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Home Archive for category "Piracy"

Greenpeace ‘Pirates’ and the MV Arctic Sunrise

Published on October 8, 2013        Author: 

MV Arctic SunriseAs is now well-known, on 18 September several Greenpeace activists attempted to board Gazprom’s oil platform, the Prirazlomnaya, in the Russian Exclusive Economic Zone (EEZ) bearing ropes and posters. They did do in inflatable craft launched from the Greenpeace vessel the MV Arctic Sunrise. They were soon arrested by the Russian Coast Guard. On 19 September the Russian Coast Guard boarded, within their EEZ but outside territorial waters, the Arctic Sunrise itself (a Netherlands flagged vessel) and arrested those on board.

I have already blogged at The Conversation as to why the Greenpeace protestors are self-evidently not pirates at international law. (In short, their acts were neither violent nor committed against another ship.) Vladimir Putin even agrees, but nonetheless the protestors and all aboard the Arctic Sunrise have been charged with “piracy of an organised group”.

Now the Netherlands government has commenced arbitration proceedings against Russia over the detention of the Arctic Sunrise and, it seems, the legality of its seizure. These proceedings will have two limbs: (1) seeking the release of the vessel and crew; and (2) the merits of the case concerning the lawfulness of the Russian action against both those aboard its oil platform and the Arctic Sunrise.

The case will be heard by an arbitration panel constituted under the UN Convention on the Law of the Sea (UNCLOS). This panel will have the power to order the release of the Arctic Sunrise as a preliminary measure, or if it is not constituted within two weeks the International Tribunal for the Law of the Sea will have jurisdiction to hear the prompt release case (Article 290(5), UNCLOS).

I, perhaps rather rashly, previously noted that the Russian reservation to the UNCLOS dispute settlement mechanism might pose problems to such proceedings. (The reservation purports to exclude disputes arising from certain categories of law-enforcement action.) What follows is (mostly) an explanation of why that is likely not the case.

A health warning, however: this is a long and rather technical post.

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The Possible Unintended Consequences of United States v. Ali

Published on July 10, 2013        Author: 

Jean_Lafitte,_early_19th_century,_Rosenberg_Library,_Galveston,_TexasAs Professor Guilfoyle notes in his latest post, the D.C. Circuit Court of Appeals, in the case of United States v. Ali, reached the same conclusion that he did on the question of whether territorial facilitation of piracy is subject to universal jurisdiction.  I have a post over a Communis Hostis Omnium summarizing the court’s analysis as it relates to international law, but here I want to focus on two of the potential unintended consequences of that analysis. (photo: anonymous portrait of famous Louisiana pirate Jean Lafitte, credit)

Both of these unintended consequences flow from the court’s interpretation of UNCLOS article 101. The court found that the presence of the phrase, “on the high seas” in article 101(a)(i) and its absence in article 101(c) showed that there was no high seas requirement for facilitators. The court based its interpretation on the general proposition that variations in statutory language should be read as intentional. After a two sentence analysis simply noting the discrepancy between (a) and (c), the court abruptly concluded, “[s]o far, so good; Charming Betsy poses no problems.” However, this same analysis, if applied to article 101 as a whole, produces two interesting results: it suggests that there is no high seas requirement in article 101(b), and that there is no private ends requirement in article 101(c). For some, these unintended consequences may be perceived as “problems” indeed.

First, for the same reason that the court explicitly negates the high seas requirement as it relates to article 101(c), it implicitly negates that same requirement in article 101(b). This latter provision, like article 101(c), lacks the phrase, “on the high seas.” Thus anyone operating a ship anywhere with knowledge that it has been used for piracy is open to a universal jurisdiction prosecution in the United States. The only treatment that article 101(b) received was in a footnote stating, “[a]s neither party draws support for its position from article 101(b), we need not opine on its meaning here.” This suggests that the court may not have fully considered the consequences of its analysis. From a policy perspective, this is not the gravest of results, as most will not have much sympathy for mechanics and repairmen that knowingly work for pirates. Nevertheless, it raises some sovereignty concerns for those states from which these territorial pirates would be taken for prosecution in the U.S.

Second, and more troubling, it seems clear from the court’s analysis that the mens rea for piratical facilitation is decidedly not the desire to achieve private ends. This is because, like the phrase “on the high seas,” “private ends” appears in article 101(a), but not 101(c). Which mental state should take its place? It is widely accepted that “facilitation” corresponds most closely to aiding and abetting liability. In the United States, aiding and abetting requires only that the defendant purposefully “aids, abets, counsels, commands, induces or procures” the commission of a crime. In the absence of direct evidence of specific intent, some federal appeals courts require a “purposive attitude towards” the commission of the crime, while others have held that mere knowledge is enough to sustain an aiding and abetting conviction.  At the ICTY, aiding and abetting requires something quite similar: a general intent to assist and the knowledge that the assistance will aid in the commission of a crime. Even the ICC, which has a relatively stringent mens rea requirement for aiding and abetting, only requires that the aider and abettor assist “for the purpose of facilitating the commission of [] a crime” (i.e. making the crime easier to commit). None of these standards requires the aider and abettor to share the direct perpetrator’s underlying intent. Without the private ends requirement, individuals such as the ship owner’s ransom negotiator, the pilot who airdrops the ransom, or even an American official issuing a letter of marque (a right the U.S. has maintained) may have opened themselves to a universal jurisdiction prosecution for piracy, with a mandatory life sentence.

In sum, the court’s opinion – either intentionally or unintentionally – gives the United States extremely broad latitude to prosecute acts of piracy that do not take place on the high seas. One no longer has to “renounce[] all benefits of society and government” to be subject to the common jurisdiction. All that is required is that the person helps – or operates a ship with – someone who has.

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Piracy on dry land (now with added case law)

Published on July 5, 2013        Author: 

Flag_of_Edward_England.svgIt’s nice when a court agrees with you, or comes to the same conclusion at least. In a previous post on US v Ali (here) a spirited debate broke out in the comments as to whether Article 110(c) of UNCLOS on intentionally facilitating piracy was restricted to the high seas or could apply on dry land. (credit for image, Flag of Edward England)

We now have an appeal decision holding the defendant in US v Ali can be charged with aiding and abetting piracy on the basis of acts committed within Somali territory without this being contrary to international law.

There is a potential wrinkle here, in that the logic appears to be that the US law on aiding and abetting piracy (i.e. as an accessory) can extend to acts ashore as international law allows States criminal jurisdiction over such acts as piracy (i.e., commission of the offence in Art. 110(c) means you have committed piracy as a principal). Thus Art. 110(c) creates a form of piracy per se that US law can only charge as aiding and abetting (a different form of) piracy.

I don’t think anything turns on this. If universal jurisdiction over piracy is permissive, it is up to States to work out how best (or whether) to criminalize the offences under their national law. The point is that national law not exceed the limits of that jurisdiction.

On other points, the reasoning in the decision sets aside most of the historical material commonly relied upon in these debates in favour of a plain words interpretation (an issue I’ve discussed over here).

I doubt this will be the last case on point, so it will be interesting to see what other courts and other jurisdictions make of this.

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Political Motivation and Piracy: What History Doesn’t Teach Us About Law

Published on June 17, 2013        Author: 

I’ve been meaning to write for some time on the debate caused earlier this year by the ninth circuit of the US Federal Court decision in Institute of Cetacean Research v Sea Shepherd. Somewhat controversially it held that political protesters, if they crossed the line into violent protest, could commit piracy. The point is controversial because piracy is defined under the Geneva Convention on the high seas and the UN Convention on Law of the Sea (UNCLOS) as being an act of violence committed on the high seas by a private vessel against another vessel “for private ends”, a requirement often taken to exclude “political ends”.

The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.

To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. Read the rest of this entry…

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Filed under: EJIL Analysis, Piracy
 

More Great Piracy Facts in U.S. Courts: Private Ends Edition

Published on February 28, 2013        Author: 

 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 Monday, the Ninth Circuit issued an opinion reversing the lower court and enjoining the Sea Shepherds of Whale Wars fame from coming within 500m of Japanese whaling vessels. In Cetacean v. Sea Shepherds, Judge Kozinski found, in the context of a request for a preliminary injunction in a civil action under the Alien Tort Statute, that the Sea Shepherds were likely committing piracy under UNCLOS. Judge Kozinski also found that the Sea Shepherds were violating the SUA Convention and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).

 Just as United States v. Ali presents excellent facts to test the limits of a high seas requirement for facilitators, Cetacean v. Sea Shepherds presents excellent facts to test the limits of the private ends requirement.

Some commentary has been written about the opinion already, and positions range from Kevin Jon Heller’s on Opinion Juris that Judge Kozinski “should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources” to Eugene Kontorovich’s on the Volokh Conspiracy that Judge Kozinski’s reasoning “is obviously correct.”

In reality, the question is closer than either Kevin or Eugene suggest. There are two competing conceptions of what constitutes “private ends,” and both have significant support in the drafting history. Whether the actions of the Sea Shepherds constitute piracy jure gentium depends on which of these interpretations carries the day.

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Filed under: EJIL Analysis, Piracy
 

A Report on the Possibility of Future Somali Piracy Prosecutions in Mauritius

Published on December 26, 2012        Author: 

M_STERIO.jpgMilena Sterio is Associate Professor at the Cleveland-Marshall College of Law.

Much has been written about Somali piracy.  Academics on this forum, as well as others, have debated the best options for the prosecution of suspected Somali pirates.  Most pirates are detained by powerful navies of maritime nations, such as the United Kingdom, Denmark, the Netherlands, or by joint maritime fleets such as the EU NAVFOR.  Yet, most capturing nations are not interested in prosecuting detained pirates in their national courts under true universal jurisdiction, because such prosecutions are expensive, logistically difficult and politically unattractive.  In order to avoid the undesirable policy of catch-and-release, maritime nations concluded transfer agreements with regional states interested in opening their national courtroom doors to Somali piracy prosecutions.

Over the past five years, transfer agreements have been concluded with Kenya and the Seychelles, and dozens of successful prosecutions have taken place in Mombasa and in Victoria.  Mauritius joined the “club” or piracy prosecuting nations recently, by concluding similar transfer agreements with the United Kingdom and the European Union; apparently a transfer agreement is also being negotiated with the United States.  However, as of today, Mauritius has not actually accepted any detained pirates for prosecution purposes.  Professor Michael Scharf of Case Western Reserve University School of Law and I visited Mauritius from December 3- December 7, where we met with various government officials in order to advise them on best strategies for future Somali piracy prosecutions in Mauritian courts.  While I have already blogged about Professor Scharf’s and my trip to Mauritius, I will take this opportunity to explore differences between Mauritius and the two other prosecuting venues, Kenya and the Seychelles, and to recommend that Mauritius consider beginning prosecutions in the very near future.

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Drug trafficking at sea: no longer a crime of universal jurisdiction before US Courts?

Published on November 22, 2012        Author: 

Once again, a new maritime drug smuggling case raises interesting questions of international law and its implications for national prosecutions.

Back in 2010 I blogged on Medvedyev: a European Court of Human Rights case finding that an ad hoc agreement between France and Cambodia was an insufficient legal basis for France to prosecute drug smuggler. The agreement for France to board the vessel and assume jurisdiction over the offences discovered was concluded by diplomatic note and valid at international law, but it was a defective basis of jurisdiction in European human rights law because (inter alia) it lacked a required quality of “foreseeability”. (That is, the Cambodian nationals in question could not have predicted they would become subject to French law).

In more recent developments, I am grateful to Ilias Bantekas for drawing to my attention the US Court of Appeals (11th Circuit) decision in US v Bellaizac-Hurtado (6 November 2012).

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

Published on October 24, 2012        Author: 

 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 Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

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Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Published on September 19, 2012        Author: 

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

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Committing Piracy on Dry Land: Liability for Facilitating Piracy

Published on July 26, 2012        Author: 

An important case before US Courts at present is US v Ali, where the defendant is accused of, among other offences, aiding and abetting piracy by acting as an interpreter. (See the ruling on a preliminary motion here.) The case clearly has implications for other facilitators of piracy, such as financiers and the bosses of pirate gangs.

However, it now appears the presiding judge, US District Judge Ellen Huvelle, has described the aiding and abetting piracy charge as an “outrage” given that US prosecutors can only place the defendant as present on a hijacked vessel – while it was still on the high seas – for less than 30 minutes. (See reports here and here.) The defendant did, however, allegedly spend 69 days on the vessel after its capture in his role as translator and intermediary for ransom negotiations (presumably while it was detained closer to shore).

The case may raise a number of features some would find objectionable (including the fact that US authorities lured the defendant to a “conference” on Somalia in order to arrest him), but this aiding and abetting charge should not be one of them.

At international law, piracy can be committed on dry land.

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