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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