POST #100 – Developing Consensus on Specialized Piracy Chambers

It is perhaps appropriate that our 100th Post at Communis Hostis Omnium should discuss the issue of a prosecution mechanism and the Jack Lang Report as this was the same topic of our first post in January 2011. From its humble beginnings, this blog has grown in readership and gathered many contributors along the way. We will continue to provide objective analysis of the legal issues surrounding maritime piracy and hope to add some new features. In this regard, today we are introducing a feature called the Weekly Piracy Review which will provide a brief summary of the most important news events of the week and link to relevant analysis where appropriate. Our thanks and welcome to Christine Hentze for taking up this feature. Please continue reading and commenting!

Specialized Piracy Chambers

There appears to be a developing international consensus that something more than national prosecutions of pirates must be pursued in order to address the growing backlog of piracy prosecutions and to reduce the problem of catch and release. That solution appears to be a specialized piracy chamber. A specialized piracy chamber would be a court created within one or more regional states (i.e. Seychelles, Kenya, or possibly Tanzania) and would deal with every piracy prosecution referred thereto. The court would apply that state’s municipal law consistent with the applicable constitutional and statutory framework. Furthermore, the state’s criminal rules of procedure would apply, although specific rules of evidence might need to be adopted in view of its unique mandate. Two sources in particular indicate this is the solution that is gaining support.

The 2011 Digest of United States Practice in International Law (released in July 2012) sets forth the U.S. State Department’ s view as follows:

It is true that suspected pirates have been successfully prosecuted in ordinary courts throughout history. Because of this, the Administration has previously been reluctant to support the idea of creating an extraordinary international prosecution mechanism for this common crime. Instead, the Administration has focused on encouraging regional states to prosecute pirates domestically in their national courts. However, in light of the problems I’ve described to you today, the United States is now willing to consider pursuing some creative and innovative ways to go beyond ordinary national prosecutions and enhance our ability to prosecute and incarcerate pirates in a timely and cost-effective manner. We are working actively with our partners in the international community to help set the conditions for expanded options in the region. In fact, we recently put forward a joint proposal with the United Kingdom suggesting concrete steps to address some of the key challenges we continue to face.

[…]

In addition, we have suggested consideration of a specialized piracy court or chamber to be established in one or more regional states. The international community is currently considering this idea, along with similar models that would combine international and domestic elements. These ideas are under discussion both in the UN Security Council and in the Contact Group.” (emphasis added).

To provide some background, in July 2010, Jack Lang proposed 7 potential mechanisms for such prosecutions. As we noted here, a subsequent Secretary General Report of January 2012 discusses the modalities for several of these options, focusing on 4 of the 7 options. Initially, there was support from some members of the Security Council for the idea that an international tribunal should be created for the prosecution of pirates. However there was resistance from the U.S. and the U.K. based on the continued viability of national prosecutions based on universal jurisdiction. But strictly national prosecutions do have their limits as is noted by the 2011 Digest:

[M]any of the countries affected by piracy—flag states, states from where many crew members hail, and many of our European partners—have proven to lack either the capacity or the political will to prosecute cases in their national courts. Furthermore, states in the region that have accepted suspects for prosecution to date have been reluctant to take more, citing limits to their judicial and prison capacities and insufficient financial support from the international community. As a result, too many suspected pirates we encounter at sea are simply released without any meaningful punishment or prosecution, and often simply keep doing what they were doing. This is the unacceptable ‘catch and release’ situation that has been widely criticized, and for which we must find a solution.”

It further notes that:

 [W]e need to acknowledge the reality that many states, to varying degrees, have not demonstrated sustained political will to criminalize piracy under their domestic law and use such laws to prosecute those who attack their interests and incarcerate the convicted. The world’s largest flag registries—so-called “flags of convenience”—have proven either incapable or unwilling to take responsibility. And given the limited venues for prosecution, states have been reluctant to pursue prosecutions of apparent or incomplete acts of piracy, limiting our ability to prosecute suspects not caught in the middle of an attack.

Hence the need for specialized piracy chambers. A new article by Douglas Guilfoyle supports this view of a developing consensus in the Security Council and his view that specialized chambers are the only practical solution. First Guilfoyle dismisses the other options set forth in the Jack Lang report. He notes that “the earlier calls from some politicians and diplomats for an international piracy tribunal have seemingly fallen away, [. . .] The idea can therefore finally be treated as dead and buried.”

He also considers a dedicated territorial court in Somalia (Puntland or Somaliland) or an extraterritorial court applying Somali law (along the model of Lockerbie) to be unrealistic because “Puntland has a piracy law but no meaningful judicial capacity or immediate ability to attain international standards. An extra-territorial court would require an adequate Somali piracy law and constitutional framework (which does not exist) and a pool of Somali judges (which is not available)”

He therefore concludes that “[P]rosecutions before national jurisdictions are the only feasible option, whether in the general court system or dedicated chambers. […] The question is now largely one of modalities.” These modalities will include the following: (1) identifying which states will create specialized chambers; (2) determining whether UN support is required; (3) and if so, establishing agreements for the provision of such assistance. In this regard, Guilfoyle raises an interesting problem:

[S]ome prosecuting jurisdictions, in a climate in which foreign aid budgets are dwindling, may be in a rare position to provoke a bidding war for international assistance between the various counter-piracy missions in the Gulf of Aden in return for prosecutions. A rational allocation of counter-piracy resources may thus require a more centralized approach in negotiating future agreements.

The most likely candidate for this centralized role would be UNODC and/or UNDP as they have taken the lead in establishing the modalities for these specialized chambers. At the same time, donor states will have to be consulted. Considering all of the stakeholders and the fragmented nature of responses to piracy, strong leadership will be required to create a holistic solution.

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.

Mauritius Strengthens Its Anti-Piracy Capacity

Last month, Mauritius became the latest country in the Indian Ocean area to enter into an agreement with the United Kingdom for the transfer of suspected pirates before its courts for prosecution. The agreement was announced earlier this year during the London Conference on Somalia, which highligthed the UK driving role in Somalia’s recovery, including the fight against piracy. Mauritius thus follows in the footsteps of Tanzania and the Seychelles who have recently penned similar agreements with the UK, in 2012 and 2010, respectively, aiming to break the pirates business circle by providing a jurisdictional basis for their prosecution after apprehension at sea.

Prime Minister David Cameron and his Mauritius counterpart Navinchandra Ramgoolam sign the prisoners transfer agreement – FCO

Notoriously, foreign navies deployed off the Somali coast to counter piracy are reluctant to take pirate suspects to their own countries because they either lack the jurisdiction to put them on trial, or fear that the pirates may seek asylum. Evidentiary hurdles are also seen as an increasing impediment to effective prosecutions. Suspected pirates detained on the high seas are therefore often released after a brief detention due to the governments’ reluctance to bring them to trial.

Under the terms of the new international agreement, Mauritius will receive and try suspected pirates captured by British Forces patrolling the Indian Ocean. Last year, Mauritius entered into another agreement with the European Union for the transfer, trial and detention of suspected pirates captured by the EUNAVFOR naval mission. As reported on this blog, Mauritius has also inked a deal with the TFG, Somaliland and Puntland to start to transfer convicted pirates to Somali prisons, paving the way for the commencement of prosecutions in Mauritius.

The first trial of a suspected Somali pirates is due to commence in September 2012. In the meantime, Mauritius, already a signatory of UNCLOS, further strengthened its anti-piracy capabilities by adopting various relevant legislative instruments. First and foremost, a new anti piracy law was adopted at the end of 2011. The new Piracy and Maritime Violence Act 2011, premised on the transnational dimension of modern day piracy and the principle of universal jurisdiction to counter it, incorporates nearly verbatim in the national judicial system the definition of piracy as contained in Article 101 of UNCLOS. Acts of violence within Mauritius internal waters are defined as “Maritime Attack”. The novel term adds a degree of fragmentation in the definition of this offence, which is otherwise commonly referred to internationally as “armed robbery at sea”. In an attempt to cater for a wider range of piracy related criminal activities, the Piracy Act also criminalizes the offences of hijacking and destroying ships as well as endangering the safety of navigation. For each of these offences, the Piracy Act provides for a maximum term of imprisonment of 60 years.

More interestingly, the Piracy Act introduces the possibility for the holding of video-link testimonies and/or the admission of evidence in written form where the presence of a witness, for instance a seafearer, cannot be secured. While not uncommon in certain national criminal jurisdictions, as well as those of international criminal courts, the introduction of out of court statements, particularly when relevant to the acts and conducts of an accused, could trigger fair trial rights issues. These issues are principally due to the limited ability of the defence to test such evidence when relied upon at trial in the absence of the witness. In light of these concerns, the Piracy Act provides for the admissibility of evidence in rebuttal as well as for the court’s discretionary power in assessing the weight to be given to written statements.

In addition to the Piracy Act, which entered into force on 1 June 2012, Mauritius also adopted and/or amended its laws concerning assets recovery and mutual assistance in criminal matters in order to foster cooperation with foreign governments to tackle pirates and criminal cartels. The implementation of the agreement with the UK, however, is still to be fully tested. In May 2012, the UK announced that defence budget cuts required it to scale back its naval commitments in the region, withdrawning its ships from full-time counter-piracy operations.

 

The HMS Ocean Arrives in London Ahead of the London 2012 Olympic Games – Courtesy AP

These difficulties have been compounded by the need to commit ships and personnel to the security efforts for the London 2012 Olympic Games. The UK long-term commitment to combat piracy in Somalia extends beyond its current patrolling and disruption efforts in the Indian Ocean. To remain within the Olympic spirit, French Baron Pierre de Coubertin, considered the founder of the modern Olympics Games, famously noted how “The important thing in life is not the triumph but the struggle, the essential thing is not to have conquered but to have fought well.”  With piracy attacks in the region at their lowest level, during monsoon season, however, it is worth considering whether we should be content with the current efforts to combat piracy, or whether we should be aiming for more.

Efforts to Support Somalia-based Prosecutions Continue

Following a recent trial in the UAE resulting in the conviction of 10 pirates, the UAE has announced that it will host a training of Somali judges to buttress local, Somalia-based prosecutions. The UN report from January recommended regional prosecutions, in lieu of an international court, to tackle the expanding docket of Indian Ocean piracy cases without an obvious home. Such prosecutions were recommended and have continued in regional states, including Kenya, Tanzania, Mauritius, and Seychelles. Moreover, the UN report suggested that the break-away regions of Somaliland and Puntland, as well as the Transitional Federal Government in Mogadishu, would be appropriate locations for prosecutions. Since then, violence against the judiciary and fair trial concerns have arisen in Puntland in particular. Nonetheless, the UAE judicial training, apparently supported by the French ministry of foreign and European affairs, will identify and train judges from Puntland, Somaliland and the TFG. The move is consistent with efforts to funnel the piracy issue back to Somalia as regional states grow tired of bearing the brunt of the prosecutorial burden. The UAE report notes:

The Kenyan ambassador to the UAE Mohamed Gello said prosecuting pirates in neighbouring countries such as his was also a strain on resources.”Any move that will help the Somali judicial system effectively deal with pirates is welcome,” Mr Gello said. “This sends the right signals that law and order is slowly being restored, along with the administration of justice. “It is crucial to build confidence in the judicial system and for the pirates to be dealt with in their own country.”

Funneling Pirates Back to Somalia

After the London Conference on Somalia: A First Appraisal of Counter-Piracy Measures

The much awaited London Conference on Somalia was finally held at Lancaster House, London on 23 February 2012. Fifty-five delegations attended the Conference, including the UK Prime Minister, David Cameron, the UN Secretary General, Ban-ki Moon and the US Secretary of State, Hillary Clinton as well as the leaders of various countries in the Gulf of Aden and East Africa region, such as Djibouti, Seychelles, Mauritius, Kenya and Tanzania. Leaders of Somalia’s Transitional Federal Government as well as of the breakaway regions of Puntland, Galmudug and Aluh Sunnah wal Jamaah (ASWJ) also participated. As anticipated, the self declared autonomous region of Somaliland attended the Conference, marking a major policy shift for the former British protectorate which deliberately stayed away from several previous peace conferences on Somalia. While the participation of all regions of Somalia was certainly a legitimating factor for the Conference, it is worth noting that the direct interests of Somalia were represented by 5 different delegations.

The Conference was meant to be a key moment in Somalia’s troubled history and called for a change in the international approach from the fruitless policies of the past 20 years. The Conference was preceded by much debate and a degree of controversy, particularly on the future of Somalia’s transitional federal institutions, whose mandate will end in August 2012. The Somali diaspora showed hope for more inclusiveness in building the political and economic landscape of the country. On the eve of the conference, in a bid to increase leverage of the decisions to be taken in London, the UN Security Council boosted the current African Union peacekeeping mission, raising its troop contingent up to 17000 soldiers.

The Conference registered a series of important political commitments from the stakeholders of the Somali cause, relevant to political, humanitarian, security and governance issues. Notably, leaders attending the Conference recognized the importance of empowering the Somali population and creating accountability for its political leadership, with the international community acting as a facilitator of the process. We will soon assess whether these commitments could turn into effective and practical action and what will be their contribution in shaping the future of this country. Not surprisingly, the fight against piracy occupied a prominent place in the discussion. Perhaps the most important aspect of the Conference in this regard was the acknowledgment that piracy in Somalia requires a comprehensive approach on land as well as at sea to tackle the root causes of piracy. This is a very important step. A military-focused approach of targeting pirates at sea coupled with limited judicial accountability measures could only provide a short term deterrent if not coupled with social development, economic growth and good governance. The underlying causes of piracy, but also its direct effects, are inextricably intertwined with all other problems affecting Somalia.

“We agreed that piracy cannot be solved by military means alone, and reiterated the importance of supporting communities to tackle the underlying causes of piracy, and improving the effective use of Somali coastal waters through regional maritime capacity-building measures.”

Some of the most encouraging developments of the Conference pertain to the immediate fight against piracy. These include the signing of important agreements enhancing the current plans by the international community to create a “cycle of justice”, or, as we called it, a “Globalized System of Criminal Justice”, where pirates are caught at sea, transferred to regional states for prosecution and, finally, imprisoned in Somalia. Hosting the Conference created momentum upon the UK’s own contribution to tackle piracy. The UK and Tanzania signed a memorandum of understanding allowing the UK Royal Navy to transfer suspected pirates apprehended at sea to Tanzania for prosecution. The UK also signed a statement of intent with Mauritius for the same purposes. These agreements are particularly relevant in light of Kenya’s current suspension of the transfer of suspected pirates for prosecution before its national courts. Plans for the imprisonment of pirates also registered some significant development. Puntland committed to the transfer of convicted pirates in the region to its prisons from August 2012. In an effort to enhance its anti-piracy strategy, Somaliland will also focus on improving its capacity to jail suspected and convicted offenders. Somaliland signed a ground breaking agreement with Seychelles for the transfer of convicted pirates to its prisons. In addition, Somaliland has recently passed a law declaring piracy illegal and making it an offense punishable by a maximum of twenty-five years. Somaliland previously limited prosecutions to charging alleged pirates with armed robbery.

“There will be no impunity for piracy. We called for greater development of judicial capacity to prosecute and detain those behind piracy both in Somalia and in the wider region and recognised the need to strengthen capacity in regional states. We welcomed new arrangements, which enable some states and naval operations to transfer suspected pirates captured at sea for trial by partners across the Indian Ocean region, and if convicted, to transfer them to prisons in Puntland and Somaliland which meet international standards. We noted the intention to consider further the possibility of creating courts in Somalia specialised in dealing with piracy.”

The first chance to evaluate the outcome of the London Conference will be, yet again, at another conference. Turkey, an increasingly growing ally of the Somali cause, will organize in cooperation with the UN the Second International Conference on Somalia. The conference will be held on 1 June 2012 in Istanbul. In addition, the UAE, the current chair of the Contact Group on Piracy off the Coast of Somalia. will host a second International Maritime Counter-Piracy Conference on 27-28 June 2012 in Dubai, further to an initial event hosted in April 2011. But the real work will be on the ground as attempts are made to execute the promises made at the conference, including exercising the rights and obligations set out in the newly minted transfer agreements.