Private Security Liability under the Alien Tort Statute

Hasan Abdullah Quanas, a Yemeni fisherman, stands at the prow of the fishing boat on which his nephew Mohammed Ali Quanas was killed by shots fired from the Nordic Fighter tanker in the Red Sea on Aug. 3, 2011. Photo: Alan Katz

There has been a long discussion concerning if and how to regulate private security contractors hired to protect merchant vessels against pirates. See e.g. here and here. Only last week, the Security Council emphasized in the Presidential Statement issued after its debate on piracy that it “encourage[d] flag States and port States to further consider the development of safety and security measures onboard vessels, including regulations for the deployment of PCASP [privately contracted armed security personnel] on board ships through a consultative process, including through International Maritime Organization and International Standards Organization.”

As noted by Christine, two incidents in particular have raised the specter that innocent fishermen have been killed by PMSCs (Private Military and Private Security Companies)(the term we have used on this site). One incident involved a vessel protection detachment (VPD) of Italian special forces who killed two Indian fishermen believing them to be pirates. See here and here. Another incident involved the death of a Yemeni fisherman allegedly at the hands of a Russian VPD. As to the latter incident, it was reported:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.

“He was killed while he was holding some dough for dinner,” says Quanas’s uncle, Hasan Abdullah Quanas, who was in the prow and saw his nephew fall. Hasan abandoned fishing after the shooting for fear that he too could become collateral damage in the increasingly violent fight to tame piracy on the high seas.

These are some of the few incidents that have been reported, but there are very likely more incidents where PMSCs or VPDs have mistakenly fired upon, injured, or killed innocents on the high seas. Presently, a ship’s flag state regulates the conduct of PMSCs and VPDs aboard ships on the high seas. There is no universally binding code of conduct, although the IMB has published interim guidelines. Nonetheless, PMSCs are potentially liable for acts of piracy for the killing of fishermen based on universal jurisdiction in the United States.

As many readers know, the Alien Tort Statute in the United States authorizes civil suit in U.S. federal courts against individuals (and perhaps corporations) who have violated the law of nations. The Alien Tort Statute has generally been used to pursue perpetrators of mass human rights violations. Although the drafting history of the statute is scarce and has made it very difficult to ascertain the original intent of Congress in adopting the statute, many are of the view that the Alien Tort Statute was initially intended to cover, at least, acts of piracy. Professor Alfred Rubin, in his treaty on the law of piracy, notes that the original intent was to provide a basis for civil suit against pirates:

[In 1792, US Attorney General Randolph envisaged the Alien Tort Statute to be a] supplement to criminal process to permit the victim of a wrongful taking aboard to recover his property when the tort law of the place of taking and the tort law of the United States coincided and the taker or the property was in the territorial jurisdiction of American courts. It would have had obvious applicability to aliens seeking to recover their goods from “pirates” as well as from those taking their property aboard, but seems to have rested on Blackstone’s naturalist conception of the ‘law of nations’.

In other words, the original intent of the Alien Tort Statute was to permit civil suit against pirates in US federal court. The law of nations defines piracy as any illegal acts of violence committed for private ends by the crew or the passengers of a private ship and directed against another ship (UNCLOS Art. 101(1)(a)). An act of violence by a PMSC against fishermen on the high seas would satisfy this definition. Therefore, PMSC’s are themselves liable for acts of piracy if they mistakenly injure or kill fishermen. Further, the Alien Tort Statute provides jurisdiction in US Federal Court to seek compensation for such illegal acts.

Acts of violence by a VPD might not fall within this definition since VPDs are state-sponsored and therefore precluded by the “private ends” requirement of the piracy definition. However, PMSCs are not state-sponsored. Another question is whether the law of self-defence may authorize some acts of violence against ships believed to be carrying pirates. On this point, it has been suggested that the permissibility of self-defence against possible pirates is determined by reference to the subjective intent of the private security detail. One proposed self-defence guideline provides, “A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.” (emphasis added).

I am sceptical that this formulation of self-defence is comprehensive and inclusive of general principles of law as understood by the major legal systems of the world. See here. It is more likely an expression of black letter law from the British common law system. In any event, under most systems of law, self-defence must be proportionate to the danger posed. The question remains whether the objective fact that an approaching boat is composed of unarmed fishermen would preclude self-defence as a justification for such conduct.

Another possible obstacle is a jurisdictional one. Currently before the US Supreme Court is the question whether there must be some nexus with the United States, in addition to the requirements of universal jurisdiction, to permit suits based on the Alien Tort Statute. This might be satisfied if an act of violence by a PMSC were committed against an American ship, seafarer, or perhaps even cargo while on the high seas or if they were committed by an American PMSC. If the US Supreme Court were to require such a nexus, it could preclude other civil suits with no connection to US interests.

In any event, PMSCs should be cognizant of the fact that they could be subject to civil and was as criminal penalties for causing damage to or killing individuals who are not in fact pirates on the high seas.

Ahead of Security Council Debate, Secretary General Outlines Anti-Piracy Progress

As anticipated by Roger, on 19 November 2012 the UN Security Council is scheduled to hold an open debate on piracy as a threat to international peace and security. The meeting is called under the auspices of India’s current presidency. Earlier this month, the Council already approved the extension of the UN-AU joint military mission in Somalia (AMISOM) until March 2013, in another effort to provide continuity in security and governance to the current state authorities. Yet, the Council failed to reach an agreement on the funding of a maritime component for AMISOM. The Council also received the latest 3-montlhy report of the Sanctions Committee for Somalia. The briefing included an update on requests received by the Committee for exemptions to the on-going arms embargo on Somalia. It appears that calls by the African Union for a partial lifting of the arms embargo to strengthen Somalia’s poorly equipped military were so far unsuccessful.

Nigerian Troops Attached to AMISOM on Patrol in Mogadishu – Press TV

The upcoming debate will review the most recent UN Secretary General efforts to combat piracy in the Gulf of Aden region, contained in his latest report on this matter. The report covers the most important activities relevant to the fight against piracy launched by or in cooperation with the UN following the Council’s Resolution 2020 last year. These include the progress in prosecution, detention and transfer of convicted pirates, the activity of the main UN bodies and of the Contact Group on Piracy Off the Coast of Somalia, naval patrolling and anti-piracy capacity building in the region as well as a number of international conferences. Throughout the year, we have covered these issues here, here and here.

Interestingly, the report takes quite a direct stance on the impact of illegal fishing and illegal dumping toward piracy:

64.  Some observers continue to argue that illegal dumping of toxic waste and illegal fishing off the coast of Somalia is one of the factors responsible for forcing Somali youths to resort to piracy and attack foreign vessels because such activities deprive them from engaging in gainful employment opportunities. However, the United Nations has received little evidence to date to justify such claims. Most pirate attacks have been carried out against large merchant vessels several hundred nautical miles off the coast of Somalia.

65.  As for the dumping of toxic waste on land and at sea, while this may have occurred a few years ago in the waters off the coast of Somalia, there is no evidence of such activities currently. Concerns about the protection of the marine environment and resources should not be allowed to mask the true nature of piracy off the coast of Somalia, which is a transnational criminal enterprise driven primarily by the opportunity for financial gain.

The possibility for a specialized judicial structure solely devoted to investigate and prosecute piracy cases is also still gaining some momentum. The report refers to the initiative by Qatar for the establishment of a “special court for piracy” in the Gulf State (para. 42). As a first step, a delegation from UNODC and the Contact Group on Piracy off the Coast of Somalia visited Qatar last September for detailed discussions with the Qatari authorities. Additional initiatives pertain to a possible direct involvement of the UN in anti-piracy policing activities. The Asian Shipowners’ Forum called for the establishment of a multinational anti-piracy military task force under the auspices of the UN that could be deployed, a sort of UN Peacekeeping Vessel Protection Detachment on board of merchant ships (para. 43). These developments are not ripe for further exploration in the Secretary General report, but they raise fascinating preliminary legal issues. For instance, on the jurisdiction of special criminal fora, rule of law enforcement and the immunity of peacekeepers in connection with the prevention and punishment of universal jurisdiction crimes, that are worth considering for discussion in the near future.

Unused Pirate Skiffs in the Somali Town of Hobyo – AP

The most updated figures show a significant drop of both attempted and successful piracy attacks in the Gulf of Aden and the larger Indian Ocean area, speaking volume of the regional, international, government-lead as well as the private industry’s efforts in combating piracy. With the end of the monsoon season and the possible risk of disengagement by the international community as Somalia continues its current path of democratization, the jury is still out on how effective these efforts have been and what, if any, the pirates’ next move will be. These concerns are addressed in the report, which also recalls the need to add focus on land-based solutions to piracy:

74.  The recent gains made by the international community in its collective fight against piracy off the coast of Somalia are encouraging. However, although there are signs of progress, they can be easily reversed. Until the root causes of piracy, namely, instability, lawlessness and a lack of effective governance in Somalia, are addressed, counter-piracy efforts must not be minimized. In particular, ongoing efforts to build the rule of law and livelihood opportunities ashore should be intensified.

75.  A significant gap still exists in land-based programmes in Somalia to address piracy. This is primarily owing to the lack of security on the ground and lack of sufficient funding to support capacity-building and alternative livelihoods. An ever greater emphasis must now be placed on providing focused assistance to States in the region and to authorities in Somalia to build their capacity to deal with the institutional and operational challenges to governance, the rule of law, maritime law enforcement and security, and economic growth. In addition, counter-piracy actions should run alongside a concerted effort to rebuild the civil structures and institutions of Somalia in close cooperation with the Somali authorities and civil society.

76.  The successful end of the political transition in Somalia should act as a catalyst to address the root causes of piracy. I encourage the new Government to develop a comprehensive national counter-piracy strategy, working closely with the regional administrations and neighbouring States. This should include efforts to facilitate the development of skills necessary to earn sustainable incomes in such sectors as agriculture, livestock, fisheries and industry. I also call upon the Somali authorities to adopt appropriate counter-piracy legislation without further delay to ensure the effective prosecution of individuals suspected of piracy and to facilitate the transfer of prosecuted individuals elsewhere to Somalia. The new Government should proclaim an exclusive economic zone off the Somali coast in accordance with the 1982 United Nations Convention on the Law of the Sea.

77.  Although pirates’ proceeds decreased significantly in 2012 owing to a lower number of executed attacks, militias and parallel illicit activities sponsored by pirate money will continue to pose a threat to the stability and security of Somalia. It is imperative that pressure on Somali pirates and their business model be maintained.

The current lull in piracy activity in Somalia is, however, matched by a growing rise of violent robbery-style pirate attacks in West Africa’s Gulf of Guinea, often connected with other illicit activities of a transmaritime and transnational nature. The Security Council already held an open debate on piracy in West Africa in October 2011. For the first time, the upcoming debate within the Security Council will provide the opportunity for a joint and integrated discussion on piracy in both East and West Africa. Hopefully, it will also be capable to provide for an opportunity to confront these differing realities, identify their root causes and peculiarities and, most importantly, share the relevant lessons learned on the ground so far. We will closely follow the debate and report on its achievements, or failures, as soon as possible.

After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Honorable Mr. Justice David K. Maraga (photo: Kenya Law Reports)

The Court of Appeal decision overturns a ruling from the High Court of Mombasa that concluded, as noted by Roger on this blog, that “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” Rather than summarizing the lower court’s opinion, I will simply direct readers to Roger’s excellent analysis of that case.

On appeal, Justice David Maraga stated that the High Court erred by, 1) “subordinating Section 69 of the Penal Code to Section 5”; 2) misinterpreting Sections 369 and 371 of the Merchant Shipping Act of 2009, and; 3) “fail[ing] to appreciate the applicability of the doctrine of universal jurisdiction.”

With regards to the first ground of error, the Court Appeals took issue with the High Court’s interpretation of Section 5 of the Penal Code and its relationship to Section 69. Section 5 states that “The jurisdiction of the courts of Kenya…extends to every place within Kenya, including territorial waters.” The High Court characterized Section 5 as the “defining” Kenyan jurisdictional provision and concluded that Section 69, criminalizing piracy on the high seas, was “void, ab inicio.

Justice Maraga differed with the High Court’s position and held that “there is no conflict or gradation between [Sections 5 and 69].” He noted that Section 5 is part of Chapter 3 of the penal code, entitled “Territorial Application of the Code,” while Section 69 is contained in Chapter 8, “Offences affecting Relations with Foreign States and External Tranquility.” In short, Section 5 concerns itself with the territorial jurisdiction of Kenyan Courts and Section 69 deals with extraterritorial offenses. If anything, concluded Justice Maraga:

“on the established principle of statutory interpretation that in event of inconsistency in statutory provisions the “later in time” prevails, it is Section 69 [passed in 1967] which should supersede Section 5 [passed in 1930] but there is no warrant for that as there is no conflict between the two sections.”

MV Courier, the pirated ship at issue in Hashi (photo: ShipSpotting.com)

The second basis for overturning the High Court’s ruling arises out of the 2009 repeal of Section 69 of the Penal Code and its replacement with Section 369 of the Merchant Shipping Act. Below, the High Court suggested that repealing Section 69 took the crime of piracy jure gentium off the books. However, Section 369 Merchant Shipping Act, the article replacing Section 69, closely tracks UNCLOS article 101’s definition of piracy under international law. Accordingly, although the Merchant Shipping Act does not include the Latin phrase “jure gentium,” the crime of piracy under international law, according to the Court of Appeal, survived the statutory change.

In the alternative, Justice Maraga pointed to Section 23(3) of the Interpretation and General Provisions Act, which states that in the case of a law being repealed mid-proceeding, that proceeding shall move forward “as if the repealing written law had not been made.” Because the act in question was allegedly committed on March 3, 2009 and Section 69 was not repealed until September 1, 2009, the above-mentioned interpretive provision would apply in this case.

The final issue under consideration was the broader question of whether Kenya was authorized under international law to try piracy cases where the act in question was committed outside Kenya’s territorial jurisdiction by perpetrators and against victims who are not Kenyan nationals.

Justice Maraga responded by noting that piracy was a crime of universal jurisdiction and recounting Kenya’s participation in and adoption of UNSCR 1918 in April, 2012. This resolution “Calls on all States, including States in the region, to criminalize piracy under their domestic law and favourably consider the prosecution of suspected…pirates apprehended off the coast of Somalia…” Ultimately, Justice Maraga concluded that:

the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.

This decision should be welcomed by the international community, especially those involved in the prosecution and detention of suspected pirates. Most immediately, Hashi allows for five separate piracy cases brought under Section 69 of the Kenyan Penal Code to move forward, clearing up a two-year backlog. More importantly, however, the Court of Appeal’s unequivocal acceptance of the principle of universal jurisdiction, its applicability to piracy jure gentium, and its incorporation in Kenyan municipal law ensures that Kenya can continue to play a central role in the regional prosecutions of piracy suspects.

New Article: Pirate Accessory Liability

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

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

Kiobel Oral Argument: Piracy May Spell Trouble for Shell

The Supreme Court opened up its October term with a healthy dose of international law in Kiobel v. Royal Dutch Shell. The petitioner, Esther Kiobel, is bringing suit against Royal Dutch Shell (Shell) alleging that the oil company aided and abetted the Nigerian government in committing gross human rights violations in the oil rich Ogoni region of Nigeria.

This is the second time this year that the Court has heard Paul Hoffman’s arguments in favor of the plaintiffs and Kathleen Sullivan’s arguments on behalf of Shell, and maritime piracy played a role in both rounds of arguments.

The first round of Kiobel oral arguments considered whether the Alien Tort Statute (ATS) could be applied to corporations as well as natural persons. There, Justice Breyer evoked the concept of “Pirates, Incorporated” to inquire into whether an in rem action against an 18th century pirate could be foreclosed because “Pirates, Inc.” rather than the individual pirate, owned the property at issue.

The United States Supreme Court

In the second round of oral arguments, held yesterday morning, the issue had changed from whether the ATS can be applied to corporations to whether it can be applied extraterritorially. Despite this change of focus, maritime piracy played an even more important substantive role in the second iteration of the Kiobel arguments than the first.

Piracy first came up when Justice Scalia asked Royal Dutch Shell’s attorney, Kathleen Sullivan, whether she believed – as Scalia thought she “must” – that the ATS applied to high seas conduct. She did not. Ms. Sullivan then quickly tried to turn her argument to the Marbois incident concerning an assault on a French diplomat.

But Chief Justice Roberts immediately raised the question of piracy again, noting that “it was the most clear violation of an international norm” at the time of the ATS’s passage.

Ms. Sullivan again attempted to minimize her high seas argument, noting that even if the justices concluded that the ATS reached high seas conduct, it does not extend into the territory of another state. However, she doubled down when she argued that Sosa v. Alvarez-Machain – the last ATS case heard by the Supreme Court – does not foreclose the possibility that the ATS’s reach stops at the high seas, as that opinion stated that piracy might be an area covered by the statute.

Despite her repeated attempts to stray away the issue of piracy, the oldest international crime came up again and again, including in the context of Filartiga v. Peña-Irala, where the Second Circuit held that, “[f]or the purposes of civil liability, the torturer has become – like the pirate and slave trader before him – an enemy of all mankind.”

As Shell’s attorney, Ms. Sullivan wished to steer clear of the issue of maritime piracy for several reasons. The first is that the Supreme Court explicitly found that the First Congress meant to include piracy as one of three torts available to 18th century ATS plaintiffs. The Supreme Court would likely be reluctant to admit that it was wrong less than a decade after Sosa was handed down.

Second, foreclosing ATS claims that occur on the high seas is the furthest possible extension of the respondents’ argument, one that the majority need not adopt to reach the respondents’ desired verdict.

Finally – and this may have been what Justice Scalia was getting at when he initially posed the question – it is difficult to find an example of an American law that applies on the high seas but not on foreign soil.[1] The presumption against extraterritoriality is purely a creature of Congressional intent, and it seems that Congress rarely distinguishes between the high seas and foreign soil when considering a statute’s extraterritoriality.

If the conservatives on the Supreme Court find the argument that ATS application on the high seas and on another country’s soil rises and falls together persuasive, there is enough historical evidence that the ATS was meant to apply to piracy that more newly-minted universal violations could ride on piracy’s coattails and allow for extraterritorial application of the ATS.

The effect such an opinion would have on pending litigation over a high seas requirement for facilitators of piracy is better saved for another day.


[1] Depending on the ultimate outcome of pending litigation, a notable exception to this general rule could be, however ironically, 18 USC § 1651, the statute criminalizing piracy.