A Globalized System of Criminal Justice

Piracy and armed robbery incidents reported to the IMB Piracy Reporting Centre during 2011. Map courtesy of International Chamber of Commerce.

Criminal Justice for pirates has become a truly global affair, utilizing diverse state resources to funnel pirates through a limited number of regional states in East Africa back to their homeland of Somalia. More specifically, the UN’s preferred option for prosecuting Somali pirates will be national prosecutions in several East African states (Seychelles, Mauritius, Kenya, Tanzania) as well as in several semi-autonomous regions of Somalia (Somaliland, Puntland).  Prosecution in European states and the US would remain a backup plan. But this is only one piece of the criminal justice apparatus. Police functions in the Indian Ocean will continue to be performed by a combination of naval coalitions such as NATO and EUNAVFOR and by individual naval states with interests in commercial shipping through the high-risk piracy corridor (including the motley crew of the U.S., India, China, Iran, and others).  At the other end of the criminal justice chain is the prison system where there is currently a bottleneck.  In this regard, the United Nations Office of Drugs and Crime is in the process of refurbishing and building new prisons in Somaliland and Puntland to house convicted pirates.

This solution has several benefits as compared with the other solutions outlined by Jack Lang in January 2011. Prosecuting pirates in multiple regional states creates redundancies, so that if one or more courts prove incapable of continuing prosecutions, other options remain available. For example, Kenya recently stopped all of its piracy prosecutions due to a High Court decision ruling Kenyan courts did not have jurisdiction over piracy offences. Likewise, the Seychelles recently refused to accept pirates from a Danish ship because there was no guarantee that the pirates, if convicted, could be sent back to Somalia (for lack of prison space) and because the Seychelles’ limited judicial capacity. In situations such as these, other states might serve as back-up solutions so that prosecutions could be directed elsewhere.

Funneling Pirates Back to Somalia

Another advantage of this proposed solution is that it has the benefit of building local capacity. Instead of directing resources into a foreign institution, providing support to local courts and local prosecutors promises to increase the capacity of regional state institutions to address criminal justice issues beyond piracy.

The report also raises hopes that the financiers and organizers of piracy can be adequately addressed by East African states. In relation to Mauritius and Seychelles in particular, the report highlights the capacity of these states to prosecute inchoate crimes such as conspiracy, incitement and attempts to commit piracy. The UK and the Netherlands are funding a Regional Anti-Piracy Prosecutions Intelligence Co-ordination Centre (RAPPICC) in Seychelles, in part, for this purpose. This capability will be crucial in order to bring to justice those individuals who organize pirate enterprises, but never step foot on board a pirate vessel.

There will be heavy reliance on prisons in Puntland and Somaliland

However, the report and the plan are lacking in several respects.  First, the cost savings of this plan have likely been exaggerated. There is no final accounting provided in the UNSG report. But a cursory survey of the various costs associated with refurbishing courtrooms, providing expert assistance, hiring additional judges and prosecutors, conducting trainings and, especially building prisons, shows a quickly rising price tag. Combine this with additional unspecified costs that would likely accompany this proposal such as rule of law, general training, and governance projects and the costs may actually be about the same as a hybrid tribunal such as the Special Court for Sierra Leone or the Extraordinary Chambers in the Courts of Cambodia (about $40 million each annually). In any event, the proposed solution’s budget is modest compared with the sums that are currently being dumped into unsustainable solutions that fail to address the root of the problem.

In addition, the UNSG report apparently hazards some guesses as to the potential of its proposed course of action. Despite the different conditions in each country or region, the report indicates that Somaliland, Puntland, Kenya, and Mauritius will be capable of performing piracy investigations in 20 months and within two years would be able to prosecute 24 cases of 10 defendants each. These are good benchmarks to evaluate the success of these projects.  But it is hard to believe that they are realistic assessments of local conditions. The report evaluates the local capacities of each state/region indicating the number of prosecutors and judges in each. But it fails to compare these numbers of professionals to the actual populations that they must serve. Three hundred and five (305) Prosecutors in Tanzania seems to be a significant number compared to the 36 prosecutors for the whole of Somaliland. However, Tanzania’s population is 43.5 million and the population in Somaliland appears to be around 3.5 million. Therefore, the number of prosecutors per capita in Somaliland (1/10,000) is higher than in Tanzania (1/140,000). In addition, only 10 Tanzanian prosecutors would be in charge of piracy prosecutions. Likewise, the report fails to take into consideration the caseload of the respective prosecutorial groups that would be responsible for piracy prosecutions (i.e. the number of cases each attorney is responsible for, thereby dictating how much time they would have to devote to piracy cases). This suggests the projected capacities are not based upon a realistic assessment of current capacity.

More importantly, the report acknowledges that it was unable to predict with any accuracy the number of piracy cases that would likely proceed to trial. That is, how much prosecutorial and penal resources will likely be required in the next few years.  Due to the volatility of Somalia, the changing tactics of pirates and of commercial vessels responding with various self-defence measures, an accurate assessment in this regard is quite difficult. However, the report suggests that anticipating the numbers of piracy suspects likely to be apprehended at sea and transferred to regional states for prosecution was not possible because no information was available as to the reasons for the release of piracy suspects from the numerous states conducting naval anti-piracy missions in the Indian Ocean.  It is unclear why the UNSG was unable to obtain this information from various member states of the United Nations. But it has certainly left a conspicuous gap in the report’s findings.

Finally, the report ends without any recommendations as to how to prevent recidivism, including programs to retrain Somali prisoners and integrate them back into the community. In this regard, the proposed solution is short-sighted, enabling the relocation of pirates back to Somalia, but providing no real long-term preventative measures. The only permanent solution to piracy is a stable and economically prosperous Somalia. Hopefully, the London Conference can initiate positive reforms in this regard as it is widely accepted that the solution or piracy resides on land, and not at sea.

Upcoming event: Panel on Establishment of a Special Anti-Piracy Tribunal: Prospects and Reality

As part of the ABA Section of International Law, 2012 Spring Meeting in New York, 17-21 April 2012, there are two panel discussions that may interest readers. The first will discuss the legal issues surrounding the prosecution of piracy. For further background on the Kenyan High Court decision see here. The second panel will take a look back at one of the precursors to modern international criminal law, the Nuremberg trials.
Establishment of a Special Anti-Piracy Tribunal: Prospects and Reality
Tuesday, 17 April 2012, 4:00 pm – 5:30 pm

Two hundred years ago, piracy was recognized as the first “international” crime. Recently, piracy has re-emerged as a major problem for international commerce. In the last two years, Somali pirate attacks off the Kenyan and Somali coasts have caused over $25 billion in losses. Although the UN Security Council authorized the international community to capture Somali pirates and turn them over to Kenya for prosecution, Kenyan courts have struggled with the novel legal issues presented before them. A Kenyan High Court Judge recently ruled the Kenyan Piracy Court cannot obtain jurisdiction over captured pirates because Kenyan law lacks the requisite statute granting such jurisdiction. Prosecuting pirates involves knowledge of international treaties, criminal law, maritime law, and unusual evidentiary gathering rules, which is challenging and even dangerous. This panel will provide a basic understanding of these complex legal issues and how the many parties involved are trying to resolve this continuing international dilemma.

Moderator: Anthony Colleluori, Anthony Colleluori & Associates, PLLC, Melville, New York

Speakers: Sandra Hodgkinson, National Defense University, Alexandria, Virginia

Rosemelle Mutoka, Kenya Piracy Court  Chief Judge, Kenya

Michael Scharf , Case Western Reserve University, Cleveland, Ohio

The Evolution of International Criminal Law: Problems and Perspectives

19 April 2012,  4:30 pm – 6:00 pm

A conversation with Ben Ferencz, the sole surviving American who served as a prosecutor at the Nuremburg trials of Nazi war criminals. Ferencz was Chief Prosecutor for the United States in The Einsatzgruppen Case, which the Associated Press called “the biggest murder trial in history.” Twenty-two defendants were charged with – and convicted of – murdering over a million people. In addition to his wartime and Nuremburg experiences, Ferencz will discuss Nuremburg’s implications for the rule of law and the international criminal court.

Program Chairs & Moderators: Michael H. Byowitz, Wachtell, Lipton, Rose & Katz, New York, New York

Don Ferencz, The Planethood Foundation, New York, New York

Speaker: Ben Ferencz , New Rochelle, New York

UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part II)

This is the second part of an earlier post discussing the UK Foreign Affairs Committee Report on piracy off the coast of Somalia.

Regional and Local Prosecutions of Pirates (paras 74-110)

The trial and prosecution of pirates is also an extremely relevant, and pressing, topic. As noted in the Report, the peculiar features of modern day piracy, particularly in the Gulf of Aden and the lack of cohesive governance in Somalia, create several practical difficulties, including the apprehension, detention on board and transfer of suspected pirates. One of the primary purposes of policing activities through naval operations is, indeed, its deterrent effect on pirate attacks rather than the arrest and prosecution of the perpetrators.

The collection of sufficient evidence to secure successful prosecutions is particularly problematic, as we noted in a recent post. It should be remarked how any evidentiary assessment on whether to bring alleged perpetrators to justice should, ordinarily, be best placed in the hands of judicial authorities as neutral fact-finders rather than subject to the prelimary evaluation by the naval authorities upon the capture of suspected pirates. Moreover, the Report correctly points out how such assessment could benefit from modern technological means already available to the naval authorities, namely video, radar and satellite recording. In addition, remote testimony via video or audio link is recommended, particularly when victims are located in third countries or, more likely, have already set sail.

Modern international law asserts the possibility to exercise universal jurisdiction over piracy prosecutions. However, as one expert who gave evidence before the Committee put it, the obstacle to prosecution is not identifying the appropriate jurisdiction, but rather the inability, and unwillingness, to prosecute. In addition, the surge of modern piracy and armed robbery at sea has exposed the current inadequacy of national laws, including in the UK, against piracy. For those operating within the field of international criminal prosecutions, the phenomenon is not new. Several states suddenly found themselves incapable to put Genocide suspects on trial before municipal courts due to the inadequacy of their national laws in enacting the provisions of the Genocide Convention.

We have also discussed whether the response to modern piracy should contemplate a revision of the existing international counter-piracy legislation and mechanisms, in particular because it appears that current treaties have difficulty in addressing the difference between political and purely-financial motivations of pirates attacks, or whether attempted attacks are also punishable. Interestingly, as noted in the Report, the IMO has taken the view that “the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate”. Some concerns remain, however, particularly on the practical implementation and effectiveness of these mechanisms.

The main recommendation contained in the Report with regard to options for the investigation and prosecution of pirates is therefore the rejection of the establishment of a specialized Somali tribunal, initially recommended by the UN Special Adviser to the Secretary General Jack Lang as one possible alternative. This option would have established a court outside of Somalia in a neighboring state (most likely Tanzania) with funding and administration from the international community, but would employ Somali judges applying Somali law. There appear to be a number of compelling legal complications against such court, including its legality vis a vis the Somali Constitution. The UK Report rejected this proposal stating:

 “the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.”(para. 92)

Among the main arguments in support of this conclusion are also the possible high costs of an extra-territorial institution, with a tentative figure of $100 million a year. This is not convincing, particularly considering the lack of clarity at the basis of this figure as well as the present estimates of the global costs of piracy, which already identified high costs from the current prosecutions as well as a cost of ransoms alone capping over $130 million per year. In addition, this figure would remain a fraction of the overall economic costs of piracy. It must be acknowledged, however, that an extra-territorial court, financially supported by international organizations, might not be able to promptly contribute as an anti-piracy deterrent and develop effective outreach capabilities within the turned-pirate population in and around the Gulf of Aden.

The rejection of the UN-funded option reflects a gaining trend to favor specialized piracy prosecutions within the area where the alleged attacks took place, counting on a much stronger deterred effect than trials taking place thousands of miles away. Local prosecution projects have already taken shape in Kenya, Mauritius and Seychelles, among other countries in the region. In addition, a small number of historic trials were also held in the US, Germany and the Netherlands, mainly because the alleged pirates were captured by the naval forces of these countries, or due to a nexus between the piracy acts and these latter.

However, while piracy prosecutions in the UK are still contemplated, albeit in limited circumstances, in the Report, the support expressed therein for local or regional anti-piracy courts also present several difficulties which should be carefully weighed. Requesting the help of regional states to prosecute pirates in their courts does not obviate the need to provide support to the various local authorities in the form of financing, training, monitoring and oversight extending not only to the mere prosecutions and trials of suspected pirates, but also to transfer, investigation, security, procurement and infrastructures as well as pre-trial and post sentence detention. Indeed, the fate of a recently arrested group of alleged Somali pirates by the UK Royal Navy after both Kenya and the Seychelles have refused to detain them because “their court systems are swamped”  is a rather timely reminder of some of these difficulties. As the Kenyan government stated last year when it refused to continue piracy prosecutions, ““We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

An Arms Race at Sea

The vulnerability of commercial ships to piracy and armed robbery at sea is caused in part by the weak capacity of East African navies and coast guards. The inability of the Kenyan police and the Kenyan Navy to prevent the kidnapping of a UK national off the island of Lamu brings this issue into relief.  In that incident, “The police sent a boat to Manda [near Lamu] to investigate, but soon returned to Lamu to gather reinforcements — which was not a simple task. Although Lamu’s police have three boats, each equipped with twin 115-horsepower outboard engines, two of the boats were out of commission that morning. Instead officers had to hire one 140-horsepower craft from a local captain and requisition another from the Kenya Wildlife Service.“  The Kenyan Navy also had trouble responding: “The Kenyan Navy had sent out a small boat to intercept the kidnappers, but it struck a coral reef and capsized.”

Failures such as these have resulted in two related developments. One, a call to build up naval and coast guard capabilities of states in regions affected by piracy and two, an increasing acceptance of armed guards on board commercial ships to fill the void of naval capacity.

First, there has been a call to build up naval capacity of littoral states. In his July 2011 report concerning the modalities for establishing courts to prosecute pirates, the UN Secretary General discussed the possibility of an extraterritorial Somali court based in Tanzania. He noted, “Tanzania wished to communicate to the international community its willingness to assist under the right conditions. Tanzania’s primary concerns were security and the need to reach international standards. He indicated that his Government had collected views from the judiciary, prisons authority and navy on what would be needed to achieve these elements. The prisons needed sufficient facilities and the navy needed a ship to defend the coast.”

Similarly, Tayé-Brook Zerihoun, Assistant Secretary-General for Political Affairs said the international community should consider ways of developing Somali capacity to deal with piracy on land and waters close to shore through the establishment of a coast guard.

The phenomenon is not limited to East Africa.  Both Ghana and Benin are in the process of acquiring naval boats to patrol their waters.  Ghana has ordered two 46 metre patrol vessels from China’s Poly Technologies Incorporated as part of a larger drive to modernise its navy. The vessels will be used to combat piracy and increase maritime security off Ghana’s coast once they are delivered before year-end. Likewise, China provided a grant of four million euros in September to Benin for the purchase of a patrol boat.

Without question, littoral states have the right pursuant to international law to protect their territorial waters. These states may also have rights to patrol in the exclusive economic zone (extending beyond territorial waters) if established pursuant to the UN Convention on the Law of the Sea. But the effects of building up navies and coast guards will be felt long after maritime piracy and armed robbery at sea have been neutralized. The common enemy of piracy has brought together strange bedfellows (for example, the joint naval operations in the Indian Ocean including China, the United States, and India). However, once the common enemy is vanquished old rifts will likely reappear. In the case of the Gulf of Guinea in particular, where the coastal and territorial waters are resource rich, the build up of navies may create post-piracy tension.

The second obvious trend, is the build up of small arms on ships.  The October 2011 Secretary General Report to the UN notes that a combination of new tactics have reduced the success rate of pirate attacks in the Gulf of Aden and Indian Ocean. He notes, ”As of early October 2011, 316 people and 15 vessels were being held hostage. This compares with 389 people and 18 vessels held in October 2010. The reduction was achieved through a combination of actions by naval forces and the improved implementation of the IMO guidance and industry-developed Best Management Practices for Protection against Somalia-Based Piracy. That included better application of self-protection measures and situational awareness by merchant ships. Naval forces reported that in the last year, 75 per cent of attacks were warded off by military intervention, while this  year, merchant ships achieved the same success rate by taking robust action, including through the use of fortified safe rooms.”

While the Secretary General downplays the effect of private security contractors, PMSCs have obviously had an impact on reducing the success rate of pirate attacks. As a result, the International Maritime Organization, and several states, including the UK, India and the US have become increasingly tolerant of private military contractors being hired to protect commercial ships transiting through high risk areas.

“The [IMO] guidance includes sections on risk assessment, selection criteria, insurance cover, command and control, management and use of weapons and ammunition at all times when on board and rules for the use of force as agreed between the shipowner, the private maritime security company and the Master. The interim recommendations for flag States recommend that flag States should have in place a policy on whether or not the use of [PMSC] will be authorized and, if so, under which conditions. A Flag State should take into account the possible escalation of violence which could result from the use of firearms and carriage of armed personnel on board ships when deciding on its policy.  The recommendations are not intended to endorse or institutionalize the use of [PMSCs] and do not address all the legal issues that might be associated with their use onboard ships.”

Likewise, following on India’s issuing of guidance to permit PMSCs on-board commercial ships, Prime Minister Cameron has said he wishes to legalise armed guards on ships passing through dangerous waters, such as the Red Sea and the Gulf of Aden. Although the United States has not gone so far as to create new laws in this area, it has started to privately encourage the use of PMSC’s for ships transiting the high-risk corridor.

The increased use of PMSCs was perhaps unavoidable in this area. But, as pirates become increasingly desperate to find available targets, and commercial shippers resort to armed escorts, an escalation in violence will ensue.  This will lead to increased risk to the lives of hostages and seafarers as well as the valuable cargo transiting these waters.

Kenyan Intervention in Somalia Will Have Minimal Effect on Piracy

Kenya has entered into Somali-territory and is making slow progress northward. As yet, it is not entirely clear what military objective Kenya seeks to obtain. At its outset, the Kenyan government justified the incursion based upon recent kidnappings of foreign tourists and aid-workers, asserting that they were all the work of al-Shabaab. However, It appears that only the latter attack on Spanish aid workers for the charity MSF can be attributed to al-Shabaab. While the other two attacks on tourists near Lamu were likely the work of pirates/armed bandits. More recently, sources in the Kenyan military have asserted:

Kenya’s military says it plans to remain in Somalia until the Shabab’s capacity is “reduced” and Somalia’s weak, American-backed transitional government is able to function.

The more immediate goal appears to be to take the port town of Kismayu, one of Somalia’s biggest towns and a major money-earner for the Shabab. The United States and France have joined in this fight, emboldened by the success of using air power to assist foreign ground troops in Libya. The Kenyan incursion into Somalia falls within the U.S.’s fight against the Shabaab which until now was limited to targeted drone strikes in the Shabaab controlled areas.

Although principally a military intervention against the Shabaab, this is also an opportunity for Kenya to root-out pirates based in the south of Somalia and to discourage any further attacks on tourist-areas on its coast. While the Shabaab was initially hostile to pirates, asserting piracy was contrary to Islam, it appears Shabaab has become more tolerant of pirate gangs in view of the revenue they can produce. They are not working together, but appear to have reached a détente.

It is possible that Kenya’s intervention will prevent further pirate attacks in its coastal tourist areas. However, the vast majority of pirate attacks at sea originate in the breakaway region of Puntland, far to the north of the Shabaab controlled areas. Therefore, Kenya’s incursion into Somalia, while perhaps limiting attacks on tourists in Lamu, will not have any meaningful impact on attacks in international waters which have so affected commercial shipping.

Sophisticated Planning Operations of Somali Pirates

A newly-released report by a UN agency (UNOSAT) statistically analysed 2005-2009 Somali piracy attacks and reached some surprising conclusions which contradict widely-held assumptions about the reactivity of pirates. It concludes:

• The dramatic expansion of piracy in the Indian Ocean was initiated during the spring of 2008 – predating major international naval patrols;
• Falling piracy success rates may be partially the result of a statistical bias due to changes in incident reporting over time, and may reflect a naturally occurring decline resulting from more aggressive pirate rules of engagement and a large influx of untrained pirate recruits;
• A significant majority of failed attacks on merchant vessels occurred without any direct international naval assistance;
• Counter-piracy training, technology and tactics of merchant vessels has likely had the greatest impact on improved maritime security levels and falling hijacking success rates in the Gulf of Aden

Many have assumed that the increasing use of international naval assistance (such as the EU NAVFOR Atalanta mission) have reduced the success-rate of pirate attacks. The UNOSAT report finds that pirate activity had moved away from the Gulf of Aden (formerly the primary targeted area) and into the Indian Ocean, before the international community created a safe-travel corridor and protected convoys in the Gulf. This suggests a level of sophistication and planning on the part of pirate organizations. Before the international community could react, Somali pirates were already picking their next targets.  As the report puts it:

The more convincing interpretation of the dramatic spread of piracy into the vast expanse of the Indian Ocean was that this was a deliberate strategy planned and initiated not in reaction to anti-piracy patrols in the Gulf, but as part of a hugely successful piracy expansion program – most visibly and successfully demonstrated at that time in the Gulf.

The report also points out that falling success rates do not necessarily mean success in the fight against piracy. For the actual number of successful pirate attacks increased from 2008 to 2009 despite a reduced rate of successful attacks. Faced with more difficult conditions, pirates simply initiated more attacks. The report suggests that the higher number of attacks required use of less-experienced recruits and this may partly account for the reduced rate of successful pirate attacks.

One final point identified by the report is the correlation between a lull in attacks with the seasonal monsoon from May/June through mid-September. It is possible that the recent attacks on land-based tourists in Kenya were an attempt to increase ransom-revenues during the monsoon – when attacks at sea were not possible. Always looking for new opportunities, tourists located less than 100km from the Somali border must have appeared easy targets, especially considering attacks have been attempted as far as 1600 nautical miles from the Somali coast.

Although this report is not fully up to date, the implications are that pirate criminal organizations have a sophisticated planning apparatus, in which shipping lanes, vulnerabilities, sea conditions, and potential ship defences are all taken into consideration. It also suggests that pirates are proactively seeking new targets. This explains why countries far to the south, such as Mozambique and South Africa, are considering the potential of attacks in their own waters.

Kenyan Ready to Start Hearing Piracy Cases Again?

In November 2010, the Kenyan High Court in Mombasa ruled that Kenyan courts did not have jurisdiction to try the crime of piracy. As I have previously noted, the case followed on the the Kenyan Foreign Minister’s assertion that, “We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.” The Kenyan Director of Public Prosecutions, is now appealing the High Court decision. Special Prosecutor Patrick Kiage asserts that Kenyan courts derive their jurisdiction from international law, which declares piracy an international crime and that “Under international law, suspected pirates can be charged in any country where they are captured.”

The timing of this appeal is striking as it follows two separate attacks on tourists near Kenya’s border with Somalia, potentially devastating Kenya’s tourist industry. The two recent attacks near Lamu, Kenya (see map) were committed on Kenyan territory. Therefore, even if the High Court’s ruling were to stand, the acts could be prosecuted as murder, kidnapping, armed robbery, assault, or other such crimes under Kenyan national law. Nonetheless, as attacks affect more than just commercial shipping interests (which are in any case insured) and start to affect economic interests closer to home, Kenya will have more of an incentive to advertise its diligence in prosecuting pirates, whether for attacks in its own territory or in international waters.