Influencing the Tide of International Law (in a Tiny, Tiny, Minuscule Way)

2016 Cooke FionaBy Fiona Cooke

I am now one week out from finishing my internship at Avocats sans frontières Canada in Québec City. Although one week isn’t really enough time to look back with any sort of objective perspective on my internship, I do feel able to draw a preliminary conclusion about my time at the organization, and the work that I did.

On the last day of my internship, I had a réunion de retroaction with the supervisor I worked most closely with. She asked me to offer my suggestions on what I felt they could do better, or what sort of things I didn’t like as much about the internship. What I said to her at the time was that I would have liked to have done more “practical” work. I can’t quite recall what inspired this criticism; I vaguely remember a fellow intern being assigned the task of researching the functioning of legal aid in Ontario, and I was envious of that seemingly fascinating assignment. I thought about some of the questions I had been posed – does the state, because of its legitimate monopoly on violence, maintain this monopoly in the context of an armed conflict to which IHL would apply? How does the ICC interact with human rights law, as a criminal court? Is there a justiceable right to peace in international law? These questions, while absolutely fascinating, all felt very theoretical – floating on some higher plane, divorced from context and individuals. I am so grateful for having been assigned them – I now have a much broader and more solid understanding of the various areas of international law, when they apply, and how they interact with each other. However, I didn’t feel like I had witnessed any way in which these areas of law had impacted real peoples’ lives. I remember thinking: my work is interesting to me, and useful to me – maybe not so useful for individual vulnerable people in Haiti, or Mali, or any of ASFC’s other countries in which it works. However, now, with a bit of distance, I’m better able to see the larger picture.

Colombia’s government and the FARC-EP rebels signed the Peace Agreement on June  23rd[1], a momentous occasion that everyone hopes will signal a significant and genuine step towards ending the conflict that has devastated Colombians for decades. The Peace Accord includes unique provisions that foresee punishments alternative to time in prison for the perpetrators of international crimes.[2] The questions on everyone’s mind were: 1) will this fulfill Colombia’s obligation under international law to punish perpetrators of these crimes? – because if it doesn’t, the ICC could step in, and 2) will this satisfy the victims’ right to justice? Are “restrictions of liberty” combined with acts of community service enough of a punishment? Is it a punishment at all? No international tribunals have ever given any punishment other than prison time. This is an innovative test case for restorative justice after international crimes, and the debate is fascinating.

When the accord was signed, ASFC released multiple data fact sheets, explaining the context of the agreement and what it included in terms of transitional justice for victims, as well as a its official evaluation of the peace agreement. While reading these fact sheets, one line struck me – it was a line that summed up the conclusion of one of my first memos I had written for my supervisor. Behind that one short sentence was 3 weeks of intense research, thinking, and learning on my part. It made me think about just how much human effort and passion goes into research by NGOs in order to make informed and careful statements or suggestions that will have an impact on real situations. The research that I had done, alone in my office, lost in the puzzle pieces that are IHL, IHRL, ICJ, and one hundred other initialisms, ended up informing ASFC’s official position on the new Colombian peace agreement. In the end, ASFC came out in cautious support of the agreement, provided its provisions were carried out with genuine intent to bring the perpetrators of crimes to justice. ASFC is an influential organization that others will look to to inform their own opinions, trusting the research that is behind this organizations’ conclusions. And opinions are the motor of international law, it seems – forming opinions will influence what direction the law actually takes. ASFC’s opinion is one of potentially multiple cautiously optimistic takes on the Colombian Peace Agreement that may, eventually, profoundly influence international criminal justice – moving its focus away from punishment and more towards reconciliation and rebuilding societies, and allowing for more flexibility in situations of conflict.

So, I see it now as a snowball effect – the tiny amount of contribution I made by way of my memo has its place in the larger role that NGOs play in international law in influencing both public opinion and the opinions of judges world-wide. That being said, I realize that the point of doing this work is not the personal gratification of seeing its effects in the real world – I just mean to say, there is indeed value in sitting alone in an office, wading through the morass that is international law – without these drops in the bucket, the larger waves would not materialize.


[1] “Colombia & FARC Agree to Ceasefire in Historic Peace Deal, Begin Long Process of Implementation” Democracy Now (23 June 2016), online: http://www.democracynow.org/2016/6/23/colombia_farc_agree_to_ceasefire_in

[2] Helen Murphy, “Colombia’s FARC may face alternative justice, not impunity” Reuters (5 September 2013), online: http://www.reuters.com/article/us-colombia-peace-interview-idUSBRE9840VZ20130905

Understanding the Complexities of Kidnap for Ransom

2016 Arella AmandaBy Amanda Arella

Shortly before leaving for my internship, I woke up to this headline: “Canada ‘does not and will not’ pay ransom to terrorists: Trudeau.” The renewed spotlight on Canada’s ransom stance was prompted the tragic death of John Ridsdel, who was beheaded by Abu Sayyaf militants in the Philippines after being held captive for seven months.

While reading this article, I was horrified and saddened by the fate of John Ridsdel. However, it was only after arriving in Colorado, and beginning an summer-long project researching kidnap for ransom in Somalia that I came to fully understand what is truly at stake in cases of kidnap for ransom, and its legal, political and humanitarian response.

Kidnap for ransom has been an area of growing concern on land and at sea, particularly in the last decade. In Somalia, 2,919 seafarers have been taking hostage between 2000 and 2013. Currently, there are 41 hostages still being held in Somalia, including 26 crewmembers of the FV Naham 3. At the time of writing this post, the crew of the FV Naham 3 has been held in captivity for 4 years and 124 days.

Kidnap for ransom complex, multi-faceted and emotionally charged topic. Central to any discussion of this issue is the visceral knowledge that a person’s life is at stake. Kidnapping violates the fundamental human rights of individual freedom and the right of movement. It has lasting physical, emotional and psychological impacts for victims and their families.

In addition to the devastating costs of kidnap for ransom for those whom it directly affects, we are becoming increasingly aware of global consequences of this crime. According to a report by the World Bank and the United Nations Office of Drugs and Crime, ransom monies collected by Somali pirates are reinvested in criminal activities in the region, including human and drug trafficking, promoting instability in the region and undermining the rule of law. Outside of the Somali context, an investigate report by the New York Times found that “Al Qaeda and its direct affiliates have taken in at least $125 million in revenue from kidnappings since 2008”.

After spending eight weeks documenting instances of kidnap for ransom in Somalia, I am left with the understanding that there is no straightforward or definitive response to this issue. Instead, I have a deeper understanding of the experiences of those who are taken hostage, and the difficulty and uncertainty that accompanies hostage negotiations. So too do I appreciate the conditions of instability and extreme poverty which create the conditions for piracy and heighten instances of kidnap for ransom.

The work of Oceans Beyond Piracy, and the One Earth Future Foundation as a whole, demonstrates that in order to meaningfully address kidnap for ransom in the maritime sphere, our collective response to this issue must be approached from a number of different angles. Support must be provided to hostages and their families both during their time in captivity and after their release. Equally important, however, is creating economic opportunities ashore for the citizens of Somalia as an alternative livelihood to piracy.

Kidnap for ransom complex, multi-faceted and emotionally charged topic, and I have only offered a brief glimpse of this issue’s many layers. As we increase our understanding of the scope of this crime, and its underlying causes, we are better equipped to offer support to victims and create sustainable solutions.

Same, same, but different

2016 Goldfinch AnnaAnna Goldfinch

I find that whenever I go somewhere new I play the “same, same, but different” game. I think it is human nature to try to find similarities between new places and home, but we are also quick to spot differences. My first few weeks in Colorado have not been an exception to this human quirk. Everywhere I go, I find myself relating it back to home in some way, while finding strange but subtle differences. For example, all the amenities in kitchens here are obviously the same as at home, except for the fact that all sinks have garburators (which are banned in most Canadian cities). My roommate makes fun of me for how afraid I am to turn it on.

Where I’m from, there are lots of mountains just like there are here in Colorado. However, the mountains at home are little, rolling and green; the tail end of the Appalachians. Here, we are at the height of the Rockies in all their glory; towering and jagged. While I’ve done quite a bit of hiking on the east coast, nothing could have prepared me for the outdoors culture of Colorado. I spend at least one day per weekend scampering up mountainsides, cursing the altitude, and marvelling the views.

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Kitchens and mountains aren’t the only place where things are same, same, but different. Having worked at a student-run not-for-profit organization for two years, working at One Earth Future (OEF) has a comfortable familiarity about it. I am, once again, surrounded by passionate and incredibly intelligent people, working for a cause they believe in. One Earth Future has similar successes and growing pains that most not-for-profits have. In a lot of ways working here is very “same same” as my previous job.

However, the organization I previously worked for was structured much like a union; we recognized that students could not accomplish much individually, but collectively they could advocate for a better world and create change. One Earth Future is the complete opposite. The organization was born out of one family’s generosity and vision for world peace. This is the greatest difference I have noticed so far.

One Earth Future’s unique structure speaks to the reality of a large portion of international human rights work. With a lack of global governance, individual actors who care about specific problems try to make a difference in whatever way they can. The founders of One Earth Future saw maritime piracy as an issue that was receiving little attention, and focused their resources there as a result.

In my first few weeks here, I spent a lot of time thinking about this dynamic. I wondered what the state of maritime piracy would be like if One Earth Future had not chosen to focus its resources in that direction. Would piracy off the coast of Somalia have decreased in the same way as it has under the watch of OEF? I also wondered about all the other important causes that don’t get attention from international human rights organizations. I worry about the “too small” issues, and the “too political” issues. Who is caring about them?

I haven’t stopped worrying and I haven’t stopped wondering about this, but I have forged ahead with my work on piracy. I don’t expect these questions to ever go away. In fact, I expect any time I work in international human rights I will ask similar questions, just maybe about a different topic. Same, same, but different.

 

Violence at sea, without consequences

2015 Venney MarilynBy Marilyn Venney

One of the main focuses at Oceans Beyond Piracy is, of course, piracy. But piracy is itself a symptom of a much wider issue – the lack of effective governance over the high seas. This isn’t a new problem, and although there are a number of international conventions in place aimed at filling the gap, the fact is that people and vessels operating in international waters are not usually subject to a great deal of oversight. And part of the problem is that there isn’t much interest in this lawlessness or motivation to address it.

This lack of interest is something that OBP has struggled with in the past. Last year a cellphone video turned up on the internet depicting the brutal murder of four seafarers, filmed by some unknown sailor on board another ship. To watch the video, which is graphic and disturbing, see the New York Times article Murder at Sea http://www.nytimes.com/2015/07/20/world/middleeast/murder-at-sea-captured-on-video-but-killers-go-free.html. For those who’d rather not watch, the video shows a group of large vessels surrounding four men in the water, who are hanging on to the floating remains of their small vessel. One by one they are shot to death by a person or multiple people on board one of the larger ships.

When the video surfaced, OBP sent it to mainstream news outlets (in addition to the maritime news sources that OBP often deals with), positive that this would be the incident that pushed seafarer issues and the problem of lawlessness at sea to a wider audience. While the video is now a centerpiece of one segment of the New York Times series The Outlaw Ocean, it took over a year to gain the type of attention that OBP hoped it would attract.

It’s possible that the murdered seafarers were a group of pirates whose attack had just been thwarted. Or maybe they were fishermen from a coastal West African town who got too close to a large international vessel, spooking the sailors and armed guards on board. Unfortunately, pirates don’t actually fly a skull and cross-bones flag, and in practice their small boats are not always distinguishable from the fishing vessels used by fishermen from the region. Sailors on board large international vessels and the teams of armed guards hired to protect them are understandably fearful when travelling through the dangerous waters of the Gulf of Guinea. However, that fear, combined with the knowledge that they enjoy relative impunity, can result in a dangerous propensity to assume that seafarers seemingly approaching them are pirates, and to react accordingly. Although it’s impossible to know what happened before the video begins, in the minutes before their murder it was obvious that they did not pose a threat: their boat was destroyed and they were all hanging on to its remains to stay afloat.

Either way the video is proof of a serious problem: even if the murdered seafarers were pirates, killing them when they were clearly incapacitated would not have been legal. And if they weren’t – if they were innocent fishermen who got a little too close for comfort – their murder is indicative of the danger faced by fishermen operating off the coast of West Africa. There is always the possibility that they could be mistaken for pirates, and there isn’t much protecting them. In this case a video of the incident turned up years later after the cellphone was forgotten in a cab in Fiji and its contents were discovered and released. Normally, though, no one would know. So how many innocent fishermen have faced this end?

The recent NY Times series on lawlessness at sea was definitely a welcome change for organizations like OBP pushing for improved governance over the high seas. Hopefully, it will bring the kind of attention that will make it easier to push for positive change. To read the whole series, go to http://www.nytimes.com/interactive/2015/07/24/world/the-outlaw-ocean.html?action=click&contentCollection=Opinion&module=RelatedCoverage&region=Marginalia&pgtype=article.

Pirates and fraternities, Colorado and the high seas

2015 Venney MarilynBy Marilyn Venney

Telling people that I’m spending the summer in Boulder, Colorado while interning at an organization that works to combat piracy usually elicits some surprise. I’ve become used to questions like “Oh, you mean online piracy?” or “…in Colorado?”. And it has been strange in some ways. Boulder is absolutely beautiful, and has a reputation for being a city full of outdoorsy, active hippies. It’s also a place where college students drive shiny new Range Rovers and spend their summers playing beer pong on the lawns of their frats. It’s a place where it took me three weeks to find a store that sold cucumbers for less than 4 dollars apiece. Where, as of the 2011 census, 88 percent of the population were white and only 0.9 percent were black or African American. This is the backdrop for my evenings and weekends here.

My weekdays, on the other hand, are spent in an office full of people who are very passionate about and committed to various development issues. One Earth Future operates with the ultimate mission of preventing armed conflict and promoting peace through better, more effective government. Of the number of different projects within OEF, this summer I’m working with Oceans Beyond Piracy. Despite my background being in international development, before this summer my familiarity with piracy issues was basic at best. That changed quickly though, as I was thrown into the frenzy leading up to the release of OBP’s annual report assessing the economic and human costs of piracy. Everyone in the office was coming in early and leaving late, doing everything they could to make sure the messages were clear and the numbers were adding up. They have good reason to be so diligent: OBP is only a few years old, but in that short time it has become a respected authority on piracy issues. Its State of Piracy reports gather a great deal of attention each year and have solidified the role of OBP as a crucial actor in the maritime community’s efforts to combat piracy.

I work in the West Africa section of OBP, which means that I spend a lot of time sifting through legislation from West African countries, translating them, and pulling out provisions that are relevant to our work. The nature of piracy in West Africa is fundamentally different from that off the coast of Somalia, and therefore requires different solutions. Ships travelling off the coast of Somalia are usually only passing through, and have little reason to stop in Somali ports. As they never enter Somalia’s territorial waters, they are never subject to Somali law. Ships travelling off the coast of West and Central Africa, on the other hand, make frequent stops in ports and must regularly enter territorial waters. As a result, the responses to piracy that have been so effective in Somalia — the use of armed guards has been a key deterrent to pirate activity off the Horn of Africa — are unworkable in West Africa where ships cannot legally bring teams of armed security guards into a state’s territorial waters. Similarly, the prosecution of Somali pirates was delegated to other states in the region, since, as a failed state, Somalia had little capacity or desire to prosecute. West African countries, however, have a more important role in arresting and prosecuting pirates. The problem is that, as far as OBP can tell, there have been no prosecution of pirates in West Africa.

These challenges are the bases for the two projects that I’ve been working on lately. First, I’ve been helping to locate and analyze any legislation relating to a state’s ability to prosecute pirates, either for the crime of piracy or for some other crime, like armed robbery, assault or murder. Second, I’ve been researching private security legislation as part of an effort to help shipping companies and private security companies understand what the actual policies of each West African state are with regard to whether ships can use armed guards.

So that’s how I spend my weekdays: immersed in the legislation of West African countries and discussing the enormous impacts of piracy on seafarers in West Africa. And then I go home, where I spend my evenings and weekends in beautiful Boulder, hiking, camping, and watching a real-life frat movie unfold across the street from my house. It’s weird.

Piracy, Universal Jurisdiction, and Domestic Law in the United States

Andrew Higdon, One Earth Future Foundation. Broomfield, Colorado, USA.

2013 Andrew Hidgon 100x150On November 7, 2008 the Bahamian flagged cargo ship CEC Future was attacked by Somali pirates on the high seas in the Gulf of Aden. The attackers, armed with AK-47s and rocket propelled grenades, fired shots and boarded the ship. The ship and her crew (eleven Russians, one Georgian and one Estonian) were released a month later when the Dutch ship owners paid a $1.7 million USD ransom. In order to negotiate with the outside world, the pirates employed Ali Muhammad Ali who acted as a facilitator and interpreter onboard the ship.  Ali made $16 500 USD from his cut of the ransom, and negotiated an additional $75 000 USD from the ship owners for coordinating the release – all without leaving Somali territorial waters for any significant length of time.

In addition to being a pirate negotiator, Ali also served as the Director General of the Ministry of Education of Somaliland – a fact that neatly conveys at the scale of the problems facing Somalia. US prosecutors used his position to lure him into the US by inviting him to a fake education conference in Raleigh, North Carolina. Upon arrival he was immediately arrested and charged under US piracy and hostage taking laws. How could the US claim jurisdiction over a non-national who committed a crime in another country against a ship sailed and owned by foreign nationals?

Under international law, states must have jurisdiction over the person and the offence in order to affect a legitimate prosecution. In the case of piracy, nations rely on customary international law and the UN Convention on the law of the Sea (UNCLOS 1982) to ground their jurisdiction. Unique among crimes, piracy has long been treated as an offense that any nation can prosecute. Unlike other theories of jurisdiction (such as “the territoriality principle” which gives states jurisdiction over events that take place within their territory,  or “the nationality principle” with gives states jurisdiction over actions committed by a their nationals) piracy is a crime that requires no nexus for a state to properly assert jurisdiction. Basically, any state that finds a pirate on the high seas can prosecute him. Traditionally, this unique jurisdictional aspect of piracy has been viewed as a consequence of the fact that pirates committed their crimes on the high seas, outside of anyone’s jurisdiction, and against the international community at large.

But Ali hadn’t operated on the high seas; he had helped facilitate piracy from Somali territory. The prosecutors charged Ali under 18 U.S.C. § 1651 – the US law that prohibits piracy – which states that individuals commit an offence where they commit piracy as defined by international law. This meant that the court had to examine the provisions of UNCLOS. Despite a long history of academics and law makers articulating the belief that piracy was something that could only occur on the high seas, the court took the opposite view. Brown J. ruled that since the sub article criminalizing the facilitation of piracy did not explicitly mention a high seas requirement (while other articles did) this indicated that no high seas requirement existed. While the position is defensible, it does suggest a challenge to the accepted order of jurisdiction.

It is highly unusual for a state to claim jurisdiction over the actions of a foreign national who committed a crime within the territory of his own nation, and where there is no other nexus with the prosecuting state. This is predicated on the understanding in international law that states will not interfere with the internal affairs of others. With this ruling, the US appears to be signalling its willingness to do so in certain situations. Perhaps the court decided as it did because of the fact that in Somalia there is little chance that men like Ali will ever see a courtroom. It seems unlikely that they would have decided the same way in a case that concerned a more developed nation. In any event, it illustrates the seriousness with which US prosecutors regard international crime and their comfort with dealing with it domestically. It is something that I think we should watch carefully.

Oceans Beyond Piracy and the Somali Situation

2013 Andrew Hidgon 100x150Andrew Higdon, Oceans Beyond Piracy, Colorado USA.

Far from an 18th or 19th Century problem, maritime piracy continues to exact a humanitarian toll on seafarers and an economic toll on the global economy. While dangers exist in the vicinity of the Malacca Strait and the Gulf of Guinea, the waters near Somalia form the seas most well known for their pirates. Somali piracy has achieved greater notoriety than piracy elsewhere largely as a result of a massive spike in activity that began in 2008 – 2009. Several large vessels were taken hostage by pirates, and the world media began to pay attention.

Somalia is unfortunately an ideal environment for pirates. As a failed state, there is little law enforcement capacity or interest in establishing rule of law. Further, the crushing poverty in Somalia drives some to crime. Finally, Somalia is located by the Gulf of Aden, through which the vast majority of European trade with Asia passes. The confluence of factors makes a career as a pirate all too tempting for some Somali men. The problem began to escalate quickly. In 2011 more than 3,500 seafarers suffered attacks by pirates, and more than 500 were taken hostage.

Since it is difficult to acquire sophisticated equipment in Somalia, pirates use small boats with outboard motors to attack. Pirates attempt to manoeuver alongside “deep-sea” ships unnoticed and then scale ropes or ladders to get on deck. Once aboard, they seize the bridge of the ship, take the crew hostage, and re-route the ship to an anchorage near the shores of Somalia. Since these pirate anchorages lack the facilities to unload large ships, the pirates do not steal cargo. Instead, they ransom the ship and the seafarers back to the shipping company and owners. This attack-and-ransom profile is different from pirate attacks elsewhere in the world and puts additional stress on seafarers, who are often held for long periods of time while they wait to be ransomed. Some of these mariners do not survive, and some are very clearly tortured during their captivity. Since the crews of merchant ships are disproportionately chosen from the poorer nations of the world and are paid only modestly, it seems an additional affront that they must endure the greatest share of the burden.

Fortunately the international community has responded. Many countries sent naval forces to protect World Food Program vessels and merchant traffic. The Royal Canadian Navy continues to participate in Operation Ocean Shield, the NATO contribution. International organizations set up “sharing centres” where merchant ships could share their planned route and coordinate with available military assets.  Perhaps most significantly, sharing centres began to promulgate Best Management Practices (BMPs) to merchant ships to help teach mariners ways to decrease the likelihood of attack. Some of these practices are as simple as speeding up through High Risk Areas (HRAs). Pirates in small boats have a tremendously difficult time boarding fast moving targets. However, the shipping industry runs on razor thin profit margins, and increasing the speed of ships is inefficient and very costly. In 2012, shipping companies paid more than $1.5 billion in extra fuel costs associated with the faster speeds recommended in BMPs.

Thankfully, these measures have made a difference. It has been more than a year since a ship was reported to be successfully hijacked by pirates off the coast of Somalia. However, shipping companies continue to spend billions of dollars re-routing ships away from the HRA and buying additional fuel to achieve faster speeds. The international community also expends billions of dollars keeping a naval presence in the area. Another major expense is the placement of Private Military Security Company (PMSC) personnel aboard merchant ships. These armed guards used to be hired from among retired Special Forces personnel from Western militaries, but increasingly are being chosen from less reputable armed forces at more affordable rates. While PMSC personnel generate a very effective deterrent (no ship has been successfully hijacked off the coast of Somalia with PMSC personnel embarked) they potentially add a new facet to the problem. On the high seas, where criminal jurisdiction is hard to enforce, there is little to restrain a “shoot first, ask questions later” fire policy. Unfortunately, there are already cases where PMSC personnel appear to have misidentified fishermen with fatal consequences. These cases will prove to be exceptionally difficult to prosecute.

Oceans Beyond Piracy (OBP), where I am doing my internship, is part of a larger project called the One Earth Future Foundation (OEF). OBP pursues long-term solutions to the many issues surrounding piracy worldwide. In Somalia, this means bringing shareholders from industry, government and third parties together with sound research and analysis. So far I have been asked to conduct research on points of international law, especially questions about criminal jurisdiction at sea. The people who work here are knowledgeable and dedicated, and it’s been very exciting to work with them. I’m looking forward to the next few months immensely!

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