Oil Tanker Pirated Off Ghana Coast

On June 7th, reports surfaced that a Liberian tanker had gone missing off the coast of Ghana.  The captain had apparently made a distress call reporting that the vessel was being attacked by pirates.  As of today, the ship remains missing; unfortunately, is it likely that it has been pirated and we can only speculate as to the kinds of demands that pirates will make regarding the ship and its crewmembers.

Although piracy has been on the decline off the coast of Somalia, in 2013 the number of piracy attacks rose by one-third off the coast of West Africa, thereby driving up insurance rates and threatening the safety of maritime routes in this region.  The root cause of West African piracy seems to be the uprising in the Nigerian oil-rich Niger Delta, where criminal networks and gangs have blossomed.  West African pirates typically hijack larger ships carrying precious cargo, such as oil.  Attacks have taken place in Nigeria, but also off the coasts of Ghana and Cote d’Ivoire, undermining the development of West Africa as an oil and gas hub by destabilizing deliveries.  West African pirates seem particularly daring.  In an earlier attack, in January 2014, they attacked a vessel off the coast of Angola and sailed it all the way up to Nigeria.

As I have reported earlier on this blog, the development of West African piracy is a serious concern, as it threatens to destabilize the region and thwart economic development.  Unfortunately, it is questionable whether lessons learning from the global combat against Somali piracy will be of any value, as the two piracy models differ on many levels.  The rise of West African piracy underscores the need for the international community to continue its anti-piracy efforts, despite a decline in Somali piracy attacks.

Cross-posted on Communis Hostis Omnium.

Dismissal of Charges in U.S. v. Ali

United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008.  The prosecutorial decision not to pursue the Ali case may come as an unpleasant surprise to come, or as confirmation to others that this controversial case should never have been initiated to begin with.

Much has been written in the academic blogosphere about this case (see here and here and here).  To sum up, Ali was a former Somaliland education minister, who had spent much of his adult life in the United States.  After a Danish ship, the M/V CEC Future, was captured by Somali pirates in late 2008, Ali boarded the ship and translated the pirates’ demands to the ship owners.  The crux of the Ali case (at least factually) centers around his role in this piracy incident: was Ali merely a translator, contributing toward the hostages’ eventual release by enabling negotiation with the kidnappers, or was he a pirate himself, helping his fellow criminals to enrich themselves further through another successful ransom request? It is undisputed that Ali boarded the kidnapped vessel after the violent piracy incident took place, and it is undisputed that Ali boarded the vessel while the vessel was docked in Somali territorial waters.  Thus, Ali’s alleged act of facilitating piracy would have been committed in the Somali territorial waters, and not on the high seas. Despite such unusual “piracy” conduct by Ali, the United States government decided to build a case against him and to essentially ruse him onto American soil.  Toward this end, Ali was invited to an education conference in North Carolina, and promptly arrested on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.  Jon Bellish, in a prior post, has summarized the procedural posture of the Ali case in American courts as follows:

After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.

Following the DC Circuit court opinion, Ali was tried in the district court on charges that survived the appellate challenge, including hostage taking, we well as piracy facilitation, despite the fact, as mentioned above, that the act of facilitation did not take place on the high seas.  Perhaps because of such unusual factual circumstances surrounding Ali’s alleged piracy conduct, his strange arrival to the United States, as well as because of the difficult legal argument necessary in order to convict Ali, the jury found him not guilty of the charge of piracy, but deadlocked on the less serious charge of hostage-taking.  Prosecutors initially sought a retrial on the hostage-taking charges, but just announced a few weeks ago that they would not proceed with the retrial, because of constitutional concerns that Ali was being subjected to double-jeopardy (because the re-filed charges relied on the same basic facts).

All of this leads me to my initial point – that perhaps Ali should never have been prosecuted in the United States to begin with.  The case was legally challenging from the outset.  Ali was a universal jurisdiction case – a prosecution of an alleged piracy facilitator who had no ties to the United States, and who could only be reached through universal jurisdiction, which has historically been available for the crime of piracy.  But in order to prove that Ali had committed piracy (so that he could be prosecuted under universal jurisdiction), American prosecutors had to show that Ali’s facilitative act under Article 101(c) of UNCLOS need not have occurred on the high seas, as long as the underlying act of piracy (committed against the Danish vessel) had itself occurred on the high seas.  In other words, Ali could be convicted of facilitating piracy on dry land or in Somali territorial waters under the concept of universal jurisdiction.  Accepting this argument is difficult to say the least, and commentators had suggested that a high seas requirement for piracy facilitation should always be required.  Factually, the case was difficult as well.  While it was undisputed that Ali had helped negotiated the ransom demand, it was unclear as to what Ali’s role in the piracy endeavor (if any) had been.  Under the Ali precedent, would insurance company mediators, negotiating between pirates and the shipping company, also be subject to universal jurisdiction for facilitating piracy? What about pilots who fly planes which drop the ransom money? And what about the ruse orchestrated by United States’ prosecutors to entice Ali into coming to America? The district court judge herself had been outraged by the prosecutorial conduct, and while this would not be ground for dismissal under American law, most of us agree that this kind of governmental and prosecutorial conduct portrays the United States in a negative diplomatic and political light.  My argument, for the purposes of this post, is not to claim that the Ali appellate court was correct or incorrect, or to try to shed light on what Ali had actually done in this particular piracy incident; instead, let me point out that legally and factually difficult cases, like Ali, should not be the subject of expensive prosecutions thousands of miles away from Somali shores.  Many of us will agree that combatting piracy is a global challenge which involves, among other strategies, creating multiple prosecutorial venues where suspected pirates are routinely charged and convicted (if found guilty).  But the international community actors involved in fighting piracy have limited resources, limited time, and limited attention to this global problem.  Instead of pursuing piracy negotiators like Ali, whose guilt may be doubtful and whose prosecution could only succeed through a stretch of the universal jurisdiction concept, why don’t we focus on those who actually engage in piracy attacks, or, more importantly, on those who plan and finance piracy attacks? Finally, now that Ali’s prosecution has come to a halt, we have to ask ourselves what will happen to this defendant – now that he is on American soil, will he apply for political asylum in the United States or attempt to stay here on other grounds (something that our prosecutors clearly did not have in mind when they lured Ali to America?) The risk of unsuccessfully prosecuting Ali was never worth the potential benefit.

Cross-posted on http://piracy-law.com/2014/02/15/dismissal-of-charges-in-u-s-v-ali/

Follow-Up on Greenpeace: Can Oil Rigs Be Ships?

I blogged yesterday about the recent Russian seizure of a Greenpeace vessel, which had been planning to stage a protest against a Russian oil rig in the Arctic.  According to Russian authorities, Greenpeace activists may have been committing an act of piracy.  As I wrote yesterday, whether any actions against an oil rig constitute piracy turns on whether the oil rig is a ship (because Article 101 of the United Nations Convention on the Law of the Sea requires the presence of two ships, an aggressor and a victim vessel).  My initial assessment was that in the Russian case, the oil rig was not a ship and Greenpeace activists could not have been committing piracy under international law.  I was then kindly reminded by Diane Marie Amann that oil rigs could in fact be ships.  After doing a bit of research on this, here is what I found out.  Numerous mobile oil rigs exist, such as jack-up rigs and other floating production systems,  These systems are essentially mobile platforms, which can be moved either vertically or horizontally across the ocean.  In addition, drillships are maritime vessels which have been fitted with a drilling apparatus.  Drillships are vessels and had another vessel attacked a drillship, such an act could constitute piracy provided that other requirements of Article 101 were satisfied (that the act took place on the high seas and for private ends).  It is questionable whether other types of mobile oil rigs could be considered ships.  UNCLOS does not define the term “ship” or “vessel” and I am not aware of any case law on this subject.  Comments on this would be much appreciated!

Russia Accuses Greenpeace of Piracy

Russia has accused Greenpeace activists of piracy!  Greepeace activists attempted to stage a protest at a Russian oil rig in the Arctic; they were foiled in their attempt by Russian border troops, who ended up seizing the activist group’s ship and its crew of 30 sailors and activists.  Russian authorities opened a criminal investigation into the matter, claiming that piracy may have been committed by Greenpeace.  No formal charges against Greenpeace activists have been filed yet but under Russian law, the charge of piracy carries a sentence of between five and fifteen years.  According to Maria Favorskaya, Greenpeace spokesperson, the charge of piracy is “absurd.”  Favorskaya seemed dismayed: “How can peaceful activists who simply tried to put up a poster on the side of an oil drilling platform be accused of such a serious felony?”  Finally, Favorskaya claimed that Russians had illegally seized and towed the Greenpeace vessel, because it was allegedly sailing in international waters.  Russian authorities claim, on the other hand, that the vessel had been sailing within the Russian exclusive economic zone (the EEZ extends 200 miles off the Russian coast) when it was boarded and seized. 

Could this Greenpeace protest – seemingly peaceful – constitute an act of piracy under international law? No, because the activists did not act against another vessel.  The customary law definition of piracy found in Article 101 of the United Nations Convention on the Law of the Sea (UNCLOS) requires the presence of two vessels: the aggressor and the victim vessels.  Here, Greenpeace activists attempted to stage a protest on an oil platform.  Had Greenpeace activists acted against a Russian ship, arguably their acts could have constituted piracy, provided that other criteria of Article 101 had been satisfied. 

Let’s assume that Greenpeace activists had actually staged a protest against a Russian ship.  Could their acts then constitute piracy under international law? The first factor to examine here is where the act of protest staged by Greenpeace took place.  Article 101 requires that the act of piracy be committed on the high seas or international waters.  Greenpeace claimed in this incident that its vessel acted in such international waters, whereas Russian authorities maintained that the vessel had been sailing within the Russian EEZ.  UNCLOS defines the high seas as any body of water beyond the 12-nautical-mile territorial sea of the coastal states; thus, waters that constitute the Russian EEZ actually qualify as the “high seas” for the purposes of piracy law.  Thus, Greenpeace acts committed within the Russian EEZ against a Russian ship could qualify as piracy, as long as they were committed outside the Russian 12-mile territorial sea.  The second issue to ponder here is whether activists such as those associated with Greenpeace act for “private ends.”  Article 101 of UNCLOS requires that piratical acts be committed for purely private ends, because UNCLOS conceives of piracy as robbery on the high seas.  One could argue that activists such as Greenpeace, acting for non-monetary or political ends, cannot be viewed as satisfying the private ends requirement.  However, as I have blogged before, the 9th Circuit recently found in Cetacean v. Sea Shepherds that a marine conservationist organization, the Sea Shepherds, could be acting for private ends for the purposes of international law on piracy, as long they were not acting on behalf of a government.  The 9th Circuit thus conceived of the private ends requirement as that which distinguishes between entities operating on behalf of government and thus for public ends, and those not operating on behalf of governments, and thus for private ends.  Scholars disagreed on the 9th Circuit finding, with Eugene Kontorovich and Jon Bellish agreeing with the court and Kevin Jon Heller and yours truly disagreeing.  The point I am trying to make here is that if Sea Shepherds can be considered pirates under international law, so can Greenpeace activists.  The charge of piracy may not be as absurd as Greenpeace claims. 

Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

Cross-posted on Communis Hostis Omnium

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers. 

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings. 

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity. 

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.