Oil Tanker Pirated Off Ghana Coast

On June 7th, reports surfaced that a Liberian tanker had gone missing off the coast of Ghana.  The captain had apparently made a distress call reporting that the vessel was being attacked by pirates.  As of today, the ship remains missing; unfortunately, is it likely that it has been pirated and we can only speculate as to the kinds of demands that pirates will make regarding the ship and its crewmembers.

Although piracy has been on the decline off the coast of Somalia, in 2013 the number of piracy attacks rose by one-third off the coast of West Africa, thereby driving up insurance rates and threatening the safety of maritime routes in this region.  The root cause of West African piracy seems to be the uprising in the Nigerian oil-rich Niger Delta, where criminal networks and gangs have blossomed.  West African pirates typically hijack larger ships carrying precious cargo, such as oil.  Attacks have taken place in Nigeria, but also off the coasts of Ghana and Cote d’Ivoire, undermining the development of West Africa as an oil and gas hub by destabilizing deliveries.  West African pirates seem particularly daring.  In an earlier attack, in January 2014, they attacked a vessel off the coast of Angola and sailed it all the way up to Nigeria.

As I have reported earlier on this blog, the development of West African piracy is a serious concern, as it threatens to destabilize the region and thwart economic development.  Unfortunately, it is questionable whether lessons learning from the global combat against Somali piracy will be of any value, as the two piracy models differ on many levels.  The rise of West African piracy underscores the need for the international community to continue its anti-piracy efforts, despite a decline in Somali piracy attacks.

Dismissal of Charges in U.S. v. Ali

United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.  The prosecutorial decision not to pursue the Ali case may come as an unpleasant surprise to come, or as confirmation to others that this controversial case should never have been initiated to begin with. 

Much has been written in the academic blogosphere about this case (see here and here and here).  To sum up, Ali was a former Somaliland education minister, who had spent much of his adult life in the United States.  After a Danish ship, the M/V CEC Future, was captured by Somali pirates in late 2008, Ali boarded the ship and translated the pirates’ demands to the ship owners.  The crux of the Ali case (at least factually) centers around his role in this piracy incident: was Ali merely a translator, contributing toward the hostages’ eventual release by enabling negotiation with the kidnappers, or was he a pirate himself, helping his fellow criminals to enrich themselves further through another successful ransom request? It is undisputed that Ali boarded the kidnapped vessel after the violent piracy incident took place, and it is undisputed that Ali boarded the vessel while the vessel was docked in Somali territorial waters.  Thus, Ali’s alleged act of facilitating piracy would have been committed in the Somali territorial waters, and not on the high seas. Despite such unusual “piracy” conduct by Ali, the United States government decided to build a case against him and to essentially ruse him onto American soil.  Toward this end, Ali was invited to an education conference in North Carolina, and promptly arrested on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.  Jon Bellish, in a prior post, has summarized the procedural posture of the Ali case in American courts as follows:

After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.

Following the DC Circuit court opinion, Ali was tried in the district court on charges that survived the appellate challenge, including hostage taking, we well as piracy facilitation, despite the fact, as mentioned above, that the act of facilitation did not take place on the high seas.  Perhaps because of such unusual factual circumstances surrounding Ali’s alleged piracy conduct, his strange arrival to the United States, as well as because of the difficult legal argument necessary in order to convict Ali, the jury found him not guilty of the charge of piracy, but deadlocked on the less serious charge of hostage-taking.  Prosecutors initially sought a retrial on the hostage-taking charges, but just announced a few weeks ago that they would not proceed with the retrial, because of constitutional concerns that Ali was being subjected to double-jeopardy (because the re-filed charges relied on the same basic facts). 

All of this leads me to my initial point – that perhaps Ali should never have been prosecuted in the United States to begin with.  The case was legally challenging from the outset.  Ali was a universal jurisdiction case – a prosecution of an alleged piracy facilitator who had no ties to the United States, and who could only be reached through universal jurisdiction, which has historically been available for the crime of piracy.  But in order to prove that Ali had committed piracy (so that he could be prosecuted under universal jurisdiction), American prosecutors had to show that Ali’s facilitative act under Article 101(c) of UNCLOS need not have occurred on the high seas, as long as the underlying act of piracy (committed against the Danish vessel) had itself occurred on the high seas.  In other words, Ali could be convicted of facilitating piracy on dry land or in Somali territorial waters under the concept of universal jurisdiction.  Accepting this argument is difficult to say the least, and commentators had suggested that a high seas requirement for piracy facilitation should always be required.  Factually, the case was difficult as well.  While it was undisputed that Ali had helped negotiated the ransom demand, it was unclear as to what Ali’s role in the piracy endeavor (if any) had been.  Under the Ali precedent, would insurance company mediators, negotiating between pirates and the shipping company, also be subject to universal jurisdiction for facilitating piracy? What about pilots who fly planes which drop the ransom money? And what about the ruse orchestrated by United States’ prosecutors to entice Ali into coming to America? The district court judge herself had been outraged by the prosecutorial conduct, and while this would not be ground for dismissal under American law, most of us agree that this kind of governmental and prosecutorial conduct portrays the United States in a negative diplomatic and political light.  My argument, for the purposes of this post, is not to claim that the Ali appellate court was correct or incorrect, or to try to shed light on what Ali had actually done in this particular piracy incident; instead, let me point out that legally and factually difficult cases, like Ali, should not be the subject of expensive prosecutions thousands of miles away from Somali shores.  Many of us will agree that combatting piracy is a global challenge which involves, among other strategies, creating multiple prosecutorial venues where suspected pirates are routinely charged and convicted (if found guilty).  But the international community actors involved in fighting piracy have limited resources, limited time, and limited attention to this global problem.  Instead of pursuing piracy negotiators like Ali, whose guilt may be doubtful and whose prosecution could only succeed through a stretch of the universal jurisdiction concept, why don’t we focus on those who actually engage in piracy attacks, or, more importantly, on those who plan and finance piracy attacks? Finally, now that Ali’s prosecution has come to a halt, we have to ask ourselves what will happen to this defendant – now that he is on American soil, will he apply for political asylum in the United States or attempt to stay here on other grounds (something that our prosecutors clearly did not have in mind when they lured Ali to America?) The risk of unsuccessfully prosecuting Ali was never worth the potential benefit. 

 

Piracy in West Africa: A New Model (Unfortunately)?

While piracy attacks seem to be on the decline off the coast of Somalia, pirates may be warming up in West Africa.  As I and others have blogged about before, the Gulf of Guinea, as well the Nigerian Delta, have recently turned into hotbeds of piracy.  The Nigerian Delta in particular, because of vast amounts of oil production which takes place there annually, has attracted potential pirates interested in seizing oil and selling it for profit on the black market.  Recently, such piratical activity has expanded farther south, to the coast of Angola, signaling the rise of a new kind of piracy, focused on stealing oil as opposed to kidnapping crews for ransom.  Regardless of its goals, this new model of piracy could severely threaten the security of West African waters and could negatively impact economic stability of the region, dependent on oil and safe transportation.

On January 18th, a Greek-owned and Liberian-flagged oil tanker, Kerala, disappeared in Angolan waters.  Nobody knows for certain what happened to the ship, but a piracy incident was suspected because just before Kerala’s disappearance, maritime security firms had began warning of a suspicious, 200-ton tugboat sailing in Angolan waters off the Angolan coast.  Kerala’s Greek owners re-established contact with the vessel on January 26th, when they announced that the vessel had indeed been hijacked, that a crew member had been hurt, and that the vessel was on its way to a Ghana port. Moreover, it was announced that Kerala‘s cargo – more than 60,000 tons of diesel – had been stolen.  In a surprising twist of unfolding events, the Angolan Navy denied that a hijacking had taken place.  Instead, Angolan officials contended that the Kerala crew had faked the hijacking, and had decided to sail toward Nigerian waters voluntarily.  Maritime security experts doubt the accuracy of the Angolan version, and believe that a piracy incident did in fact take place, because the theft of oil, which disappeared from the Kerala, closely resembles the new piracy model developing off the coast of West Africa.

The West African piracy model is different from its Somali counter-part.  In Somalia, pirates most often attacked vessels in order to hijack the ship and kidnap its crew, and then demand a multi-million dollar ransom.  In West Africa, pirates engage in sharp and often violent attacks on oil tankers, in order to seize the oil and sell it on the local black market.  West African pirates are generally not interested in kidnapping the crew, because they cannot easily dock hijacked ships in West African coastal states, where law enforcement and coast guard officials would most likely arrest them.  To the contrary, because of the rampant lawlessness which has plagued Somalia for over two decades, pirates were able to dock ships with impunity in Somali ports and to hold kidnapped crewmembers for months without fearing arrest.  In Somalia, most attacks occurred on the high seas, enabling piracy-combatting nations which had been patrolling the Indian Ocean to act against the pirates: international treaty law specifically authorizes countries to arrest pirates on the high seas.  Moreover, in the Somali context, the United Nations Security Council had passed numerous resolutions authorizing patrolling nations to enter Somali territorial waters, and even Somali land, when going after pirates.  The situation is starkly different in West Africa.  First, some “piracy” attacks in West Africa have taken place in the territorial waters of countries like Nigeria, Angola, or Benin: these incidents would not qualify as “piracy” under international law because they were not committed on the high seas (an element present in the definition of piracy found in the United Nations Convention on the Law of the Sea).  If a piracy-like incident occurs in the territorial waters of a West African nation, other piracy-combatting nations do not have authority to act, cannot chase the suspected pirates, cannot apprehend them, and cannot defend the victim vessel.  Second, in most incidents, West African pirates’ modus operandi is as follows: pirates offload relatively small amounts of captured product (typically oil) onto costal vessels once the hijacked ship is the pirates’ home country’s territorial waters.  International patrols are generally unable to follow suspected pirates into West African nations’ territorial waters, because doing so would breach such countries’ sovereignty.  This enables pirates in West Africa to seek refuge in their own waters.  In the Kerala incident, where the hijacked vessel was likely hauled to Nigerian waters, where the stolen oil was most likely offloaded, the theft amounted to about 4 million gallons. According to United Nations reports, pirates could net as much $30 million per year by selling stolen oil on the local black markets.  Many experts believe that West African piracy, and especially attacks which occur in the Nigerian Delta, are simply an extension of domestic oil theft.  This piracy model may be even more dangerous than the Somali one, and the international community may need to shift focus from East to West Africa.

Somali pirates, notwithstanding violent incidents and Captain Phillips, generally avoided harming crewmembers, because they needed to extract ransom money in exchange for releasing alive and well kidnapped seafarers.  West African pirates, because they are after the oil and not crewmembers, do not care about not harming anybody, as long as they can get their hands on the ship cargo.  Moreover, because of the lawlessness of Somalia and its failed statehood, the international community had authorization, through Security Council resolutions, to breach Somali territorial sovereignty and to engage in law enforcement-type operations geared toward neutralizing piracy in Somali waters and on Somali land.  Many experts agree that the sharp decline in Somali piracy incidents is due in part to the ability of piracy-fighting nations to engage in this type of widespread  maritime operations.  In other words, Somali pirates were unable to hide in Somali waters or on Somali land.  This scenario is unlikely to happen in West Africa, where nations enjoy full sovereignty, and where anti-piracy operations will likely be limited to the high seas.  In addition, off the coast of Somalia, many ship owner started employing  private armed guards, which also contributed significantly to the decline in the number of piracy attacks.  West African states are unlikely to allow the use of private armed guards on board vessels sailing in their waters, and vessels may only be allowed to use such guards on the high seas.  In sum, West African pirates may be more dangerous, and combatting them may represent a more complex issue than the one which originally presented itself off the coast of Somalia. 

Some anti-piracy efforts have been taking place in West Africa.  Nigeria has pledged to combat oil theft and piracy, and many European Union nations, which routinely import oil from the region, have engaged in limited anti-piracy programs.  However, it seems that two major super-powers, the United States and China, are not likely to dispatch their navies, the same way they did in the Indian Ocean.  For these reasons, it appears that while Somali pirates have buried their grappling hooks and ladders, West African pirates “may just be getting going.”  Unfortunately.