Justice for the Rohingya and Minority Groups in Myanmar

Since August 2017, the plight of the Rohingya people has re-captured the attention of the international community. The United Nations and other parties have been slow to label the ongoing situation in the Rakhine region genocide.  However, recent statements by UN Special Advisor on the Prevention of Genocide indicate a significant change in international rhetoric. The current crisis was a result of the alleged attacks by a rag tag group known as the ARSA which occurred in August 2017. The military responded to these attacks which resulted in thousands fleeing. The disproportionate response by the military and various mobs have continued to perpetuate genocide and crimes against humanity resulting in a humanitarian emergency. Continue reading

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Somewhat Short of a Universal Jurisdiction

Universal Jurisdiction

Article 105 of the United Nations Convention on the Law of the Sea of 1982[1] allows any State either on the high seas, or in any other place outside the jurisdiction of any State, to seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board as to decide upon the penalties to be imposed, and to determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.[2] This rule which has been codified only in the XX century is called ‘universal jurisdiction’ or the ‘universality principle’.[3]

However, as of today despite the universal acceptance of this rule as one of the oldest international customs[4] the issue of the practical implementation of the universal jurisdiction of states based on the aforementioned principle is extremely serious. In the absence of clear legal regulations governing its use, universal jurisdiction not only reduces the effectiveness of international struggle against piracy but in many cases is a limiting factor.

The universality principle is a unique legal phenomenon: in contrast to other types of international jurisdiction, universal jurisdiction is not based on the idea of sovereignty or acquiescence of a state, rather it strives to overcome them. Therefore, universal jurisdiction is often defined as one that might be exercised by a state against the will of others who possess either territorial or other forms of jurisdiction. The universal jurisdiction doctrine stems from the fact that some crimes are so dangerous both for each and every state and international legal order in general that their perpetrators should not enjoy impunity by resorting to the principle of respect for state sovereignty and inviolability of borders.[5]

Up-to-date, the vast majority of scholars are of the view that piracy is the only crime whose universal jurisdiction enjoys customary status. However, despite the fact that universal jurisdiction over piracy has existed for years there has been an extremely small number of judicial cases on piracy initiated by resort to this principle. Unfortunately, the fact that many states still do not allow their courts to exercise universal jurisdiction over pirates only worsens the situation.[6]

Moreover, any state which has such a jurisdiction may voluntarily abandon it in favor of another state.[7] Given such a situation, a fair state abandoning its jurisdiction would assume that the requiring state has a jurisdictional priority, whereas an unfair state would consider the feasibility of its actions on bringing the perpetrators to justice instead of being guided by the aim of protecting its citizens or fulfilling its international obligations. In any case the result will be the same: criminals might remain at large and continue their criminal craft.

The principle of universality is enshrined in miscellaneous international acts which theoretically should facilitate its implementation. However, in practice, the existing legal regulations are not sufficient as either to construct the mechanism of appropriate actions or to clarify the meaning of the principle. In this regard the work of the International Law Commission[8] on the synthesis of current practices and the development of common criteria for its contemporary use is deemed to be of an extreme importance.

Yet, the paradoxical situation related to the criminal jurisdiction still remains. Whereas some criminal offences entail the will of several states to exercise their jurisdiction over it, piracy as a crime of serious concern to international legal order does not enjoy the same privilege whilst states refuse to exercise jurisdiction referring to the existence of a right rather than an obligation. Thus, by avoiding proper action states actually shift the burden of punishing those responsible for piracy to states whose vessels or citizens will become victims of this crime the next time it happens. As a result, the principle which was conceived as a guarantee of the inevitability of punishment in practice turns into an instrument enabling states to avoid their international and domestic obligations.

Written by Jan Guardian


[1]       UN General Assembly, Convention on the Law of the Sea, 10 December 1982 [online][accessed 29 December 2012].

[2]       Ibid., art. 105.

[3]       For more information on universal jurisdiction, see: E. Kontorovich, A Positive Theory of Universal Jurisdiction. George Mason Law & Economics Research Paper No. 04-25, Arlington, VA: GeorgeMasonUniversity, 2004.

[4]       W. B. Cowles, Universality of Jurisdiction over War Crimes. 33 (2) California Law Review 189 (1945).

[5]       Mary Robinson, ‘Foreword’, The Princeton Principles on Universal Jurisdiction, PrincetonUniversity Press, Princeton, 2001, p. 16.

[6]       E. Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45(1) Harvard International Law Journal 183 (2004).

[7]       See e.g.: A-G Israel v Eichmann , Supreme Court Judgment of 29 May 1962, (1968) 36 International Law Reports 291, para. 12(d).

[8]       UN General Assembly, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee. GA/L/3415, Sixty-sixth General Assembly, Sixth Committee, 12 October 2011 [online][accessed 29 December 2012].

Ahoy Captain! Universal means UNIVERSAL!

By Ronald Rogo  rogo.ronald@gmail.com

 

                                                               “The code is the law!”

                                            Captain Teague in Pirates of the Caribbean

The fight against piracy has gained urgency in recent times, especially off the coast of the Somalia waters. Perhaps the most troubled waters in the world, the increased incidents of piracy have not only caused unnecessary deaths but increased the costs of doing business[1].  The international community has therefore been forced to seek for solutions to this vice. The United Nations Security Council, for example, has passed several resolutions on combating piracy off the coast of Somalia[2], most of which give authority to the member states to enter and use force, even within the territorial waters of Somalia, in order to combat piracy. This, in essence, was an echo of the principle of universal jurisdiction which was first enunciated in relation to acts of piracy. The principle of universal jurisdiction, essentially states that any country has the jurisdiction to try certain crimes, irrespective of the fact that there is no clear nexus between the criminal activities and the trial state[3]. The universal jurisdiction of states in relation to acts of piracy is also recognized under the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS). Article 105 gives any signatory state the power to “seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board” whenever a vessel is on the high seas[4]. The rationale is that since the high seas are essentially “no man’s land” criminal activities that occur here should not go unpunished due to the lack of territorial or national jurisdiction by any state.

The issue of the universal jurisdiction of states was expounded in the Kenyan case of Republic V Chief Magistrates Court, Mombasa Ex-Parte Mohamud Mohamed Hashi & 8 Others[5]. In this case the applicants were arrested on the High Seas of the Gulf of Aden in the Indian Ocean by the German Naval Vessel, the FGS Rhineland – PFALZ, with the help a U.S. helicopter assigned to the USS – Monterey. They were then taken to Mombasa Kenya and placed in the custody of the Kenyan police. They were later charged with the offence of piracy jure gentium for attacking  the sailing vessel named MV Courier while armed with three AK 47 Rifles, one pistol Tokalev, one RPG-7 portable Rocket Launcher, one SAR 80 Rifle and one Carabire rifle and putting the lives of the crew in fear. The accused persons filed a judicial review application in the High Court of Kenya challenging their charges on the basis that the alleged offense took place in the high seas of the Gulf of Eden. The Kenyan courts, they argued, did not therefore have the jurisdiction to try them since “the offence alleged was committed outside the territorial jurisdiction of Kenya and outside the Kenyan waters…neither a Kenyan citizen or Kenya property was involved…the arrest was made by the German Navy taking part in operations in the Gulf of Aden”. The High Court accepted this argument holding inter alia, that “The High Seas are not and cannot be a place in Kenya or within the territorial waters of Kenya. In fact by definition they are strictly deemed to be outside the jurisdiction of all states in the world or on earth unless some law in the state brings it into their local jurisdiction whether Municipal Law or an International Convention etc”. The High court further held that the trial court “had no jurisdiction over the matter when the charges were preferred, and when the proceedings took place. The said court acted without jurisdiction when they took the pleas of the Applicants and heard the case up to the close of the prosecution case. The whole process was therefore null and void, ab initio. A nullity from the word go”[6]. However, the High Court of Kenya ignored the provisions of UNCLOS providing for universal jurisdiction[7]. This decision was later overturned by the Court of Appeal. The Court of Appeal held that the High Court failed “to appreciate the applicability of the doctrine of universal jurisdiction in reference to the case at hand”[8].

That said, it is important to note that Article 105 of UNCLOS provides that “the courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith” (emphasis mine). In other words the State that seizes any vessel on the high seas ought to be the one that actually tries the suspected pirates[9]. This rule has largely been ignored in current practice where states in the developed world only arrest the pirates and “dump” them in countries in the developing world[10]. A few examples should suffice to illustrate the point. On February 19, 2012, four suspected Somali pirates, captured by the Danish naval troops, were taken to Kenya after being rejected by the government in Seychelles.  In March 2009, seven suspected pirates were arrested in the Gulf of Aden by the US Navy after a tanker, Polaris, sent a distress call that they were being attacked[11]. Eugene Kotnorovich estimates that “universal jurisdiction was used in prosecuting only 0.53% of clearly universally punishable piracy cases between 1998 and 2007, with the figure increasing to 2.5% between 2008 and June 2009, and reporting that Kenya accounts for all but three cases of invoking universal jurisdiction over piracy in the past 12 years, with responsibility for 79% of cases[12] (emphasis mine).

The reasons for this misnomer are varied. However, the most common issue is the question of what to do with the pirates if they are acquitted or once they have served their sentence. Since the principle of non refoulement applies universally as a peremptory norm of international law, the states where the trials are held will be “stuck” with the pirates either on acquittal or upon serving sentence as they often cannot return them to Somalia and the trial state will be obliged to offer them asylum[13].William Langeweshice, quotes an Indian official, for example of stating: “What would happen if India convicted and imprisoned them, but after their release Indonesia refused to recognize or accept them? . . . They would become stateless people . . . Then the problem for India would be where to send them”[14]. But this problem creates greater burdens to poorer countries like Kenya and Seychelles which have an additional cost to the trial process. An already overwhelmed police and prison system is further stretched without significant financial assistance from the international community[15]. I therefore hold the view that the current practice is not sustainable. The country that arrests the suspected pirates ought to be the one that prosecutes. After all, universal jurisdiction means just that…universal!


[1] For more analysis of effects of piracy off the coastal shelf refer to previous posts on this blog on the subject.

[2] United nations Security Council Resolutions No. 1816, 1838, 1846 and 1851 of 2008, 1897 of 2009, 1918 and 1950 of 2010, 1976, 2015 and 2020 of 2011.

[3] The common nexus in relation to criminal jurisdiction relates to criminal activities that occur within the territory of a given state. However, some states also have jurisdiction over some criminal activities committed by their nationals overseas and criminal activities overseas where their nationals are victims.

[4] In Article 86 of UNCLOS, the high seas is taken to mean “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State”

[6] Ibid

[8] The full decision of the Court of Appeal can be accessed online at http://piracylaw.files.wordpress.com/2012/10/kenya-hashi-appeal-opinion.pdf. The same position was held in the case of Hassan M. Ahmed V Republic [2009] eKLR. It can be accessed online at http://kenyalaw.org/CaseSearch/view_preview1.php?link=66028601162227766885163

[9] Admittedly, the provision is a drafted in permissive rather than in a rigid way. However, it is my view that it represents the rule-of-the-thumb arrangement, only to be departed from in exceptional cases.

[10] For analysis of the number of piracy related trials held by various countries go to http://www.cbrne-terrorism-newsletter.com/resources/2011%20-%20Prosecuting%20Pirates_Challenges%20for%20the%20Prisons.pdf

[12] Eugene Kontorovich & Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy (Northwestern Public Law Research Paper No. 09-26, 2010); 104 AM. J. INT‘L. L. 8-9 (forthcoming 2010), available at http://ssrn.com/abstract=1519518

[13] The principle of non refoulment is also expounded in CAT Article 3(1), ICCPR Article 7, and ECHR Article 3, which all protect individuals from being returned to a country where they are at risk of torture, inhuman or degrading treatment, or punishment.

[14] William Langewiesche, The Outlaw Sea: Chaos And Crime On The World‘S Oceans 75 (2004)