Jean and Scott Adams - Owner's of the Quest hi-jacked by pirates

The killing of four Americans at the hands of Somali pirates has certainly brought the issue of piracy into full view of the American public. Until now, there has been a marginal increase in the price of goods due to insurance pay-offs in the form of ransoms. But it is hard to overestimate the effect of the confluence of events leading up to the death of four Americans and a significant shift in American policy. If the Adams had accepted the offer of yachting friends to ship their yacht through the Red Sea to avoid the threatened seas; if they somehow sailed through the Indian Ocean unscathed, or if the hostage negotiation had been successful, the U.S. would not now be considering increased military intervention and potentially attacks on pirate bases in Somalia.

This last factor, the failed hostage negotiation, not only serves as a cautionary tale, but highlights the significant gaps in our understanding of Somali piracy. Although generally outside the purview of this law blog, I spoke with a friend of mine, Dr. Laurie Charlés, who has published a book on hostage negotiation and she has some interesting insight into the dynamics of hostage negotiations.

In the case of the four Americans killed by pirates, a New York Times report raised questions as to the decision to detain the Somali pirate negotiators apparently because the Americans thought the Somalis were not serious. Dr. Charlés first notes that the nature of negotiation is incredibly complex. The nuanced communication practices are impossible to capture in any substantive form by a reporter or journalist writing.  Therefore, it is a bit of arm-chair quarterbacking to criticize this decision.

That said a lack of a cohesive policy on the part of American negotiators may have contributed the failed negotiation. Dr. Charlés notes that the involvement of more than one agency & jurisdiction can lead to problems. In this situation there was undoubtedly more than one negotiator. These negotiators likely agreed on the theory of negotiation but the application of this theory is not always obvious or successful. A lot of these lessons were learned in the 70s and 80s in negotiating with airline hijackers in addition to the negotiations in the Achille Lauro incident. Dr. Charlés notes that in the beginning of the field of hostage negotiation, many hostages died because of in-fighting in real time between different jurisdictional groups with competing ideas on when or if the use of force was appropriate. The biggest and best example is the negotiations with the Branch Davidians in Waco, Texas which resulted in 76 deaths, including more than 20 children.

What is certain is that additional hostages will be taken by Somali pirates, added to the 700-800 who are estimated to be held by them. The inherently multi-jurisdictional nature of piracy will lead to different negotiators and militaries with different ideas on how and when the use of force is appropriate. In order to avoid future bad outcomes, these competing philosophies will have to be resolved.