Historic Piracy Trial Opens in Italy

March 27, 2012 by 1 Comment

Another landmark piracy trial involving alleged Somali pirates opened on 23 March 2012 in Rome. The trial is the first international piracy trial taking place in Italy, mirroring similar trials already held in France, Germany, the Netherlands, Spain and the US, among others, in addition to “regional prosecutions” in the Seychelles and neighboring States in the Gulf of Aden. This trial provides a perfect opportunity to examine the interplay of international and municipal law as Italy has incorporated in its own fashion the relevant provisions of UNCLOS and the SUA Convention.

Factual Background – Citadel Saves Seafarers

Before reaching these legal provisions, it is important to have an understanding of the rich factual tapestry underlying this case. Nine suspected Somali pirates have appeared before the Court d’Assise of Rome in connection with the 10 October 2011 attack and highjack of the Montecristo, an Italian-owned cargo vessel, some 600 miles off the Somali Coast. At the time of the attack, the Montecristo was en route to Yemen transporting scrap iron from Liverpool, UK to Vietnam, The vessel’s twenty-three men crew was composed of Italians, Indians and Ukrainians. Among the seven Italians on board were four civilians with security tasks, although unarmed.

According to media reports on the incident, the pirates approached the Montecristo from two skiffs and a mothership, firing at the vessel before successfully boarding it. The vessel’s crew immediately sought refuge in a fortified citadel, from which it could control the engine and continue steering. Some 24 hours after the attack, the Montecristo and its crew were rescued by UK and US troops in a NATO Ocean Shield operation. The then Italian Minister of Defence has since indicated that, prior to the security blitz, Italy agreed with UK authorities to detain and try the perpetrators before its national courts. Despite the pirates managing to cut off the vessel’s means of communication, the crew was able to communicate with the naval authorities, apparently tossing a message in a bottle attached to a flashing beacon. With the crew out of harms’ way, the RFA auxiliary ship Fort Victoria and USS frigate De Wert headed to the rescue, launching a helicopter raid from the former. Eleven suspected pirates were found on board and surrendered without opposing any resistance. Four other suspects were later intercepted 200 miles off the Somali coast on an Iranian dhow deemed to be the pirate mothership from which the attack on the Montecristo was launched. Twenty Pakistani members of the hostage crew manning the hijacked dhow for the pirates were freed. Ladders and weapons were also found on board,  including a rocket-propelled grenade as well as life jackets from the Asphalt Venture, a Panama-flagged ship previously hijacked in 2010 and released after payment of a ransom. All fifteen suspected pirates were handed over to Italian authorities and their arrest confirmed. During the judicial investigation into the incident, two suspects from Pakistan were found to have been also previously kidnapped by pirates. They were therefore released by the Italian authorities.

Prosecutors have charged the alleged pirates with depredation and damage to a foreign vessel, kidnapping and illegal possession of weapons. According to the prosecutors, the pirates have connections with Al-Shabaab and the attack on the Montecristo was aimed at financing its terrorist activities and foster a campaign of obstruction of the free maritime transit in the Indian Ocean. The Italian government is participating in the trial as a civil party not only to emphasize the gravity of modern day piracy as communis hostis omnium but also to highlight its relevant social and economic costs vis a vis security and other prevention and deterrence measures. The trial will continue on 15 May 2012 with the testimony of the Montecristo’s captain as well as the captain of the Iranian dhow. The remaining four alleged pirates were previously found to be below 18 years of age and their case was therefore transferred to the juvenile courts. Their trial will commence on 2 April 2012, also in Rome, and will hopefully shed light on the phenomenon of the involvement and use of juveniles as pirates.

Notably, the highjack of the Montecristo triggered the deployment of military forces onboard Italian merchant ships as Vessel Protection Detachment to protect these against pirate attacks. Law N. 130 of 2 August 2001 allows for the deployment of both army personnel as well as contractors onboard commercial ships. As widely reported, two Italian marines on duty aboard the container ship Enrica Lexie are currently detained in Kerala, India in connection with the murder of two Indian fishermen during the shooting of a suspected pirate boat in the Indian Ocean. In 2005, Italy was the first nation to deploy one of its military ships off the Somali coasts, the frigate Granatiere, with anti-piracy tasks. Contrary to an increasing number of other States, Italy did not fully implement the provisions of L. 130/11 allowing privately contracted armed security guards on board of merchant ships operating under its flag. Previously, 2 Italian-flagged ships, the oil tanker Savina Caylyn and the cargo ship Rosalia D’Amato were captured by Somali pirates and released only after the payment of ransoms.

Italian Anti-Piracy Legislation

In connection with the holding of these trials, it is worth highlighting the main anti-piracy norms currently in force in Italy with regard to piracy and armed robbery at sea. Italy ratified the 1982 UNCLOS by means of Law N. 689 of 2 December 1994 which also gives full execution to the Convention on Italian soil. Italy also ratified and gave full execution to the SUA Convention, adopted in Rome on 10 March 1988, with Law N. 422 of 28 December 1989. Article 3 of L. 422/89 introduced various terms of imprisonment for the crimes contained in the Convention. Italy first criminalized piracy by adopting its Navigation Code back in 1942. Articles 1135-39 of the Italian Navigation Code contain the relevant regime for the criminalization of piracy within the Italian judicial system. Notably, Articles 1135 provides as follows (unofficial translation):

Art. 1135 – Piracy

1.   The Master or Officer of a national or foreign ship, who commits acts of depredation against a national or foreign ship or its load, or for the purpose of depredation commits violence against any person on board, shall be punished with a term of imprisonment from ten to twenty years.

2.   For all the others members of the crew, punishment is reduced by a maximum not exceeding one third; for those individuals extraneous to the crew, the punishment is reduced to the maximum of a half.

Article 1136 is particularly interesting, criminalizing the suspicion of piracy where a ship is illegally equipped with weapons while lacking proper navigation papers:

Art. 1136 – Ship on Suspicion of Piracy

1.   The Master or Officer of a national or foreign ship, illegally equipped with weapons, who sails without proper certification, shall be punished with imprisonment from five to ten years.

2.   Para. 2 from art. n. 1135 applies.

This Article, although rarely utilized, does not find immediate comparison within the UNCLOS provisions relevant to the repression of piracy. As elucidated below, its applicability is relevant as a matter of municipal legislation pursuant to the norms enshrined in Article 7 of the Italian Penal Code. Question arises, yet, on the basis of which national legislation, particularly when concerning Somali pirates, the illegality of weapon possession shall be assessed. Article 1137 instead refers to crimes committed within the Italian territorial seas and is relevant for the punishment of armed robbery at sea. Articles 1138-39 are also worth mentioning, criminalizing not only the seizure of a ship or an agreement to this end, respectively, but also providing for a harsher punishment regime for those who promote these acts.

Considering the charges against the suspected pirates, the oldest of which is of twenty four years of age, it has also to be noted that under Article 289bis of the Italian Penal Code, the crime of kidnapping in connection with terrorism carries a possible sentence of twenty-five to thirty years of imprisonment.

In addition, Article 5 of Law Decree No. 209 of 30 December 2008, relevant to Italy’s participation to several humanitarian and peace enforcement missions, originally established a series of criminal sanctions with specific reference to international maritime piracy. In particular, it states that crimes referred to in Articles 1135-36 of the Italian Navigation Code, committed either on the High Seas or territorial waters and covered by the EU NAVFOR ATLANTA mission, are punished in accordance with Article 7 of the Italian Penal Code, which allows the punishment of certain crimes committed outside the Italian territory by foreigners or national citizens. Pursuant to L. 422/89, Article 7 also applies for crimes contemplated in the SUA Convention. In accordance with Law Decree N. 61 of 15 June 2009, to be punished under this Article, the crimes committed off the coast of Somalia need to retain a link with national interests, for instance damage to Italian citizens or property. Furthermore, territorial jurisdiction for these crimes resides in the Ordinary Tribunal based in Rome.

Finally, in case of arrest for these crimes, Article 5, L. 209/08 extends the provisions of Article 9, para. 5, of the Law Decree N. 421 of 1 December 2001, relevant to Italy’s participation in the chapter of the Enduring Freedom mission in the Horn of Africa. Article 9 provides for the applicability of stricter procedures in cases where it is not immediately possible to bring the arrested individuals before the competent judicial authorities for the confirmation of their arrest. These provisions include the possible extension of further 48 hours after formal notification of the arrest and the use of audio-video conference means for interrogation, confirmation of the arrest and access to a defence lawyer in the place of temporary detention.

How will the prosecution charges play out in the Montecristo trial? Particularly relevant appears the piracy-terrorism link, specifically in relation with the funding of Al Shabaab. In this regard, the trial might become the first major trial discussing the link between the activities of the pirates and those of the militias which has been since long theorized but never so far clearly established.

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Direct application of the international law of piracy in municipal systems

March 22, 2012 by Leave a comment

Cross-posted at The View From Above.

Most legal authorities assume that signing and ratifying the UN Convention on the Law of the Sea is insufficient, in and of itself, to provide a state a jurisdictional basis to prosecute acts of piracy on the high seas.  For example, Jose Luis Jesus, the former President of the International Tribunal for the Law of the Sea has explained:

The international legal regime on piracy, as codified in articles 100 to 107 of UNCLOS, is, as already mentioned, a jurisdictional regime and, as such, only allows States to arrest pirates, seize their ships and cargo, and bring them to trial in the State’s domestic judicial system. This legal regime is not predicated on the existence of an international criminal substantive law, nor does it contemplate any international judicial means or structure to try pirates.

As it stands now, there is no international court or tribunal that includes in its jurisdiction a mandate to try pirates. Once a State asserts its jurisdiction over pirates and their ship by arresting them, under the international piracy regime, that State is encouraged to try the pirates and dispose of the pirate ship and its cargo in accordance with its own national legislation and judicial system. This means that if the arresting State does not have penal legislation allowing for the punishment of pirates, or if the arresting State does not want to try them in its own territory for political or other convenience, then the legal regime as codified in UNCLOS is of little use.

Similarly, the most recent UNSG report of 19 January 2012 on the problem of piracy in the Gulf of Guinea states that UNCLOS provides for universal jurisdiction to prosecute pirates, but since Benin’s Maritime Code does not incorporate these provisions, Benin’s jurisdiction on piracy acts committed on the high seas is limited to acts committed by its citizens or on board of Benin’s ships.  The same concern has been expressed regarding the failure of the Transitional Federal Government to pass legislation criminalizing piracy in Somalia. Finally, based on UNCLOS Article 100 which requires that states must “cooperate to the fullest possible extent in the repression of piracy”, Douglas Guilfoyle has stated that “the inference is that States have no duty to enact relevant national offences [for piracy] and have ‘a certain latitude’ to cooperate in suppressing piracy by means other than prosecution.”

This view is understandable when observed through the lens of treaty law whereby implementing legislation is a necessary prerequisite to application within a municipal system. But the international law of piracy has also been accepted as customary law. For example, the 2010 Digest of US Practice in International Law, though noting the U.S. has not signed or ratified UNCLOS, states, “the actions and statements of the Executive Branch over more than six decades reflect the consistent U.S. view that this definition [of piracy in Article 101 of UNCLOS] is both reflective of customary international law and universally accepted by states.” Furthermore, each of the UN Security Council resolutions on piracy in Somalia and the Gulf of Guinea have emphasized that the only definition for the crime of piracy in international law is the one set forth in UNCLOS to which 162 states are states parties. UNCLOS has codified the customary international law of piracy.

Considering the law of piracy is settled both in treaty as well as customary law, is it possible that it is directly applicable in municipal systems without the need for implementing legislation? Some states accept that international law, especially with regard to jus cogens or very serious crimes (such as crimes against humanity and war crimes), applies directly within that state without the need to pass such legislation. With regard to piracy, whether or not it may apply directly would appear to hinge on a number of factors, including the gravity of the offence, whether there is a duty to prosecute in international law, whether the applicable treaties are self-executing, and the nature of a municipal system as monist or dualist. (Ward N. Ferdinandusse’s study is particularly helpful on this point.) Direct application of international law is not without precedent in African states, but will obviously need to be addressed on a case by case basis. To cite but one intriguing example, the 2010 Kenyan Constitution provides in Article 2 that the general rules of international law shall form part of the law of Kenya and that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

The somewhat academic question of the indirect or direct application of international legal norms may not have been addressed by many African states confronted with piracy. Therefore, in the absence of clarity on this issue, the least risky practice would be to assume there is no direct application and insist on the codification of the legal definition of piracy in municipal law prior to instituting any prosecution. Indeed this seems to be the strategy adopted by the UN Security Council Resolutions on the issue. Is it, nonetheless, possible that the international law of piracy is directly applicable in certain African states, thereby rendering criminalization in positive law superfluous? The answer could have important ramifications for prosecutions in states without anti-piracy legislation or in those with incomplete legislative frameworks.

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UK House of Commons Issues Piracy Report, Eyes Private Security Guards on Board, Local Prosecutions in East Africa (Part II)

January 21, 2012 by Leave a comment

This is the second part of an earlier post discussing the UK Foreign Affairs Committee Report on piracy off the coast of Somalia.

Regional and Local Prosecutions of Pirates (paras 74-110)

The trial and prosecution of pirates is also an extremely relevant, and pressing, topic. As noted in the Report, the peculiar features of modern day piracy, particularly in the Gulf of Aden and the lack of cohesive governance in Somalia, create several practical difficulties, including the apprehension, detention on board and transfer of suspected pirates. One of the primary purposes of policing activities through naval operations is, indeed, its deterrent effect on pirate attacks rather than the arrest and prosecution of the perpetrators.

The collection of sufficient evidence to secure successful prosecutions is particularly problematic, as we noted in a recent post. It should be remarked how any evidentiary assessment on whether to bring alleged perpetrators to justice should, ordinarily, be best placed in the hands of judicial authorities as neutral fact-finders rather than subject to the prelimary evaluation by the naval authorities upon the capture of suspected pirates. Moreover, the Report correctly points out how such assessment could benefit from modern technological means already available to the naval authorities, namely video, radar and satellite recording. In addition, remote testimony via video or audio link is recommended, particularly when victims are located in third countries or, more likely, have already set sail.

Modern international law asserts the possibility to exercise universal jurisdiction over piracy prosecutions. However, as one expert who gave evidence before the Committee put it, the obstacle to prosecution is not identifying the appropriate jurisdiction, but rather the inability, and unwillingness, to prosecute. In addition, the surge of modern piracy and armed robbery at sea has exposed the current inadequacy of national laws, including in the UK, against piracy. For those operating within the field of international criminal prosecutions, the phenomenon is not new. Several states suddenly found themselves incapable to put Genocide suspects on trial before municipal courts due to the inadequacy of their national laws in enacting the provisions of the Genocide Convention.

We have also discussed whether the response to modern piracy should contemplate a revision of the existing international counter-piracy legislation and mechanisms, in particular because it appears that current treaties have difficulty in addressing the difference between political and purely-financial motivations of pirates attacks, or whether attempted attacks are also punishable. Interestingly, as noted in the Report, the IMO has taken the view that “the development of a new multilateral instrument might be premature, or unnecessary, in light of the existing international legal framework on piracy, which was generally considered to be adequate”. Some concerns remain, however, particularly on the practical implementation and effectiveness of these mechanisms.

The main recommendation contained in the Report with regard to options for the investigation and prosecution of pirates is therefore the rejection of the establishment of a specialized Somali tribunal, initially recommended by the UN Special Adviser to the Secretary General Jack Lang as one possible alternative. This option would have established a court outside of Somalia in a neighboring state (most likely Tanzania) with funding and administration from the international community, but would employ Somali judges applying Somali law. There appear to be a number of compelling legal complications against such court, including its legality vis a vis the Somali Constitution. The UK Report rejected this proposal stating:

 “the Government was right to oppose the establishment of an extra-territorial Somali court as proposed in the Jack Lang report to try Somali pirates in a third country. We recommend that the Government set out in its response to this report its views on the more recent proposals for specialised anti-piracy courts established within regional states under ordinary national law.”(para. 92)

Among the main arguments in support of this conclusion are also the possible high costs of an extra-territorial institution, with a tentative figure of $100 million a year. This is not convincing, particularly considering the lack of clarity at the basis of this figure as well as the present estimates of the global costs of piracy, which already identified high costs from the current prosecutions as well as a cost of ransoms alone capping over $130 million per year. In addition, this figure would remain a fraction of the overall economic costs of piracy. It must be acknowledged, however, that an extra-territorial court, financially supported by international organizations, might not be able to promptly contribute as an anti-piracy deterrent and develop effective outreach capabilities within the turned-pirate population in and around the Gulf of Aden.

The rejection of the UN-funded option reflects a gaining trend to favor specialized piracy prosecutions within the area where the alleged attacks took place, counting on a much stronger deterred effect than trials taking place thousands of miles away. Local prosecution projects have already taken shape in Kenya, Mauritius and Seychelles, among other countries in the region. In addition, a small number of historic trials were also held in the US, Germany and the Netherlands, mainly because the alleged pirates were captured by the naval forces of these countries, or due to a nexus between the piracy acts and these latter.

However, while piracy prosecutions in the UK are still contemplated, albeit in limited circumstances, in the Report, the support expressed therein for local or regional anti-piracy courts also present several difficulties which should be carefully weighed. Requesting the help of regional states to prosecute pirates in their courts does not obviate the need to provide support to the various local authorities in the form of financing, training, monitoring and oversight extending not only to the mere prosecutions and trials of suspected pirates, but also to transfer, investigation, security, procurement and infrastructures as well as pre-trial and post sentence detention. Indeed, the fate of a recently arrested group of alleged Somali pirates by the UK Royal Navy after both Kenya and the Seychelles have refused to detain them because “their court systems are swamped”  is a rather timely reminder of some of these difficulties. As the Kenyan government stated last year when it refused to continue piracy prosecutions, ““We discharged our international obligation. Others shied away from doing so. And we cannot bear the burden of the international responsibility.”

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