Intentional Facilitation and Commission of Piracy as part of a Joint Criminal Enterprise

Defendant Ali Mohamed Ali, Source: Foxnews

In the U.S. government’s efforts to ramp up piracy prosecutions to include pirate kingpins, several cases of mid-level negotiators are working their way through the courts. We discussed one such case here. Another such prosecution recently met some setbacks when a U.S. District Court ruled in U.S. v. Ali that conspiracy to commit piracy was not a cognizable crime and further limited the application of intentional facilitation of piracy to acts committed on the high seas. See alsohere. The latter issue was apparently moot at the outset since the prosecution alleged that the negotiator was on the high seas when he intentionally facilitated the acts of piracy. However, in a contentious hearing last week, it became apparent that the Accused only spent about 25 minutes on the high seas and that his criminal conduct may not have occurred in that time frame. Therefore the high seas issue is now central to the outcome of the case. The Prosecution has signalled its intent to file an interlocutory appeal and the Judge has ordered that the Accused be released on bail, noting misrepresentations by the prosecution on this issue. In my view, the conspiracy ruling was correct, but intentional facilitation was improperly limited to conduct on the high seas. This latter error would impede future prosecutions of pirate leaders in U.S. courts.

It should be made clear that U.S. courts that have addressed the issue in the last several years have uniformly concluded that although the U.S. is not a party to the U.N. Convention on the Law of the Sea, this treaty contains the definition of piracy under customary international law which is incorporated by the U.S. piracy statute (18 USC 1651). Therefore, piracy is defined in the U.S. purely by reference to international law, and not domestic U.S. law. See here for further background.

In its 13 July Decision in U.S. v. Ali, the Court held that the piracy statute requires that intentional facilitation occur on the high seas. See Memorandum Opinion at 17. I disagree with this interpretation of UNCLOS for several reasons. First, a plain language reading of UNCLOS does not impose a requirement that inciting or intentionally facilitating an act of piracy occur on the high seas. Article 101(a)(i) of UNCLOS defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends […] on the high seas […]” Intentional facilitation of such an act of piracy appears in subsection (c) of Article 101 which does not include the requirement that the act occur on the high seas. In other words, the illegal act of violence or detention must occur on the high seas, but the facilitation need not occur there.

The U.S. piracy statute could create some confusion as it specifically refers to piracy committed on the high seas which might be interpreted to extend the high seas requirement to intentional facilitation. (See 18 USC 1651 which provides in full, “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.”) However, the reference to piracy on the high seas in 18 USC 1651 is redundant. By definition under customary international law, acts of piracy (though not incitement or facilitation) must occur on the high seas. The reference to acts on the high seas in 18 USC 1651 was only meant to emphasize that conduct committed in the territorial waters of another state would not constitute piracy (such conduct is instead robbery at sea, solely within the purview of the littoral state). It is not at all clear that Congress would intend to modify the otherwise settled view of the law of nations. Therefore, to impose the high seas requirement on subsection (c) of UNCLOS (pertaining to intentional facilitation), which does not appear in the plain language of the treaty, would be contrary to the U.S. Supreme Court’s Charming Betsy canon (whereby a statute should be construed not to violate international law).

Furthermore, restricting intentional facilitation of piracy to crimes perpetrated wholly on the high seas is not necessary to protect the sovereignty of states where pirate kingpins may reside. The piracy statute only provides personal jurisdiction over those who are “afterwards brought into or found in the United States.” If a pirate kingpin has negotiated a ransom from the territory of another state, the U.S. must request extradition through the usual means prescribed by international law. For all of these reasons, the high seas requirement should not be added to the crime of intentional facilitation of piracy.

As to the District Court’s second holding, the decision to dismiss the conspiracy to commit piracy charge appears well-founded. However, it is worth considering whether other forms of responsibility, firmly established in customary international law, might support the criminalization of the conduct in question. For example, commission has been interpreted by the ad hoc tribunals (ICTR, ICTY, SCSL, STL) to encompass the form of responsibility referred to as joint criminal enterprise (JCE) where there exists (1) a plurality of persons; (2) a common plan, design or purpose which amounts to or involves the commission of a crime and (4) the accused’s participation in the common plan. Of course, the tribunals did not have competence to consider charges of piracy. However, similar forms of accessory liability are found in numerous domestic legal systems and piracy prosecutions in Seychelles have been successful on a theory of accomplice liability akin to JCE. See here and here. This mode of responsibility has not been considered by any U.S. court in a piracy case.

Jama Idle Ibrahim, sentenced last year to 25 years for his role in the same attack, will be a government witness against Ali.

Apart from the jurisdictional issues, the ultimate question in this prosecution is whether negotiators acting as middlemen between pirate hostage-takers and those seeking their release “intentionally facilitate” piracy pursuant to UNCLOS. The answer will depend on the factual circumstances and how the mens rea of facilitation is construed. The drafters of UNCLOS limited facilitation by requiring that the accused intentionally (not merely negligently or recklessly) facilitated the piratical act. This suggests not only that the Accused must intend to support the illegal act of violence or detention, but also that the facilitator must share the pirate’s intent to commit the act “for private ends” (i.e. for personal enrichment or other non-political purposes). Involvement in negotiations to release the hostages for humanitarian reasons would not satisfy this mens rea requirement. Elsewhere, Professor Kontorovich suggests that intentional facilitation cannot occur after an act of piracy, but must have occurred prior to it. But if the piratical act was committed with the pre-formed intent to hold hostages for ransom, then the completed piratical act would not have been possible but for the intervention and assistance of a negotiator to complete the transaction. If a negotiator also possesses the intent to personally enrich himself, the conduct would appear to fall within Article 101(c) of UNCLOS.

One final word about the fairness of this prosecution. Depending on the circumstances of a case, the negotiation of a ransom (or the financing of piracy for that matter) may appear to be less reprehensible than the acts of violence committed against seafarers on the high seas. Such is the dichotomy between low-level perpetrators and their white-collar sponsors. If a mandatory life sentence, as is imposed by the U.S. piracy statute, is inappropriate in some cases involving accomplice liability, this is a matter of charging strategy best left to the prosecutor. There are a number of other non-piracy statutes in the prosecutor’s repertoire that could be put to use. But it is an overbroad statement to assert that all white-collar facilitators of piracy deserve leniency.

Kingpins Enjoy Impunity

A confidential UN report, made available to Reuters, highlights the considerable disparity in the treatment of low-level operatives versus pirate kingpins in that the latter enjoy impunity. The report notes:

The UN Monitoring Group on Somalia said in a report to the Security Council, seen by Reuters, that senior pirate leaders were benefitting from high level protection from Somali authorities and were not being sufficiently targeted for arrest or sanction by international authorities.

[…]

The UN report said pirate leaders are now increasingly involved in land-based kidnap for ransom of foreign tourists and aid workers in northern Kenya and Somalia, as well as selling services as counter-piracy experts and consultants in ransom negotiations, and exploring “new types of criminal activity”.

“This evolution of the piracy business model is being driven largely by members of the Somali diaspora, whose foreign language skills and bank accounts are all valuable assets,” it said.

[…]

The [Monitoring] Group said that in spite of three international task forces and efforts by a dozen national governments in maritime counter-piracy efforts, serious legal obstacles remain that “impede the prosecution and sanctioning of pirate leaders and kingpins”.

Further to this last observation, a recent opinion by a U.S. District Court brings into question the ability to prosecute pirate kingpins who never set foot aboard a pirate vessel on the high seas. For reasons I will set forth in a forthcoming post, I think the court reached some faulty conclusions. But if the reasoning in that opinion gains traction, prosecution of high-level pirates under the framework set forth in UNCLOS will become increasingly untenable.

Incitement to Hunt al-Shabaab

Ahmed Abdi aw-Mohamed, founder of al-Shabaab

Last month, the U.S. State Department announced that it was offering rewards of $3-7 million for information that would lead to the senior leaders of al-Shabaab. See also, here. As Somali pirates continue to meet considerable resistance at sea, and successful pirate attacks see a precipitous drop, they are seeking new sources of income. This raises the possibility that they will seek to provide information about the whereabouts of al-Shabaab leaders pursuant to the State Department Rewards for Justice program. But there are potential legal obstacles to paying for information from pirates.

As some background, there continues to be debate as to whether members of al-Shabaab and Somali pirates are colluding with one-another. For example, in a recent trial in Italy, the prosecutors asserted that pirates had connections to al-Shabaab and planned on using the ransom proceeds to finance terrorist activities. Likewise, Kenya justified its initial incursions into Somalia based upon the assertion that recent kidnappings of tourists and aid workers in Kenya were the work of al-Shabaab (though some of these attacks were likely perpetrated by pirates with no political objective). There have also been assertions that the port of Kismayo, al-Shabaab’s most important source of income, was being shared by pirates. Kenyan Prime Minister Raila Odinga has requested assistance from the EU naval mission to help to take Kismayo, but the EU has been reluctant because it considers the port to be an al-Shabaab stronghold and not a stronghold of pirates.

Readers of this blog will recall that in 2010, President Obama issued executive order 13536 imposing economic sanctions on suspected financiers of Somali piracy. Although this same executive order imposed sanctions on the organization of al-Shabaab, the preface specifically declared a national emergency to deal with “the deterioration of the security situation and the persistence of violence in Somalia, and acts of piracy and armed robbery at sea off the coast of Somalia.” Terrorism and al-Qaida were not mentioned, suggesting the economic sanctions were being targeted at pirates.

This brings us to the Rewards for Justice program and the list of seven senior leaders of al-Shabaab. Of this list, it appears that three individuals also appeared in the President’s executive order 13536 annex. Perhaps the economic sanctions had always contained a list of both pirates and al-Shabaab. Another possibility is that former pirates have joined the forces of al-Shabaab. Whatever the case, the State Department is prohibited by executive order 13536 from paying for information from the individuals named in the order. Considering the past confusion as to potential links between al-Shabaab and pirates, it will prove a challenging task to verify that a particular individual providing information is not affiliated with one of the individuals named in the executive order or with al-Shabaab. Even if information does not come from individuals specifically named in the executive order, the State Department will have to consider the possibility that reward money will go to finance pirate operations. In the end, it may be a case of the enemy of my enemy is my friend (at least for today). Regardless, the possibility that pirates could provide information as to the whereabouts of al-Shabaab’s senior leaders might be enough to prevent any future alliance between the two organizations.

U.S., Iran and China target pirate financiers and Kingpins

Rescued Chinese crew aboard cargo ship Xianghuamen wave to a welcoming Chinese delegation near Bandar Abbas, Iran, April 7, 2012. One of Somalia’s most wanted pirates was captured after Iranian commandos rescued the hijacked ship. PHOTO | XINHUA |

In May, Thomas P. Kelly, Principal Deputy Assistant Secretary of State gave a lengthy speech to the American Petroleum Institute outlining the U.S. strategy to address piracy. The approach includes the following:

  • diplomatic engagement to spur collective international action;
  • expanding security at sea through the use of naval assets to defend private vessels and to disrupt pirate attacks;
  • preventing attacks by encouraging industry to take steps to protect itself;
  • deterring piracy through effective legal prosecution and incarceration; and
  • disrupting the piracy enterprise ashore, including the financial flows that make it possible.

Of particular interest to the prosecution of pirate leaders and organizers was the following:

After an intensive review of our strategy last year, Secretary Clinton approved a series of recommendations which constitute a new strategic approach. A focus on pirate networks is now at the heart of our strategy. We are using all of the tools at our disposal in order to disrupt pirate networks and their financial flows. We are focused on identifying and apprehending the criminal conspirators who lead, manage, and finance the pirate enterprise, with the objective of bringing them to trial and disrupting pirate business processes. Often, the best way to attack organized crime is to follow the money. That’s how the U.S. put some nefarious criminals behind bars. Pirate organizers receive income both from investors and ransom payments, and disburse a portion of the proceeds of ransoms back to these investors. Already, the United States has convicted one Somali pirate negotiator.

This highlights the focus on high-value kingpins as opposed to just the foot soldiers executing attacks. In 2010, President Obama signed Executive Order 13536 concerning Somalia which identified 11 individuals who were suspected of financing piracy. The Executive Order imposed economic sanctions on individuals who “have engaged in acts that directly or indirectly threaten the peace, security, or stability of Somalia” and indicated that “among other threats to the peace, security, or stability of Somalia, acts of piracy or armed robbery at sea off the coast of Somalia threaten the peace, security, or stability of Somalia.” Some of these same individuals were named in a list created by the UN Security Council in February 2012 indicating they are “individuals and entities subject to the travel ban, assets freeze and targeted arms embargo imposed by paragraphs 1, 3 and 7 of Security Council resolution 1844 (2008).”

The list of individuals annexed to the Executive Order includes, Mohamed Abdi Garaad, who was recently arrested together with 12 other suspected pirates on 4 April by Iranian commandos after the pirates had hijacked a Chinese cargo ship. It is reported that Garaad was:

In command of one of the largest pirate militias, Garaad is outspoken and well known to the international media.  He is reported to command 13 separate militia groups, totaling over 800 pirates.  In a 2009 interview, he proclaimed, “The navies, they can’t stop us … we have more than 200 crews and we are increasing all the time.”  Garaad is responsible for the attack on M/V Maersk Alabama, which ended with the successful operation by US Navy SEALs.  After this operation, Garaad publicly threatened to retaliate against US ships and crews.  Garaad is also responsible for the 2009 attack on the M/V Sea Horse, a ship delivering World Food Program aid to Somalia.

See also here and here. It is unclear whether he is in the custody of Iranian or Chinese authorities, whether he will be brought to trial and if so where and under what legal regime.

Contact Group on Piracy Recommends Prosecution of Pirate Leaders

The Contact Group on Piracy off the Coast of Somalia met in New York on 21 March 2011 in the first of its thrice-yearly meetings.  The Contact Group was created pursuant to U.N. Security Council Resolution 1851 and is composed of about 60 countries and several international organizations , including the African Union, the League of Arab States, European Union, the International Maritime Organization, the North Atlantic Treaty Organization and various departments and agencies of the United Nations.

To date, I am unaware of any prosecution of pirate ring leaders or financiers. Those who have been prosecuted in various countries for piracy are the footsoldiers who execute the attacks.  You can remove dozens of footsoldiers from the equation, but if the financing for pirate ventures is uninterrupted, pirate attacks will continue.  In this regard, the Chairperson of the Contact Group, Ertuğrul Apakan of Turkey, stated:

In the effort to end impunity, such an approach would include a multifaceted, aggressive effort to prosecute and incarcerate pirates, including their leaders and financiers, through information sharing, other innovative mechanisms and support for national prosecution.

A key policy decision regarding the prosecution of pirates is whether or not to pursue those individuals responsible for financing piracy. Such individuals never step foot on a pirate boat which makes proving their link to attacks more challenging. Such efforts might require leveraging lower level criminals to testify against their superiors, and tracing financing and ransom payments. This implies lengthy investigations, requiring significant resources. As the ICTR/ICTY models have shown, these efforts can drag on. It is unclear whether the international community would want to tackle such a task when the cost or duration of such prosecutions could not be reasonably estimated.  Prosecuting footsoldiers is a much simpler business.

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