Home Archive for category "Piracy" (Page 2)

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.

Read the rest of this entry…

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Shooting fishermen mistaken for pirates: jurisdiction, immunity and State responsibility

Published on March 2, 2012        Author: 

Francesco Messineo referred below to the incident in which Italian marines, embarked aboard an oil tanker to protect it, appear to have killed two Indian fishermen mistaking them for pirates.

There has been a lively debate about how best to manage armed security for vessels transiting the high-risk piracy area off Somalia. The two options usually advocated are: embarking military forces to act as a Vessel Protection Detachment (VPD); and private armed security guards (PASGs). The usual issues for discussion are questions of jurisdiction, immunity and state responsibility.

What follows is a preliminary sketch of the issues as I see them.

Vessel Protection Detachments

In any such fatal shooting episode the first question is which State has jurisdiction: Italy or India? The answer is, of course, both States do.

As Francesco pointed out, if this episode occurred on the high seas (as it appears to have done), it is governed by the Lotus Case. In Lotus the PCIJ found, unremarkably and by analogy with crimes that cross land borders, that an offence commenced on a vessel of flag State A which has fatal consequences aboard the vessel of flag State B can be subject to the criminal law of both A and B. A treaty law exception was later created for the masters of vessels in respect of crimes resulting from collision and incidents of navigation. In such cases a master can only be prosecuted by his state of nationality or license-issuing authority (UNCLOS, Art. 97). Otherwise the general principle stands. In this sense the principle of the “exclusive jurisdiction” on the flag State can mislead those unfamiliar with the law of the sea. It is not an absolute prohibition on concurrent jurisdiction.

As Indian courts have jurisdiction, the next question is immunity. The easy thing to assume about VPDs is that they will enjoy State immunity for their official actions. While this is true, it falls for other States’ courts to respect it in practice – and there will always be pressure to look for exceptions where the death of a national is involved.

I have surveyed the relevant State practice elsewhere. I will confine myself to observing that that comparable cases are usually resolved in favour of State immunity, but often not swiftly. The issue is complicated by the fact that the modern law is dominated by Status of Forces Agreements – treaties concluded in advance which (broadly) settle the questions of immunity for forces stationed abroad from local criminal jurisdiction. This is a situation where no such treaty applies so the applicable law is customary international law, and the relevant cases tend to be old. Nonetheless, my reading of them suggests State immunity is not lost in fatal injury cases even where a defendant’s conduct was: careless, reckless, involved excessive force, or was contrary to instructions (in the narrow sense of carrying out an authorised act in an unauthorised manner). Immunity is unlikely to be upheld where a State agent has abused their authority out of malice or for personal gain (though in such cases State responsibility will still apply e.g. Mallen). Otherwise, especially in cases of genuine mistake, immunity should generally be upheld.

Obviously, the State remains responsible for the official acts of its agents irrespective of the determination regarding immunity. The question therefore arises as to whether Italy is obliged to compensate the victims or their families. Read the rest of this entry…

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Briefly Noted: New Report on Somali Piracy

Published on January 12, 2012        Author: 

The House of Commons Foreign Affairs Committee released its report on Somali piracy on 5 January 2012.* I acted as a specialist advisor to the committee, so I will not offer a full analysis but simply highlight some points of interest:

  • the report is critical of the failure to contain piracy in the Indian Ocean; however, it acknowledges that absent further naval resources the only effective way to protect vessels is to allow them to protect themselves – it thus supports the use of armed guards in some cases;
  • indeed, the committee notes that UK government policy on armed guards appeared to shift during its inquiry, with the release last December of a Department of Transport policy allowing the use of armed security on UK flag vessels for the first time;
  • the committee calls on the government to issue clear guidance on when armed guards may use potentially lethal force, noting that Crown Prosecution Service guidance on self-defence was not drafted with armed security guards in mind (paras 35-37);
  • the report includes as appendices transcripts of evidence; of particular interest is the evidence of Major General Buster Howes (head of the EU NAVFOR counter-piracy mission), Sally Healey (Somalia expert) and Paul and Rachel Chandler (piracy hostages – though some of their evidence will remain redacted until such time as no British hostages are being held);
  • the committee rejects calls for an international piracy tribunal or an extra-territorial Somali court sitting in Arusha and supports “recent proposals for specialised anti-piracy courts established within regional states under ordinary national law” as the most efficient and practical option (para 92);
  • the explanation of how decisions to prosecute and transfers for prosecution operate in practice is enlightening (see paras 102-3 in particular);
  • the report urges the government to consider prosecuting those piracy suspects intercepted by the Royal Navy in the UK where no other State will accept the case (para 107) but notes UK law may need clarification/updating (para 84 and n. 162);
  • also worth attention are the sections on “solutions on land” (noting that present “[i]nternational capacity to rebuild a Somali state is extremely limited” but supporting “community engagement” as the way forward) and on the UK government response to the Chandler case (recommending a review of procedures and lessons learned); and
  • finally, there are a series of interesting tables and graphs in the report, including those at pages 30 (total attacks against shipping compared to successful hijackings), 39 (numbers of ships and hostages held by pirates over time), 53 (pirate prosecutions internationally), 56 (total ransoms paid).

One statistic evident in, but not highlighted by, the report is the success rate of pirate attacks which halved from 2010 to 2011 (see page 30). This piece of good news is probably due to a mix of factors including naval patrolling, improvements in the passive security measures taken by vessels following Best Management Practices and increasing use of armed security. None of these measures, of course, should be seen as a panacea.

*I note the House of Lords also inquired into Somali piracy, reporting on 14 April 2010.

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Kenya Invades Somalia Invoking the Right of Self-Defence

Published on October 18, 2011        Author: 

Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.

At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.

At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.

Some Problems with the Kenyan Invocation of the Right to Self-Defence

According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.

Read the rest of this entry…

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UN Secretary General Sets Out Options for dealing with Piracy off Somalia

Published on September 3, 2010        Author: 

The United Nations Secretary General has recently submitted a report to the Security Council in which he sets out 7 options for dealing with piracy off the coast of Somalia. The incidence of piracy off the coast of Somalia continues to be very high.

“7. … The number of attacks off the coast of Somalia has steadily increased since 1991, and over the past two years has increased from 111 vessels attacked in 2008 to 217 vessels attacked in 2009. . .  There were 30 attacks during the first quarter of 2010. According to the United Nations Office on Drugs and Crime, the pirates operate from around 70 camps on beaches on the Somali coast, which is approximately 1,800 miles long. Their methods have become increasingly sophisticated, indicating greater planning, financing and organization. . . .

8. While the number of attacks remains high, increased naval patrols off the Horn of Africa and in the Gulf of Aden have effectively reduced the success rate of these attacks. In 2007, 63 per cent of attacks were successful; in 2008, 34 per cent were successful; in 2009, 21 per cent were successful; and the figure for 2010 is likely to be below 20 per cent.2 The decrease in success is attributable to the additional defensive measures put in place by merchant ships, their more cautious navigational routes, and effective naval operations. Nevertheless, as at 15 May 2010, some 450 mariners were being held hostage on vessels captured by pirates off the coast of Somalia. The involvement of naval vessels from more than 30 States represents one of the largest peacetime naval operations ever.”

In April of this year, the Security Council in resolution 1918 requested the Secretary-General to present a report exploring the options for prosecuting the persons responsible for piracy and armed robbery at sea off the coast of Somalia. In his report , the Secretary General has set out 7 options:

Option 1: The enhancement of United Nations assistance to build capacity of regional States to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia

Option 2: The establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation

Option 3: The establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation

Option 4: The establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation

Option 5: The establishment of a regional tribunal on the basis of a multilateral agreement among regional States, with United Nations participation

Option 6: The establishment of an international tribunal on the basis of an agreement between a State in the region and the United Nations

Option 7: The establishment of an international tribunal by Security Council resolution under Chapter VII of the Charter of the United Nations

The Secretary General has dismissed as a viable option the extension of the jurisdiction of existing international courts to include prosecution of piracy. So proposals to allow the International Tribunal for the Law of the Sea, the International Criminal Court or the African Court of Human Rights to prosecute the crime of piracy have not been accepted by the Secretary General. However, it may well be that the option of allowing the African Court of Human Rights to prosecute pirates returns to the fore when the African Union discusses the extension of the jurisdiction of that Court to include prosecution of international crimes. That discussion, which is gathering steam, is primarily about attempts to create a regional African Court to prosecute ICC crimes but I would not be surprised to see piracy included in the jurisdiction of that Court, if the attempt succeeds.

The Secretary General’s Option 1 is already being pursued with the opening of a special anti-piracy court in Kenya. If there is sufficient assistance to States and  domestic courts to undertake these prosecutions it is not quite clear to me why an international (or even a regional) tribunal is needed, especially given the cost of establishing such tribunals. In the Security Council debate about the report, it appears that the UK and France were also not keen on establishing a new international tribunal.

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Prosecuting pirates in national courts: US v Said and piracy under US law

Published on August 23, 2010        Author: 

On August 17, a US District Court handed down a fascinating piece of statutory interpretation that apparently means that unless a Somali pirate succeeds in stealing something, he cannot be charged with piracy under US law.

There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.

This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.

The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium [1934] AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:

“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.” Read the rest of this entry…

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Anti-Piracy Court Opens in Kenya

Published on June 28, 2010        Author: 

At the end of last week, Kenya opened a special court to try suspected pirates operating from Somalia in the Gulf of Aden (see BBC Report here and here) The Court, which is funded by a number of international organizations and States including the UN, the EU, Australia and Canada, is a significant step in the fight against piracy. All States have universal jurisdiction under customary international law and the UN Convention on the Law of the Sea to prosecute captured pirates but as Douglas Guilfoyle explained in a post here on EJIL:Talk! last year there are a number of practical and legal difficulties with capturing, detaining and prosecuting suspected pirates. He stated that:

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them.

Attempts have been made to solve this problem since the incidence of piracy in the Gulf of Aden has continued to rise. The Kenyan court is a national court exercising universal jurisdiction on behalf of the international community. It appears that this court will constitute the focal point for the prosecution of piracy since Kenya already has more than 100 suspected pirates in detention. Read the rest of this entry…

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Piracy off Somalia: a sketch of the legal framework

Published on April 20, 2009        Author: 

Dr Douglas Guilfoyle is a Lecturer in Law at University College London.  His research has focussed on the law of the sea and international and transanational criminal law. He is the author of ‘Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts’ (2008) 57 International and Comparative Law Quarterly 690-699. His book Shipping Interdiction and the Law of the Sea will be published by Cambridge University Press later this year.  

We’re all familiar now with the pirate attacks in the Gulf of Aden and off Somalia’s east coast, especially following the hijacking of the Sirius Star 500 nm off the coast of Kenya in November 2008 and the more recent uses of lethal force by French and US navies to free hostages seized by pirates. Although, the international law of piracy is quite straightforward, its implementation – especially in a situation as complex as the Gulf of Aden – is rather more difficult. Some of the problems are legal and some practical. The law applicable to piracy off Somalia is presently a mix of customary law, UN Security Council Resolutions and treaty law. If pirates are captured, questions of national law and international human rights obligations also arise.

In my view, there is no short-term, military “fix” for piracy. It remains to be seen whether recent uses of lethal force against pirates will deter them, or escalate violence against ships and hostages. In the short term, the best we can hope for is better regional co-operation and judicial capacity-building in Kenya – the destination for many captured pirates. The later is presently being undertaken by the UN Office on Drugs and Crime with a substantial grant from the German government.

The customary law

The core of the customary law of piracy, as codified in Articles 101-107 and 110 of the UN Law of the Sea Convention (UNCLOS) is relatively simple. Piracy consists of: (i) any act of violence; (ii) committed for private ends; (iii) on the high seas or in a place beyond the relevant jurisdiction of any State; and (iv) which is committed by one vessel against another. Any State may send a warship to board a pirate vessel, arrest those on board and subject them to the jurisdiction of its courts. Warships may also use reasonable force to that end.

It is commonly held that piracy does not cover politically motivated acts. This, I believe, is a myth (for reasons I have explained elsewhere). Any act of violence lacking State sanction is, in my view, an act “for private ends”. The limitations within the definition of piracy are fairly obvious. It does not cover internal hijacking or events within territorial waters (the latter is normally termed “armed robbery against ships” and regarded as a matter for coastal-State law enforcement), nor does the law of piracy allow pirates to be pursued from the high seas into territorial waters.

 One of the problems with the current attempt to combat piracy is that though, as a matter of international law, all States have jurisdiction to try pirates, few States have adequate national laws for the prosecution of pirates who have not committed offences against either their nationals or flag vessels. This has lead to some startling results, such as the German navy releasing some captured pirates on the basis that they had no authority to detain them. While UNCLOS requires that States must co-operate to suppress piracy (Art. 100) it only provides that a capturing warship may send pirates for trial before its courts (Art. 105). The inference is that States are under no duty to have adequate national offences for trying pirates and may co-operate in the suppression of piracy by other means (such as “deter and disrupt” patrols). If States are under a positive obligation to have such laws, the majority have been continually in breach since before the 1920s League of Nations codification project. There is also no clear duty upon port States to receive pirates captured by a third State for trial.

 The UN Security Council Resolutions

The relevant resolutions on Somali piracy are 1816, 1838, 1846 and 1851, all containing the talismanic Chapter VII authority to use “all necessary means” to counter piracy. In broad-brush terms, these Resolutions encourage States to develop a cooperative framework to counter piracy in the region as well as granting specific authority to “cooperating States” to enter Somalia’s territorial sea to repress piracy in a manner consistent with the international law applicable on the high seas. 1851 authorises “cooperating States” to go further and engage in counter-piracy action on Somali soil. Read the rest of this entry…

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