The Illegality of a General Pirate Amnesty

August 21, 2012 by 7 Comments

The Shiuh Fu No.1 fishing boat, pirated Christmas Day 2010; the whereabouts of the crew of 13 Chinese, 12 Vietnamese and 1 Taiwanese mariners is unknown

It is estimated that 245 hostages and 7 hijacked vessels remain in pirate hands. There exists a kind of stalemate as pirates hold prisoners and ships in Somali ports while negotiations between pirates and shipping insurance companies have slowed or broken down completely. Somalia’s presidential candidates have offered one possible solution to this stalemate. President Sheikh Sharif Sheikh Ahmed has said that, “Those who leave behind what they have done will be forgiven.” For his part, Prime Minister Abdiweli Mohamed Ali has said that “There is no mercy for pirates, not from me, but if someone gives up and says, ‘I repent and want forgiveness’, then we have to do it.” However, a general amnesty for pirates might be illegal and, in any event, might be ineffectual.

Pursuant to UNCLOS, Article 100 “Duty to cooperate in the repression of piracy” provides that “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” UNCLOS does not specifically assert there is a duty to prosecute pirates once apprehended. On this point, the International Law Commission, in its commentary to the predecessor treaty (1958 LOS treaty), has said of this provision that “Any State having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law.” But it also asserted that states “must be allowed a certain latitude as to the measures it should take to this end in any individual case.” It has been convincingly argued by others (namely Geib and Petrig) that prosecution is discretionary under this provision. Geib and Petrig also note that there may be an obligation to prosecute certain acts of armed robbery at sea which are in violation of the SUA Convention and the Hostages Convention. However, Somalia is not a party to either of these conventions. Therefore, a general amnesty for Somali pirates arguably would not be in violation of the duty under Article 100 of UNCLOS or other treaty obligations.

There also exists under international law, a duty to prosecute egregious human rights violations, such as genocide, grave breaches of the Geneva Conventions, torture, and crimes against humanity. (for a summary see this decision of the ECCC Trial Chamber). International tribunals and treaty bodies have generally held amnesties to be incompatible with this overriding duty to prosecute. In particular, the Special Court for Sierra Leone Appeals Chamber has held that blanket amnesties are impermissible under international law for universal jurisdiction crimes. The duty to prosecute arises not only from the treaty obligations taken on by states but also the egregiousness of the proscribed conduct. Based on this international norm, there may be a duty to prosecute pirates who have engaged in the practice of torturing hostages or for any other act constituting piracy if sufficiently egregious. It has been argued that piracy is not among the most egregious of international offences, but piracy consistently garners impressively long sentences and capital punishment remains a potential penalty for pirates in the United States. Based on this background, a general amnesty of pirates might run afoul of an international duty to prosecute.

One possible avenue for the provision of amnesties is discussed in the Provisional Constitution of Somalia. Article 111 provides for the creation of a Truth and Reconciliation Commission, “established […] to foster national healing, reconciliation and unity”. It further provides the TRC’s mandate shall include “bearing witness to, record and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations”. It is not clear if the drafters intended this provision to encompass possible amnesties for pirates. However, the language of the Article is sufficiently broad to apply to such crimes. Any such amnesties would have to be approved by the TRC composed of traditional elders, members of the Federal Parliament, respected members of civil society, judges and security personnel. Insofar as the TRC could dispense individual amnesties based on the particular circumstances of a case, it might not run afoul of an international duty to prosecute.

This brings us to two very practical matters. Even if such amnesties were granted by the Somali government, would they be respected by other states were they to gain custody of these individuals? Any state may prosecute Somali pirates based on universal jurisdiction. States whose vessels and nationals have been victim of pirate attack would have to exercise a great deal of restraint to not prosecute such individuals due to an amnesty dispensed by the Somali government.

Finally, there is no guarantee that an amnesty for Somali pirates would be effective at definitely quashing the phenomenon in the long term. Nigeria provides a helpful example (see here for background). In 2009, the Nigerian government offered many of the militants/pirates in the Niger Delta an amnesty and stipends if they agreed to stop attacks of oil platforms and other interests. The cost of this amnesty programme is immense, estimated to be $405 million in 2012 alone. But not all ex-militants have found new jobs and there is an increasing danger that the attacks on off-shore oil interests may reignite. For Somalia, the lessons are two-fold: (1) an amnesty must be accompanied by alternative job training and job creation to be effective and (2) such a programme is potentially very expensive and perhaps outside of its means.

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Update: Le Ponant Trial Judgement

August 20, 2012 by Leave a comment

Our readers might remember Valerie Gabard’s guest post on the recent trial for the 2008 hijack of the French luxury yacht Le Ponant and the kidnap of its crew. After four years of pre-trial detention, two of the six Somali accused were acquitted, while the four others were convicted and sentenced to four to ten years of imprisonment.

We have now obtained the trial judgement in the case, issued by the 2nd Section of the Court d’Assise of Paris. Contrary to initial speculations, it seems that the Prosecution have decided not to appeal the Court’s decision, which is therefore final. Unfortunately, the judgement won’t shed much light on the Court’s motivations. In keeping with French practice for criminal trials, the judgement, at least when looked at from the perspective of international justice standards, is scantily reasoned, containing little or no more than the accusations against the accused, a recall of the main trial procedural steps and the court’s verdict.

It has to be recalled that the accused were charged with kidnapping, illegal confinement and organized gang theft in pursuance of Articles 224-6 of the French Criminal Code but not with a specific offence of committing piracy due to the temporary absence, in 2008, of a specific definition of piracy in the French criminal system. In the meantime, a new Anti-Piracy legislation was introduced in January 2011.

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A High Seas Requirement for Pirate Facilitators Under UNCLOS?

August 18, 2012 by Leave a comment

Regular contributor Jon Bellish presents the following commentary, cross-posted at The View From Above. We previously posted on this topic here and here where Roger reached similar conclusions to Douglas Guilfoyle, cited below. Jon Bellish is a Project Officer at the Oceans Beyond Piracy project in Boulder, Colorado (though all of his views are his own), and he has experience in United States piracy trials. He just got on Twitter.

The economic conditions in Somalia are such that there is no shortage of men willing to hijack a ship, risking their lives in hopes of earning of the equivalent of 20 years of income – $5,000 in Somalia – out of a single $1.5 million ransom. That basic reality is the driving force of modern maritime piracy, and it leads to a similarly basic conclusion.

Aside from fixing the economic situation in Somalia, prosecution of those higher up in the criminal chain of conspiracy – the investors and financiers of piratical operations – is the most effective, non-violent means of to putting an end to maritime piracy. If labor is cheap and capital is scarce, it makes sense to go after the capital.

The United States government has done its part by prosecuting two pirate negotiators,[1] Mohammad Saaili Shibin and Ali Mohamed Ali. The current dispositions of these cases highlight an interesting and important legal issue stemming from a common characteristic of piracy higher-ups. They themselves never set foot on the high seas.[2]

In Shibin’s case, Judge Robert Doumar allowed his trial to proceed; Shibin was found guilty and sentenced to 12 terms of life. In the Ali case however, which is still in progress, Judge Ellen Huevelle has found[3] that the perpetrator must be on the high seas for a crime of universal jurisdiction to occur.

What accounts for this discrepancy in United States courts? Who has the better of the argument? The answers to these questions have profound implications for the future of prosecuting those who profit most from piracy.

At the heart of this disagreement is a dispute over the proper interpretation of the UNCLOS definition of piracy and the United States’s federal statute criminalizing piracy under the law of nations. Both of these texts must be read according to one of the most basic canons of statutory interpretation — that statutory language not be read as being duplicative or ineffectual.

Opponents of a high seas requirement, such as Douglas Guilfoyle at University College London, argue  that UNCLOS art. 101’s definition of piracy makes it clear that performing piratical acts carries a high seas requirement, but acts of inciting or intentionally facilitating piracy can be performed anywhere, implying that both are crimes of universal jurisdiction.

To support this argument, opponents cite art. 101(a)(i) of UNCLOS, which states that piracy “consists of…any act of violence or detention [or deprivation]… committed for private ends by the crew… of a private ship…and directed…on the high seas, against another ship” [emphasis added]. They contrast that section with the next part of the piracy definition, art. 101(c), which says “any act of inciting or of intentionally facilitating an act described in subparagraph (a)” constitutes piracy. Opponents of a high seas requirement for facilitators conclude that, because UNCLOS announces a high seas requirement in subparagraph (a) and not in subparagraph (c), no such requirement exists for facilitation.

Conversely, proponents of a high seas requirement, including Northwestern University’s Eugene Kontorovich, cite various provisions of UNCLOS suggesting that universal jurisdiction over maritime piracy exists only where the act takes place on the high seas.

Chief among these provisions are arts. 100 and 105. The former limits a state’s duty to cooperate in the repression of piracy, and the latter restricts states’ universal capturing and adjudicating authority over pirates to acts occurring on the high seas. Additionally, art. 86 explicitly states that Part VII of UNCLOS (the part including the definition of piracy) only applies to the high seas and other areas outside the jurisdiction of any state.

Opponents counter that even if all of the aforementioned high seas references are operable, the drafters’ inclusion of a high seas requirement in 101(a) is otiose if 101(a) and (c) already had an implicit high seas requirement. Any other reading, they argue, is contrary to one of the most fundamental canons of statutory interpretation.

This is a mistake stemming from a conflation of UNCLOS’s definition of piracy and its pronouncements on universal jurisdiction. Opponents may be correct in suggesting that there is no high seas requirement for facilitators to commit statutory piracy as defined by UNCLOS, but they are wrong in arguing that performing an act described in art. 101 leads directly to universal jurisdiction.

Where piracy is concerned, UNCLOS performs at least two discrete functions: defining piracy and delineating the metes and bounds of universal jurisdiction over piracy. Art. 101 defines piracy as, inter alia, any act of violence, detention or deprivation on the high seas or any act of inciting or intentionally facilitating such an act. Where the statutory definition is concerned, there is a high seas requirement for perpetrators but none for inciters or facilitators.

Art. 101 says nothing about universal jurisdiction, however, and the parts of UNCLOS that do discuss universal jurisdiction – arts. 100, 105, and 86 – make it unmistakably plain that such jurisdiction extends only to acts physically performed on the high seas.

This dichotomy between the statutory definition of piracy and the high seas requirement for universal jurisdiction over piracy is borne out in 18 U.S.C. § 1651, which reads, “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.”

Section 1651 splices the definition of piracy and its high seas requirement as precondition for universal jurisdiction, outsourcing the former to international law (“as defined by the law of nations”) while making the latter explicit in the treaty (“[w]hoever, on the high seas”) , which is entirely consistent with the plain language of UNCLOS and the canon of construction at issue.

This means that, as defined by UNCLOS, negotiators and financiers who never set foot on the high seas have committed piracy, but that they have not committed a crime of universal jurisdiction. Unless higher-ups enter the high seas, they can be prosecuted only under the territorial, national, passive personality, and protective bases for jurisdiction.

At first blush, it may appear that such an interpretation does not bode well for those seeking to put an end to the global menace of maritime piracy, especially in light of the widely-held belief that the surest non-violent way to deter the piracy, apart from economic reconstruction in Somalia, is through the aggressive prosecution of so-called pirate “kingpins.”

In the coming weeks, however, I hope to dispel the notion that a high seas requirement for facilitators is bad for the international community. Such a requirement is in line with the policy rationale behind universal jurisdiction and it may ultimately be useful in prosecuting and punishing pirate financiers who never leave dry land.

[1] To be clear; negotiators are not financiers. Financiers perform much less physical labor and reap much more of the profits than negotiators. Though it is financiers that should be the ultimate targets, negotiators are in a similar legal position and are therefore highly relevant. Both groups facilitate, rather than perpetrate acts of piracy, and neither tends to enter the high seas.

[2] This fact was stipulated in Shibin’s case but is still at issue in Ali’s. Although the government claims Ali spent only 24-28 minutes outside Somali territorial waters, it has admitted that there is no evidence that Ali actively facilitated piracy during that time period.

[3] Take a look at Judge Huvelle’s opinion, which is a fine example of the U.S. Federal Bench’s appreciation and understanding of international law.

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Negotiator Sentenced to Multiple Life Terms – SCOTUS on the horizon

August 15, 2012 by Leave a comment

Defendant Mohamed Salid Shibin appears in court

As we previously discussed here and here, Mohammad Saaili Shibin has been convicted for his role as a pirate negotiator in two separate incidents. During the trial, there was evidence that the hostages were tortured, but Shibin’s main role was to negotiate a ransom payment. Shibin has now been sentenced to 12 life terms and his attorney has promised to appeal. Two issues could lead to overturning Shibin’s convictions and might soon reach the Supreme Court.

First, Shibin’s attorney has stated that piracy can only occur if someone commits robbery at sea. In other words, the issue is whether piracy under the 18 USC 1651 (which incorporates the law of nations) is an evolving or a static concept. If it is a static concept, then a robbery was necessary to complete the offence. Since Shibin never boarded the hijacked yacht, he did not commit a robbery and his conviction for piracy, the basis for the life terms, could not stand. If, however, piracy is an evolving concept, then the UNCLOS definition would prevail and, because it does not require a robbery, Shibin’s conviction would stand.

Shibin’s appeal will first be heard by a 3-judge panel of the 4th Circuit. Another panel of the same court has ruled, in U.S. v. Abdi Wali Dire, that piracy is an evolving concept. A petition for rehearing was subsequently denied in that case, and the defence is filing an appeal with the US Supreme Court. Shibin could appeal the same issue to the 4th Circuit and might win if a different panel hears the case. However, if his appeal is denied, which is likely, he will have to take the case to the US Supreme Court as well.

The second issue that might result in overturning his convictions is whether Shibin’s actions in Somali territory can constitute piracy under the law of nations. The Federal Court in the DC Circuit recently held, in U.S. v. Ali, that the international crime of piracy can only be committed on the high seas. Therefore, negotiating a ransom for pirated hostages on land or within a state’s territorial waters does not constitute piracy. There is a healthy debate as to the correctness of this decision. See here and here. Nonetheless, it appears that Shibin only boarded the pirated vessel in Somali territorial waters. The U.S. Attorney prosecuting Shibin said that Shibin was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters.Therefore, if the Ali-rationale were applied in Shibin’s appeal, his convictions would be overturned. Even though Shibin did not appear to make this particular argument at trial, if it is determined that piracy under the law of nations does not include actions from Somali territory, universal jurisdiction would not permit the U.S. to pursue this prosecution. Therefore, this is a jurisdictional issue that can be raised for the first time on appeal.

Members of Ogoni Community interested by Kiobel v. Royal Dutch Shell Source: Amnesty International

There you have it: two issues that could invalidate Shibin’s convictions. Either or both of these issues could reach the Supreme Court, perhaps not in Shibin’s case, but possibly in U.S. v. Dire. The justices may be inclined to grant certiorari as a rhetorical counterpoint to Kiobel v. Royal Dutch Shell which is on the court’s docket for the next term and will require the court to interpret the statutory language “the law of nations” as part of the Alien Tort Statute. The piracy cases might be helpful to those who would argue that universal jurisdiction only applies to those offenses originally contemplated and discussed by the First Congress (when the piracy law and the Alien Tort Statute were passed). According to this view, piracy would satisfy the requirement, but relatively newer crimes such as crimes against humanity would not.

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

July 26, 2012 by Leave a comment

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 also, here. 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.

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