I have blogged several times in the past about legal issues related to the capture and prosecution of Somali pirates. Today I will focus on the issue of prosecuting the crime of conspiracy to commit piracy- an issue that I have been asked to address at the upcoming United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.
Most detained and prosecuted pirates are foot soldiers: young men who are recruited in Somalia to engage in piracy attacks, in exchange for a relatively small financial gain (if the attack is successful). While prosecuting piracy executioners may eventually lead to a small decrease in the number of pirate attacks, dismantling the Somali piracy business model requires judicially pursuing the kingpins – those who organize and finance the attacks. The problem with prosecuting piracy financiers and organizers lies in the narrow definition of piracy. Under Article 101(a) of the United Nations Convention on the Law of the Sea (UNCLOS), piracy is defined as a violent act on the high seas committed for private aims and involving two vessels (the aggressor and the victim vessels). A person who finances or otherwise organizes a future piratical act does not, him or herself, commit a violent act, and does not act on the high seas; moreover, the act of financing or otherwise organizing a piratical act does not entail the involvement of two vessels. Article 101(c) of UNCLOS outlaws the incitement and facilitation of piratical acts, but many scholars have argued that even such incitement and facilitation must be committed on the high seas, or must involve incitement or facilitation acts committed on the high seas before, or concurrent with, the piratical attack itself. Many piracy financiers and organizes never set foot on the high seas and accomplish all of their “work” out of comfortable offices located in global financial centers. The SUA Convention – another treaty outlawing acts of maritime violence that has been widely cited and used in the global fight against piracy – is of little help in this area, as this Convention does not criminalize acts falling short of actual maritime violence (SUA does outlaw aiding and abetting). And many national laws define and criminalize piracy by either incorporating UNCLOS and its narrow view of piracy, or by referencing the “law of nations,” which is arguably identical, or very similar to UNCLOS, because the latter has been accepted as customary law.
Although piracy financiers and organizers may not be easily charged with piracy under the prevailing view of this crime’s narrow definition, such financiers and organizers could be charged with the crime of conspiracy to commit piracy. Conspiracy consists of an agreement between two or more individuals to carry out some illicit act, with intent or knowledge about the circumstances of the underlying offence. According to the famous Pinkerton rule, “every conspirator is directly liable for all crimes committed by the rest of the conspirators in furtherance of the common plan, being irrelevant if he knew of the crimes or aided in their commission.” Thus, if piracy financiers and organizers could be charged with conspiracy to commit piracy, they would be liable for the acts carried out by their co-conspirators (the piracy executioners), regardless of whether the financiers and organizers actually knew what the executioners were about to accomplish, as long as the illicit acts of piracy were reasonably foreseeable to the financiers and organizers. According to my reserach so far, the following states have criminalized conspiracy to commit piracy in their national penal codes: the United States (pirates have already been successfully convicted of conspiracy to commit piracy in U.S. v. Shibin, U.S. v. Ibrahim, and U.S. v. Muse); France, Argentina, Belgium, Cyprus, Israel, Norway, Poland, the Seychelles, Singapore, and New Zealand. In addition, Denmark and Turkey conceive of conspiracy as a general mode of liability which can be extended to the crime of piracy. Kenya and South Korea criminalize conspiracy to commit a ship hijacking – a crime with which piracy financiers and organizers could be charged just as easily. Finally, many countries, such as Mauritius, Tanzania, Greece, Italy, and the Philippines, inter alia, criminalize the act of facilitation of piracy, leaving open the possibility that piracy financiers and organizers could be charged with this offense, if the act of facilitation is not interpreted as having to occur on the high seas.
In sum, my so far incomplete and imperfect research indicates that many national legislations have the appropriate legal framework for the prosecution of conspiracy to commit piracy. It is time that states begin to contribute to the global fight against piracy by actually charging the ringleaders and kingpins with the crime of conspiracy to commit piracy.