New Article: Pirate Accessory Liability

October 6, 2012 by Leave a comment

In view of the debate concerning the prosecution of pirate leaders and financiers, I have posted a new article on SSRN entitled: Pirate Accessory Liability – Developing a modern legal regime governing incitement and intentional facilitation of maritime piracy. I attach the abstract for your information:

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of the UNCLOS or the travaux préparatoires and leaving domestic jurisdictions to fill these gaps risks creating a fragmented, and potentially contradictory, legal framework. On the contrary, resort to general principles of law ascertained by international criminal tribunals creates a predictable, and consistent, understanding of these modes of responsibility. This article shows how the jurisprudence of the ad hoc criminal tribunals fills the gaps in the law related to incitement and intentional facilitation of piracy. It further shows how these modes of responsibility are particularly suited to charges of financing pirate organizations or inciting children to participate in pirate enterprises.

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In Brief: the Journal of International Criminal Justice – Symposium on Somali Piracy

September 27, 2012 by Leave a comment

The Journal of International Criminal Justice (JICJ) stepped out of its international criminal law-grounded comfort zone dedicating part of its latest issue to a symposium on the rise of piracy off the coast of Somalia from a variety of legal and non-legal perspectives. The symposium includes important contributions, ranging from an overview of counter-piracy initiatives undertaken by the international stakeholders, the local context of the historical and social background to piracy in Somalia, the role of domestic courts worldwide in prosecuting pirates, the key legal issues and challenges to the use of private military companies as well as anti-money laundering practices that could be used to counter Somali piracy. In particular, in his contribution Douglas Guilfoyle describes the international law governing the seizure and prosecution of suspected pirates, critically evaluating past proposals for international or internationalized piracy courts.

An abandoned hijacked Taiwanese fishing vessel in Hobyo, Somalia – Courtesy AP

The symposium is currently available only upon subscription.  In consideration of its fascinating subject matter, we hope that at least some parts of the symposium will soon be made available free of charge through JICJ’s “Editor’s Choice” section.

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Update: Le Ponant Trial Judgement

August 20, 2012 by Leave a comment

Our readers might remember Valerie Gabard’s guest post on the recent trial for the 2008 hijack of the French luxury yacht Le Ponant and the kidnap of its crew. After four years of pre-trial detention, two of the six Somali accused were acquitted, while the four others were convicted and sentenced to four to ten years of imprisonment.

We have now obtained the trial judgement in the case, issued by the 2nd Section of the Court d’Assise of Paris. Contrary to initial speculations, it seems that the Prosecution have decided not to appeal the Court’s decision, which is therefore final. Unfortunately, the judgement won’t shed much light on the Court’s motivations. In keeping with French practice for criminal trials, the judgement, at least when looked at from the perspective of international justice standards, is scantily reasoned, containing little or no more than the accusations against the accused, a recall of the main trial procedural steps and the court’s verdict.

It has to be recalled that the accused were charged with kidnapping, illegal confinement and organized gang theft in pursuance of Articles 224-6 of the French Criminal Code but not with a specific offence of committing piracy due to the temporary absence, in 2008, of a specific definition of piracy in the French criminal system. In the meantime, a new Anti-Piracy legislation was introduced in January 2011.

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A High Seas Requirement for Pirate Facilitators Under UNCLOS?

August 18, 2012 by Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”

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

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

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

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

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

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

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

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Negotiator Sentenced to Multiple Life Terms – SCOTUS on the horizon

August 15, 2012 by Leave a comment

Defendant Mohamed Salid Shibin appears in court

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

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

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

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

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

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

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