28 septembrie 2010

The Law Applicable to Captured Pirates


Introduction

Sea piracy is a major international problem, it is responsible for about $16 billion in damage to international shipping each year. Hundreds of people are held hostage by pirates each year; some are assaulted, and a few are killed. Today’s pirates are considerably more sophisticated than their counterparts of yesteryear: they often carry satellite phones, global positioning systems, automatic weapons, antitank missiles and so on. Many have mundane motivations: cash, cargo, and ransom. Some are involved in organized crime. Others are linked with Islamist terrorist and separatist groups.


Modern piracy peaked globally in 2003, but reported attacks rose by about ten percent between 2006 and 2007. The most reported pirate attacks in 2007 occurred in Indonesian waters. Most recently East Africa emerged as a piracy hot spot, due to the collapse of the Somali state. But still, in the first quarter of 2008, the most reported piracy attacks occurred in Nigerian waters. Because many piratical attacks occur at shipping checkpoints and off the coast of oil rich Nigeria, piracy has begun to threaten global energy markets.[1]



1. The regulation of piracy in the international law of today

Beside national legislation, the piracy of today is regulated by the international law of the sea, which comprises the principles and rules of treaty and customary law between States relating among others to the exercise of jurisdiction over maritime spaces and over ships.



2. Who qualifies to be considered a pirate?

The definition of piracy has long been a source of controversy, because the municipal laws of many States denominate and punish as “piracy” numerous acts which do not constitute piracy by law of the nations, and which therefore are not of universal cognizance, so as to be punishable by all nations.[2]

Today it is thought that Article 15 of the Convention on the High Seas, adopted on 29 April 1958, represents the existing customary law. This provides:

(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.[3]


The essential feature of the definition is that the acts must be committed for private ends and that it must occur in a place outside the jurisdiction of any State.


However in certain situations the United Nations has the option of granting ad hoc authorisation to suppress piracy forcefully in a particular part of the world, as has recently been the case for Somalia. Several resolutions[4] were passed authorising states to enter Somali territorial waters to suppress piracy “by all necessary means,” and even to operate in Somalia itself.



3. Jurisdiction on the high seas

In general the flag State of a ship on the High Seas exercises exclusive jurisdiction over it, this is known as the concept of nationality of ships, and it stays at the foundation of the maintenance of order on the high seas. It is, basically, the flag state that will enforce the rules and regulations not only of its own municipal law but of international law as well,[5] this point of view was elaborated in the Lotus case.[6]



4. Right to visit

Even so in some instances the authorities of a non-flag state are entitled to take action against pirate vessels on the high seas. But since it is not always immediately apparent whether such action is permissible, international law recognizes an intermediary position[7], the so called right of visit. This right is an exception of the rule mentioned in the above subtitle, because customary international law recognises the right of warships to approach to ascertain the nationality of ships. However, this right of approach to identify vessels does not incorporate the right to board or visit ships. This may only be undertaken, in the absence of hostilities between the flag states of the warship and a merchant vessel and in the absence of special treaty provisions to the contrary, where the ship is engaged in piracy or the slave trade, or, though flying a foreign flag or no flag at all, is in reality of the same nationality as the warship or of no nationality. The objective of this visit is to verify whether the warships suspicion were justified. But the warship has to operate carefully in such circumstances, since it may be liable to pay compensation for any loss or damage sustained if its suspicions are unfounded and the ship boarded has not committed any act justifying them. This right is codified in Article 22 of the Convention on the High Seas and later incorporated in Article 110 of the United Nations Convention on the Law of the Seas in 1982.



5. Right to seize a pirate ship and arrest the persons aboard

How I stressed before the essence of piracy under international law is that it must be committed for private ends (hijacking or takeover for political reasons is automatically excluded). Similarly, any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category. Under Article 105 of United Nations Convention on the Law Of the Sea (hereinafter UNCLOS) any and every state may seize a pirate ship or aircraft whether on the high seas or on terra nullius and arrest the persons and seize the property on board. In addition, the courts of the state carrying out the seizure have jurisdiction to impose penalties, and may decide what action to take regarding the ship or aircraft and property, subject to the rights of third parties that have acted in good faith.[8] According to UNCLOS, only certain ships are entitled to intervene, i.e. “warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect”, despite the fact that certain companies, such as Blackwater, has shown a keen interest in counter-piracy.[9]

In conclusion this article clearly provides scope for the lawful prosecution of pirates anywhere by the state apprehending them.

This is possible because this crime is quite exceptional in international law, where so much emphasis is placed upon the sovereignty and jurisdiction of each particular state within its own territory. The explication to this is that certain crime, such as piracy, are so prejudicial to the interests of all states, that customary international law does not prohibit a state from exercising jurisdiction over them, wherever they take place and whatever the nationality of the alleged offender or victim.[10] It is said that those committing piratical acts have rendered themselves “enemies of all mankind”.[11]



6. Who has the right to prosecute pirates?

All states have the right, or even the duty, to apprehend and prosecute pirates lawfully. Piracy may also belong to the very limited body of so-called jus cogens crimes, i.e. peremptory and non-derogable norms, which not only can, but must, be prosecuted by everybody, thus constituting an obligatio erga omnes, regardless of any national or international legislation or lack thereof.



7. What happens after a pirate is captured?


7.1. Protections afforded to captured pirates

In the past pirates captured in flagrante delicto, while in the commission of a crime, were executed without a trial.[12] Under UNCLOS, modern international law has authoritatively required a trial for suspected pirates.[13] However, once captured, it is unclear what protections they can claim under the law of war and international law, because pirates are nonstate actors who act like combatants.

The Third Geneva may apply in some circumstances to a small number of captured pirates. I would like to underline the importance of this protection. If a pirate is considered a protected person (by the Geneva conventions), he cannot be convicted for he’s wrongful acts, not even for murder. Only detained until the end of the so called “armed conflict.”.

A deeper analysis suggests that captured pirates are likely to be prisoners of war in only three very narrow circumstances:

(1) they are actually members of the armed forces of a state but are pursuing piratical attacks for private ends;

(2) they are fighting as part of an organized resistance movement;

(3) the suspected pirates are actually not pirates but rather a legitimate naval levée en masse, rising up to repel invasion, mistaken for pirates.

In the any of the above mentioned conditions are fulfilled the captured pirates can claim prisoner of war status and if there is any doubt as to their status, they are entitled to be treated as prisoners of war until a competent tribunal determines otherwise.[14] Next I will analyze the applicability of every point separately.


(1) MEMBERS OF ARMED FORCES

Allow me to start with an example, Somalia has no coast guard or navy since 1991, when warlords ousted the ruling dictator and then turned on each other, as a consequence some pirates in Somalia have supposedly claimed to be defending the sea resources of the Somali territorial waters as members of the Somali Coast Guard.[15] In a hypothetical situation if members of a state’s army or coast guard committed piracy on a private ship for private ends, their capture by a warship of another state might implicate an armed conflict between high contracting powers. Therefore, the Third Geneva would apply and captured Somali army or coast guard members turned pirates would be prisoners of war as members of armed forces.[16]

The acts of piracy committed by crew members of a government vessel who mutiny are piratical acts even though they do not meet the private ship requirement. This is possible because article 101 of UNCLOS assimilates the acts committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft with the acts committed by a private ship or aircraft.

A subcategory to this point would be the category of members of armed forces professing allegiance to a government or authority not recognized by the detaining power. I must mention here that sometimes it is very hard, if not impossible to determine to universal satisfaction whether some self-proclaimed rebels or governments-in-exile are entitled to the benefits of the law applicable to belligerents in an armed conflict of international character, or are merely criminals subject to the municipal criminal law of the State whose territory, vessels or nationals are victims of the “pirates”.[17]

This would be the case of persons fighting in conjunction with a state recognized as a belligerent, who are raiding ships as part of their war policy. In this instance they would not fight for private ends, so they would not qualify as pirates. Such persons that have attacked unarmed civilian ships as part of their war effort may be war criminals but not pirates.


(2) MEMBERS OF MILITIAS NOT PART OF THE ARMED FORCES FIGHTING AS PART OF AN ORGANIZED RESISTANCE MOVEMENT

Some pirates in Indonesia are members of separatist groups and some pirates in Somalia are loyal to regional warlords, some of these movements might be qualified militias or resistance movements.

Captured members of militias or organized resistance movements not part of the armed forces of a state are prisoners of war if they meet four qualifying requirements in article 4(A)(2) of the Third Geneva.

To qualify as prisoners of war, captured pirates who claim to be members of militias or organized resistance movements not part of the armed forces must (1) be commanded by someone responsible for his subordinates, (2) have “a fixed distinctive sign recognizable at a distance,” (3) carry arms openly, and (4) conduct “their operations in accordance with the laws and customs of war.”[18] Some of these criteria’s are respected by pirates, but no pirate conducts his piracy operations in accordance with the laws and customs of war because the act of piracy is itself outside the law of war.

However, if captured by an enemy for acts other than piracy itself, such pirates may be prisoners of war if they fulfil all four of the requirements. There is historical precedent for organized pirate resistance movements not part of the armed forces of a state working in conjunction with belligerent powers during wartime. These pirates may come closest to fulfilling the four requirements for prisoner of war status set out above.[19]


(3) THE SUSPECTED PIRATES ARE ACTUALLY NOT PIRATES BUT RATHER A LEGITIMATE LEVEE EN MASSE:

Inhabitants of a non-occupied territory who are captured while spontaneously taking up arms to resist invading forces, without having had time to form themselves into regular armed units, are prisoners of war provided that they carry arms openly and respect the laws and customs of war.[20]

Some Somali pirates have claimed to be rising up against outside encroachment on Somali marine resources. This is not a real levée en masse as described in the Third Geneva because economic intrusion is not a real invasion and another impediment is UNCLOS, which expressly provides that the piratical acts most occur on the high seas. Although, it is not impossible that pirates may explain how their acts were caused by incursions into their territorial sea.[21]



Can piracy be assimilated to terrorism?

Another interesting question in this field rises from the experts prediction, according to which in the future there is a possibility that ships loaded with oil, gas, or nuclear and chemical waste to become terrorist targets. Terrorists could simply hijack a ship with dangerous cargo and then sail into a major city harbor, such as Boston or London, for catastrophic detonation.[22] The question is can these piratical acts



7.2. Application of the United Nations Convention Against Torture

Under UNCAT pirates cannot be tortured or ill treated and when cooperating with other states to punish pirates, the capturing state cannot turn the pirates over to another state for trial if there are substantial grounds to believe the pirates would be tortured.[23]

This rule has a significant impact on captured pirates because it limits the states to which a captured pirate can be taken for trial, and most importantly there are no exceptions from this rule. These criteria conceivably disqualify many states that have the potential to be places for trials of captured pirates.

Even if non of the above mentioned conventions apply, pirates are subject to protections by basic human rights law, which are the fundamental guarantees provided for by customary international law.[24]



7.3. Evidence against pirates

The pirates know the law. When they see a naval frigate coming, they dump their weapons, boarding ladder, and even satellite telephones over the side making impossible for the crew to gather evidence. For them is very clear when they intercept a pirate party, but for the public prosecutors this is not always enough.[25]



7.4. Trial of pirates

In brief, if pirates make it to the courtroom, without being released, the pirates of today are entitled to all of the protections of criminal defendants and also a portion of those afforded to enemy prisoners.[26] The United States conceded that captured pirates would, and should, receive Geneva Conventions treatment, but they should also remain eligible for prosecution. So the main idea is that upon capture pirates will benefit of the protection granted by the Geneva Conventions, but in the same time they will be prosecuted for piracy under the laws of the capturing state.

International law encourages international prosecution of pirates. However, separate developments in international law make detention and prosecution difficult and potentially embarrassing for the forum state. This is the reason why there have been almost no prosecutions of pirates in domestic courts so far. However, the few cases are very relevant: Somali pirates were captured by a U.S. warship and turned over to Kenya for trial by the United States in 2006; and groups of pirates captured by the United States and Britain since the Memoranda of Agreement with Kenya have been already turned over.

The transfer of detainees to a neighbouring country, like Kenya, is the most convenient solution for western powers. UN's International Maritime Organization even set up an anti-piracy centre in the port of Mombasa. The advantage is represented by the fact that Trials in Kenya proceed without the expansive protections of the European Convention on Human Rights or the U.S. Constitution and if because lack of evidence the suspected pirate cannot be convicted, the danger of asylum requests from behalf of the pirates is eliminated. The question is if Kenya wants to become a dumping ground for Somali pirates? Similarly, Denmark and Russia have handed over suspects to Yemen.[27]

Recently also self-declared parts of Somalia, like Puntland, have handed out sentences to captured pirates, even execution.[28]



7.5. Conviction of pirates

If found guilty, pirates are sentenced to imprisonment according to the municipal law of the prosecuting state. At least that is how it is supposed to work. In practice, whether a country can prosecute arrested pirates depends on its own laws. It is a problem the Danish Navy came up against in September 2008, when the flagship Absalon detained 10 suspected armed pirates in the seas off Somalia after they had allegedly been attacking merchant ships. According to Denmark’s laws, the country has national criminal jurisdiction only if the pirates are attacking a Danish ship or Danish citizens. So they couldn’t bring them for prosecution in Denmark, and in the end the pirates were released in a safe place on the shore of Somalia. And this is not an isolated case, the German authorities had to release suspected pirates in December 2009, and it was discovered that also the UK proceeded this way at least two occasion.[29]



Conclusion

In the present at least 23 foreign vessels with more than 411 crew members are currently held by pirates, according to Ecoterra International, an organisation monitoring piracy and in 2009 there were more than 200 attacks by Somali pirates - including 68 successful hijackings - and ransoms believed to exceed $50m in total were paid, the organisation said.[30]

It’s pretty much a fact that the world’s most advanced navies failed to end piracy. So what would be the cure? The private sector may provide the most efficient, responsive means of dealing with pirates. When the nongovernmental IMB Piracy Center took part in the search for ten hijacked ships in 2002 and 2003, nine of those were returned to their owners. This system of bounty hunters is already implemented in the United States in order to bring fugitives to the proper authorities, it can be sad that it is a success. The international bounty hunters would patrol waters and/or pursue pirates to present them for trial to the state with the greatest resulting loss.[31]

In order to fight against the rising global piracy, states will have to cooperate and increase their effort to capture and convict pirates. But states must fight piracy in a legal way that respects the humanity of captured pirates.




List of sources


Legal Instruments

· Geneva Convention (III) relative to the Treatment of Prisoners of War;

· Official Statement of the ICRC on The relevance of IHL in the context of terrorism;

· United Nations Convention Against Torture and other cruel and Other Cruel, Inhuman or Degrading Treatment or Punishment;

· United Nations Convention on the High Seas;

· United Nations Covnention on the Law of the Sea;

· United Nations Security Council Resolution 1818 from 2 June 2008;

· United Nations Security Council Resolution 1838 from 7 October 2008;


International Court of Justice

· Lotus Case (France v Turkey), PCIJ Report 1927, Series A, No 10; hereinafter cited as Lotus case.


Books

Aust, A. (2005), "Handbook of International Law", Cambridge: Cambridge University Press;

Bindschedler, R., Buergenthal, T. (1989), Encyclopedia of Public International Law, Amsterdam, Elsevier Science Publisher B.V.;

Brownlie, I. (2003), “Principles of Public International Law”, Oxford, Oxford University Press;

Evans. M.D.,(2006), “International Law”, Second Edition, Oxford: Oxford University Press;

Shaw, M. (2003), “International Law”, 5’th Edition, Cambridge: Cambridge University Press;


Periodicals

Kontorovich, E. (2009), The Difficulties of Prosecuting Pirates and Terrorists in Northwestern University School of Public Law and Legal Theory Series, No. 09-10;

Moller, B. (2009), “Piracy, Maritime Terrorism and Naval Strategy”, Copenhagen: Danish Institute for International Studies Report 2009:02;

Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1.


Newspaper articles

http://www.bbc.co.uk/news/world-africa-11250785

http://news.bbc.co.uk/2/hi/7932205.stm

http://www.bbc.co.uk/news/world-africa-11426560

http://news.bbc.co.uk/2/hi/africa/8371139.stm



[1] Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, pp. 5-6

[2] Brownlie, I. (2003), “Principles of Public International Law”, Oxford, Oxford University Press, p. 229

[3] Article 15 of Convention on the High Seas

[4] UNSCR 1818 of 2 June 2008; UNSCR 1838 of 7 October 2008

[5] Shaw, M. (2003), “International Law”, 5’th Edition, Cambridge: Cambridge University Press, p. 545

[6] Lotus case

[7] Evans. M.D.,(2006), “International Law”, Second Edition, Oxford: Oxford University Press, p. 637

[8] Article 105 UNCLOS

Article 19 Convention on the High Seas

Shaw, M. (2003), “International Law”, 5’th Edition, Cambridge: Cambridge University Press, p. 549

[9] Moller, B. (2009), “Piracy, Maritime Terrorism and Naval Strategy”, Copenhagen: Danish Institute for International Studies Report 2009:02, p. 18

[10] Aust. A, (2005), „Handbook of international law”, Cambridge: Cambridge University Press, pp.45-45

[11] Evans. M.D.,(2006), “International Law”, Second Edition, Oxford: Oxford University Press, p. 637

[12] Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, p. 17

[13] UNCLOS Article 105

[14] Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, p. 20

[15] http://www.nctimes.com/news/national/article_488c9c35-c69e5069b8b1388761d65860.html

[16] Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, pp. 21-2

[17] Bindschedler, R., Buergenthal, T. (1989), Encyclopedia of Public International Law, Amsterdam, Elsevier Science Publisher B.V., p. 262

[18] Art. 4 A (2) from the III. Geneva Convention relative to the Treatment of Prisoners of War

[19 ]Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, p. 25

[20] Art. 4 A (6) from the III. Geneva Convention relative to the Treatment of Prisoners of War

[21] Passman, M.H. (2008), Protections Afforded to Captured Pirates Under the Law of War and International Law in Tulane Maritime Law Journal, vol. 33, no. 1, p. 29

[22] Bornick, B. A. (2005), Case Comment: Bounty Hunters and Pirates: Filling in the Gaps of the 1982 U.N. Convention on the Law of the Sea in Florida Journal of International Law, p.259

[23] Article 2 of UNCAT

[24] Official Statement of the ICRC on The relevance of IHL in the context of terrorism 4(b)

[27] Kontorovich, E. (2009), The Difficulties of Prosecuting Pirates and Terrorists in Northwestern University School of Public Law and Legal Theory Series, No. 09-10, pp. 33-4

[31] Bornick, B. A. (2005), Case Comment: Bounty Hunters and Pirates: Filling in the Gaps of the 1982 U.N. Convention on the Law of the Sea in Florida Journal of International Law, p.266-7

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