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December 26, 2012

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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)

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December 19, 2012

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A Sea Free From Piracy – When Mare Will be Really Liberum?

Written by Lina Laurinaviciute

pirates

A spot of a small boat approaching a merchant vessel crossing the Red sea or a cruise ship riding to the sunny Seychelles can be a sign of a great danger and a terrible misfortune if not noticed in time. Hugo Grotius, the Dutch philosopher, more than 400 years ago in his book “Mare Liberum” (The Free Sea) declared that it was not possible to own sea.[1] However, soon it was realized that its treasures were not without a master. In the same 17th century Sir Edward Coke, an English jurist and Member of Parliament, expressed concern about the criminals – the pirates, who were characterized as the hostis humani generis (enemy of all mankind). The recent situation, especially in Somalia, reveals, that this problem still has an alarming tendency even in the 21st century.

Indeed, nowadays, the character of a pirate is far from the one romanticized by Capt. Jack Sparrow. Usually, they are local seamen looking for a quick score, highly-trained guerrillas, rouge military units, or former seafarers recruited by crime organizations. Armed with knives, machetes, assault rifles and grenade launchers, they steal out in speedboats and fishing boats in search of supertankers, cargo ships, passenger ferries, cruise ships, and yachts, attacking them at port, on the open seas, in international waters.[2] Also, the “Jolly Roger” – a famous flag of pirates, is not used by pirates themselves, but indicates a great danger in the various maps of maritime risk intelligence.

The first international efforts to define piracy were made by signing the United Nations (hereinafter – UN) Geneva Convention on the High Seas in 1958 and the following UN Convention on the Law of the Sea, signed in 1982, which stated that piracy consists of any of these acts:

(a) any illegal acts of violence or 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:

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

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

(b) 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;

(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).[3]

The estimated figures of the International Maritime Bureau’s (IMB) Piracy Reporting Centre show, that worldwide in 2012, pirates have committed 278 attacks, hijacked 27 vessels, took more than 400 hostages, from which 147 are still held by Somali pirates.[4] In addition, 58 attempted attacks were reported.[5] Indeed, the drop in Somali piracy has brought global figures for piracy and armed robbery at sea down compared with 2011, when 439 worldwide piracy attacks were reported. Nonetheless, there can be no room for complacency till entire ships are hijacked and cargo crews simply vanish.[6] Mariners are warned to be cautious and to take necessary precautionary measures, especially when transiting through the coasts of Somalia, Nigeria, Benin, South East Asia and Indonesia.[7]

As mentioned before, in Somalia attacks have dropped significantly, mostly due to the increased military action on suspected skiffs, military anti-piracy operations and increase in armed guards onboard ships. However, Somali pirates still remain the greatest global threat, as the majority of the worldwide piracy attacks are attributed to them. Usually, the tactics of the Somali pirates is to attack ships in the northern, eastern and southern coast of Somalia. According to the IMB’s report of 2011, these pirates have also attacked vessels much farther off the Somali coast. They have moved deeper into the Indian Ocean, off Seychelles and the Maldives, and further south along the East African coast, off Kenya, Madagascar, and Mozambique.[8] To proceed with attacks very far out to sea, pirates normally use “mother vessels”, which are able to launch smaller boats to attack and hijack unsuspecting passing vessels.[9]

In the case of Nigeria all waters are considered to be risky. Pirates attack, hijack and rob vessels, kidnap crews along the coast, rivers, anchorages, ports and surrounding waters.[10] Piracy in the Gulf of Guinea has been over shadowed by Somali piracy in recent years and is becoming increasingly dangerous (34 incidents from January to September 2012, up from 30 last year) and has pushed westward from Benin to Togo, Ivory Coast and Ghana.[11] The recent attacks indicate a worrying development of a dangerous business in the region. Attacks in Indonesia remain a concern as well. These attacks, which are normally launched during the night, have largely taken place in the Malacca Strait, through which 30 percent of the world’s trade and half of the world’s oil shipments pass.[12]

As reported by the IMB, pirates’ attacks are often violent, planned and aimed at stealing oil, gas or other products which can be easily sold on the open market. To cover their tracks once the vessel is hijacked, they damage the communication equipment and at times even the navigation equipment. A ransom demanded for the release of the vessel and crew is also a prospective criminal deal of piracy.[13] An estimated global cost of piracy for 2010 was in the range of $7 to $12 billion, while for 2011 $7 billion were estimated only as Somali piracy’s impact on the global economy.[14] Piracy and armed robbery have great economic consequences, as they are disrupting the delivery of humanitarian aid, especially to Somalia, threatening vital sea lines of communication, economic interests and security of countries at risk, as well as international maritime security and commerce.

As a result of these challenges, many ships have begun to hire armed guards. While this tactic can be quite effective, however, there is not yet a process for regulating these guards, creating potential legal complications. The killings of pirates by security companies, as the one of 2010 when the private security contractors shot dead a Somali pirate, raises questions over who has jurisdiction over a growing army of armed guards on merchant ships flying flags from many nations.[15] A piracy expert Roger Middleton, from the British think tank Chatham House, cautions, that : ”there’s currently no regulation of private security on board ships, no guidelines about who is responsible in case of an attack, and no industrywide standards”. Therefore, the shipping industry and national governments should better coordinate their response to the threat of piracy.

The international community has taken a number of steps to tackle piracy when it emerged as a threat to international maritime security several years ago. In 2008, the UN Security Council passed a series of measures targeting Somali piracy, including Resolution 1816, which authorized states to undertake enforcement actions against piracy and armed robbery in Somalia. Following this and other UN resolutions, NATO, European Union, and United States started naval patrols operations in the Gulf of Aden.[16] This has improved security in that narrow body of water and pushed pirate activity into the broader Indian Ocean, making attacks more costly and risky for pirates, but also making it more difficult to counter attacks across such a vast area.[17]

Similarly, in 2011, Indonesia and Malaysia deployed two warships to the strait as part of a joint patrol targeting pirate attacks. The countries have also developed an “Eye in the Sky” operation with Singapore and Thailand, by which they jointly carry out air patrols.[18] However, not all navies, especially in the Gulf of Guinea have the resources to fight piracy far out at sea, so criminal gangs shift to other areas.[19]

Nonetheless, despite these efforts, it is realized that piracy cannot be solved by military means alone. The amount of ocean to patrol is too vast to protect every ship and, as risk analysis shows, pirates have responded to the increased naval presence by moving attacks farther out to sea. Piracy is most often just one symptom of the general collapse of law and order in the failed state. As a result, the attacks on shipping will continue as long as there is no central government capable of taking on the well-armed and well-paid pirate gangs.[20] Thus, tackling the root causes of piracy, supporting local communities and improving prosecution have a key importance for the rescue of the seas from pirates.

The UN Convention on the Law of the Sea makes piracy a universal crime, and subjects pirates to arrest and prosecution by any nation.[21] Taking the example of Somali’s piracy, the root of problem here has been the lack of an effective central government tied with limited economic opportunities throughout the country, where piracy became a mean of survival. In addition, Somalia is composed of a large number of clan groups, and the law is largely implemented at the local level. For many of these groups, piracy provides an economic lifeline, and so they are not willing to prosecute pirates.[22]

Indeed, pirates usually operate as a part of an organized crime network, such as JakartaGlobe in Indonesia. The warlords have intervened sending a good deal: traffickers living in Dubai or Yemen and fisherman are hired by gangs of pirates to execute criminal business. Foreign warships patrolling the area are creating some difficulties but the business is too lucrative to stop the traffickers.[23] Thus, it is clear that, if convictions of pirates in courts will not be successful, with many pirates walking away free, the threat of going to prison will not be a credible deterrent from piracy.

Furthermore, to combat piracy effectively means not only focusing on the pirates operating at sea but also changing the risk-reward equation for the ringleaders, clans providing support to pirates and agents providing intelligence from African ports. Further, it means reducing the freedom of movement pirates currently enjoy despite the private, national and international efforts. Piracy cannot also be defeated without the active cooperation of all the actors involved, including the regional governments.[24]

Pirates are well organised and resourced criminals. They rapidly adjust their tactics and manage to avoid naval patrols by operating farther offshore. Therefore, the holistic approach and the measures including military sea and land based anti-piracy action, preventive techniques used by the merchant vessels, strengthening law enforcement for the affective arrest and prosecution of pirates in the coastal countries, increasing cooperation between all counter-piracy actors and optimizing their efforts should be the priority to tackle evolving pirate trends and tactics. Equally, more significant impact should be made to eradicate the roots of piracy by building-up the capacity of the states and accelerating social and economic development. These measures in long term perspective can mitigate new developments in piracy, reduce its recent effect and contribute to the final defeat, enabling to declare that mare is liberum once more.

[1] United Nations Interregional Crime and Justice Research Institute, Freedom from Fear 3, Pirates of the XXI Century on the Treasure Hunt, April 2009, p. 31.

[2] Ibid., p 48.

[3] United Nations Convention on the Law of the Sea, 10 December 1982, Article 101.

[4] International Chamber of Commerce, Piracy & Armed Robbery News & Figures,3 December 2012,available at: http://www.icc-ccs.org/piracy-reporting-centre/piracynewsafigures, [accessed 19 December 2012].

[5] International Chamber of Commerce, IMB Reports Drop in Somali Piracy, but Warns Against Complacency, available at: http://www.icc-ccs.org/news/811-imb-reports-drop-in-somali-piracy-but-warns-against-complacency,[accessed 19 December 2012].

[6] Ibid.

[7] International Chamber of Commerce, Piracy & Armed Robbery Prone Areas and Warnings, available at: http://www.icc-ccs.org/piracy-reporting-centre/prone-areas-and-warnings, [accessed 18 December 2012].

[8] International Maritime Bureau, Global Piracy Report 2011, available at: http://www.ibm.com/investor/pdf/2011_ibm_annual.pdf, [accessed 19 December 2012].

[9] Supra note 8.

[10] Ibid.

[11] Supra note 5.

[12] Council on Foreign Relations, Combating Maritime Piracy, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376,[accessed 18 December 2012].

[13] Supra note 5.

[14] One Earth Future, The Economic Cost of Maritime Piracy, Working Paper, December 2010, available at: http://www.cfr.org/france/combating-maritime-piracy/p18376, [accessed 18 December 2012].

[15] World, Private Guards Kill Somali Pirate For First Time, 24 March 2010, available at: http://www.huffingtonpost.com/2010/03/24/private-guards-kill-somal_n_511143.html, [accessed 19 December 2012].

[16] Supra note 14.

[17] Council on Foreign Relations, Smarter Measures in Fight Against Piracy, 10 December 2010, available at: http://www.cfr.org/somalia/smarter-measures-fight-against-piracy/p23611, [accessed 19 December 2012].

[18] Supra note 14.

[19] Supra note 5.

[20] Supra note 15.

[21] Supra note 14.

[22] Ibid.

[23] Supra note 1, p. 13.

[24] Supra note 17.

* Photo of Mohamed Dahir / AFP – Getty Images

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December 18, 2012

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The Troubled Waters of India: Problem of Sea Piracy and the Law

Written by Garima Tiwari

Sea Piracy – a not very talked about subject and also not understood well because it doesn’t directly affect the daily lives of most people. But it is a major concern for shippers, insurance agencies, underwriters, crews and cargo owners and it does ultimately affect all consumers because it can drive up the price of goods, including oil, other commodities and manufactured products. In a way, shipping companies have pretty much been on their own to cope with piracy. Then national navies took up the cause, with loosely coordinated patrols to waive off pirates. This cooperation was enhance by reporting mechanisms and armed guards on ships. Then armed guards came on commercial vessels. Most guards are from private maritime security companies, and some came from host militaries.[i] This issue of confused safety regime came much into light in February 2012, when the Italian Marines based on the tanker Enrica Rexie allegedly fired on an Indian fishing trawler off Kerala, India killing two of her eleven crew. The Marines allegedly mistook the fishing vessel as a pirate vessel. The incident sparked a diplomatic row between India and Italy. [ii] Enrica Rexie was ordered into Kochi where her crew were questioned by officers of the Indian Police.

It must be noted that currently, India does not have a separate domestic legislation on piracy despite the fact that India is a signatory to both United Nations Convention on the Law of the Sea adopted by the United Nations on the 10th December, 1982 and 1988 Suppression of Unlawful Activities Convention. [iii]

In the absence of a dedicated legal mechanism; normally the pirates are charged under the Indian Penal Code(IPC) with Trespassing (Sections 441 & 447), Waging War Against the Country(Section 121), Attempt to Murder(Section 307) and Armed Robbery(Sections 397 and  398) and other laws such as Foreigners and Passport Act. Besides these, certain provisos of the archaic British Admiralty Law were also invoked. An attempt to repeal this vintage Admiralty Law with was initiated in 2005 through a draft Indian Admiralty Bill. Also the UN General Assembly Resolution 64/71 of 12 Mar 2010 which urged all member states to take necessary steps under their national law to facilitate the apprehension and prosecution of personnel who are alleged to have committed acts of piracy. The resolution also called for cooperation with the International Maritime Organization by adopting appropriate procedures including adoption of national legislation.[iv]

Given the increasing incidence of piracy, including within India’s Exclusive Economic Zone, and the increasing number of pirates apprehended by the Indian Naval forces, a need was felt for a domestic legislation on piracy which could provide the necessary legal framework within the country for prosecution of persons for piracy related crimes and in response the Piracy Bill 2012 has been laid.[v] India is not the only country grappling with the intricacies of law dealing with piracy and therefore, the bill might be of some help to other countries in need of it.

Following are some of the features of the Bill:

  1. Definition of Piracy is verbatim from the United Nations Convention on the Law of the Sea, 1982.
  2. Punishment: An act of piracy is punishable with imprisonment for life except where the accused has caused death in committing the act of piracy or attempt thereof in which case he may be punished with death and in addition the Designated Court may also subject to any restitution or forfeiture of property involved in the commission of the offence. On one hand, there is a demand for abolishing death penalties at all forums, including death as a punishment might not be taken well by the international community at large.
  3. An attempt to commit piracy or any unlawful attempt intended to aid, abet, counsel or procure for the commission of an offence of piracy shall also constitute an offence and is liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine. In addition, an accomplice to an act of piracy shall be liable on conviction to be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.
  4. Extradition and Reciprocity: The offence shall be deemed to have been included as extraditable offences and provided for in all extraditable treaties made by India. In the absence of a bilateral extradition treaty, the offences under this Act shall be extraditable offences between India and other Convention States on the basis of reciprocity.  What is interesting here is that for the purposes of application of the provisions of the Extradition Act, 1962 to the offences under this Act, any ship registered in a Convention State shall, at any time while that ship is plying, be deemed to be within the jurisdiction of that Convention State whether or not it is for the time being also within the jurisdiction of any other country.
  5. Extension to Exclusive economic Zones: It is also for the first time that the Indian jurisprudence is being extended beyond the territorial waters with particular reference to the Exclusive Economic Zone(EEZ) of India. This might raise some debate since the contiguous zones and EEZ for all practical purposes are considered as high seas except for certain environmental, fiscal related purposes and for the use of maritime resources by the coastal state.
  6. On the high seas, or in any other place outside the jurisdiction of any State, every State may 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. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorised to that effect.

The Bill seeks to address the ambiguous nationality issues of Somali pirates[vi] operating from a dysfunctional territory by including stateless persons under the ambit of the legislation. The second issue that has been dealt with is the ‘two ship dilemma’ when one or more of the crew members directly or indirectly facilitate an act of piracy. It also allows for inabsentia prosecution of the offences, and also provides for dedicated Sessions Court under each High Court through a consultative process with stringent bail provisions.  An interesting aspect of the Bill is that it puts the onus of proving the innocence on the accused, instead the basic caveat of ‘being innocent until found guilty’.[vii]

In addition there are some talks on coping with the problem like India, Sri Lanka and Maldives will soon sign a trilateral agreement on maritime cooperation to pool resources and share data in the region for better control over the territorial waters, and detect suspicious movements. The agreement aims for cooperation in carrying out surveillance, anti piracy operations and in curbing illegal activities including maritime pollution. A key aspect of information sharing is Maritime Domain Awareness. India had also agreements with Royal Thai and Indonesian naval forces to conduct coordinated patrolling in the east, around the region of the Malacca Straits.[viii]

While the law and agreements are in pipelines, an issue that came up sometime back was whether private military security companies (PMSC) are proving successful. It is agreed that there are many benefits of the PMSC but, the limitation comes from the lack of clear rules of engagement (ROE) on the use of force at sea and the consequences the contractors might face. There is a particular need for greater awareness of the consequences of opening fire against suspected pirates and insurgents who are subsequently found to be innocent. This is evident in light of the incident when the Italian guards wrongfully killed the fishermen.Accidental death or injury, for instance, could expose contractors, and conceivably those that employ them, to exorbitant liability claims and, worse, criminal charges as happened in India. [ix]

It is critical therefore, that a solid international legal framework regulating the use of PMSCs and their ROEs is developed. A  strong law, is definitely needed to avoid the ambiguities yet as the challenge is clearly beyond the capability of national navies alone, collaboration with the shippers is essential to getting control of this problem. Lacking international agreement to address the problem could, in the worst cases, lead to conflict.

[i] Lawrence P. Farrell Jr., Piracy: A Threat to Maritime Security and the Global Economy, November 19, 2012 available at http://www.marsecreview.com/2012/11/piracy-a-threat-to-maritime-security-and-the-global-economy/

[vi] A Template for Those at Risk: India’s Response to Maritime Piracy 2010-11 by  Swadesh M Rana, OEF Project Adviser and Focal Point for South Asia available at http://southasia.oceansbeyondpiracy.org/sites/default/files/a_template_for_those_at_risk_indias_response_to_maritime_piracy_2010-11v3.pdf

[ix] Peter Chalk  , Private Maritime Security Companies (PMSCs) and Counter-Piracy available at http://www.counterpiracy.ae/upload/Briefing/Peter%20Chalk-Essay-Eng.pdf

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December 1, 2012

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Danger on the High Seas: Piracy in the Modern Setting and its impact on the Phillipines

Written by: Ruben Ayson[1]

Maritime piracy is a growing global issue today. Eugene Kontorovich of the Northwestern University Law School has characterized modern piracy as an “epidemic.”[2] Until two decades ago, piracy was not seen any more as a menace to international shipping. It has unfortunately come back to haunt us, this time not as the pirates of days past but equally in a very violent way, using modern means and methods to the extent that it has become today a major source of concern for crews, ship-owners, insurers, coastal communities and concerned international organizations. The new face of this historic crime exacts worldwide human and financial costs, and poses an existential challenge to the piracy laws developed throughout the centuries. As with ancient civilizations fighting for survival against the pirate scourge,[3] the proliferation of piracy today poses drastic economic and security threats to many nations.

Piracy today includes new tactics employed to carry out a crime predating recorded history. Speedboats and automatic rifles, rather than frigates and swords, recently became the pirate’s weapons of choice.[4] While looting cargo or stealing ships outright remain standard practice, Somali pirates today also kidnap sailors for ransom.[5]

The modern pirate is different from his historical counterpart in many ways. Modern pirates have adapted to the globalized world in terms technical, political, economic, and social developments. In truth, “today’s pirates are considerably more sophisticated than their counterparts of yesteryear.”[6] Today’s pirates make use of the modern technologies that are available to them. They strategically plan each attack with the help of publicly available information about their target. They “often carry satellite phones, global positioning systems, automatic weapons, [and] antitank missiles.”[7] Some pirates now hijack “mother ships,”[8] which they use as bases from which to launch attacks against other vessels up to more than 1,000 miles from shore using “rocket-propelled grenade[s], ladders and extra barrels of fuel.”[9] The use of modern methods and technology has shifted the character of piracy making them precise and effective operations rather than acts which happen by chance. Therefore, the new face of piracy requires more modern means for combating it.

The shipping industry has long been considered one of the most dangerous in the world. Recently, however, piracy has risen up in the list of menaces faced by seamen.[10] According to the January 31, 2012 figures of the worldwide piracy center of the International Maritime Bureau (IMB), Somali pirates are currently holding captive 10 vessels and 159 hostages.[11] One hundred and two incidents of piracy and armed robbery have been reported to the IMB Piracy Reporting Centre (PRC) in the first quarter of 2012.[12] Eleven vessels were hijacked with 212 crew members taken hostage and four crew killed. A further 45 vessels were boarded, with 32 attempted attacks and 14 vessels fired upon – the latter all attributed to either Somali or Nigerian pirates.[13]

These pirates have a great effect on the world economy and trade. Hundreds of seafarers have been held hostage and forced to suffer physical and mental ill-treatment.[14] The Philippine Coast Guard has said that for the last few years, there were already 5,000 ships worldwide attacked by pirates and more than 1,000 seafarers, including Filipinos, have been taken as hostages, or used as human shields against rescuing government and military forces.[15]

This is a very serious problem, and more so for a country like the Philippines. The Philippines, an archipelago, relies heavily on the shipping industry. The Maritime Industry Authority (MARINA) of the Philippines said the country has 140 ships on the international register, and about 90 percent of these ships pass through the pirate hotspots of the Indian Ocean, Gulf of Somalia and Aden.[16]

Another facet of the issue pertains to the deployment a large number of Filipino seamen in the worldwide maritime industry. Figures from the Philippine Overseas Employment Administration show that in 2010, the Philippines deployed 347,000 shipboard personnel, around 5.06 percent higher than in 2009.[17] Despite the increasing risks of piracy, there does not seem to be any shortage of Filipinos wanting to apply for a job in the maritime industry.[18] Based on the projections of the Philippine manning industry, a record number of 400,000 Filipino seafarers will have been deployed worldwide by the end of 2011 despite the crisis in Europe.[19]

This large amount of Filipino seamen deployed can be explained from an economic standpoint. Filipino seafarers, who are better paid than other overseas Filipino workers, send higher than average remittances. In 2007, seafarers sent home $2.2 billion, about 15 percent of the $14.5-billion total remittances from Filipino workers overseas. That is comparatively huge since they make up only three percent of the 8.7 million Filipinos working and living abroad.[20] MARINA said with the Filipino seafarers raking in more than US$3.8 billion in revenue for the country in 2010 and more this year, the threats of piracy need urgent interventions from stakeholders.[21]

Filipino seafarers, comprising one-third of the world’s seafarers or numbering some 300,000, are among the most exposed to risks in the shipping world.[22] With the Philippines providing a large number of seafarers in the world, their vulnerability to piracy is high.[23]A third of all the world’s seafarers are from the Philippines, so it is not surprising that there is another less welcome statistic – in the past year, more Filipinos have been taken hostage than any other nationality.[24] The statistics prove to be staggering and grim. One Filipino shipping crewmember has been taken hostage every six hours somewhere in the world, according to an official running count by the Department of Foreign Affairs (DFA) of the Philippines.[25] Every time there’s a report of a ship hijacked off the coast of Somalia, almost always there’s a Filipino involved.[26] Since 2006 470 Filipinos have died at the hands of pirates.[27]Out of some 400,000 Filipino seafarers, who make up a quarter of the world’s seagoing workforce, 769 were captured between 2006 and 2011.[28] Filipinos are not being particularly singled out by the pirates, it is just that so many people from the Philippines work in the maritime industry.[29] It is because of this that the Philippines has a great interest in ensuring the safety of its seamen and in the measures, both legal and remedial, for preventing and prosecuting piracy.

Piracy significantly affects modern day society as it causes great damage and loss to world trade and economy. Pirates have acted boldly and without fear as they take advantage of the state’s and international community’s inaction. With many of the world’s goods, especially necessities like oil and fuel, passing through sea lanes, the threat of piracy simply cannot be ignored. It persists as a modern day menace due to a number of factors, primary of which is the difficulty to catch pirates as they can easily escape detection and capture in the vast oceans of the world. Many countries, even the big naval powers, do not have the resources to constantly monitor every square mile of water. Ultimately from the practical point of view piracy will be lessened if there is greater political will to stop it and if there is better coordination and cooperation between states that are affected by it.

But that is only one aspect of the problem. Effective laws and procedures, and their strict enforcement, will go a long way in eradicating piracy. But as it is, the existing legal framework proves to be an insufficient mechanism to alleviate the problem. International laws and treaties have not been fully implemented and are too fragmented. Also, while piracy is covered by universal jurisdiction, there is a seeming lack of cases prosecuted, as states have found it to be too burdensome to proceed with cases which entail additional cost and effort on the part of those who have apprehended or are in custody of pirates.

There must be a concerted attempt on the part of states to improve the existing legal framework on piracy as well as ensure that these improved laws are enforced. The establishment of an international tribunal on piracy will be a very important stride as this will provide a proper venue where affected parties will be able to seek redress. No longer must pirates be able to roam the seas with impunity and evade the long arms of the law. They must be brought before the courts of law, and justice must be meted out against them so that they will realize that they are not above the law. And having such a tribunal will show to modern pirates that the international community is united and is serious is combating piracy.

[1] Ruben S. Ayson Jr., a lawyer from the Philippines and currently works for the government of the Republic of the Philippines as an Associate Solicitor in the Office of the Solicitor General. He can be contacted for further information at: sir.ayson@gmail.com

[2] Eugene Kontorovich, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Cal. L. Rev. 243, 243 (2010)

[3] Pirates plagued the coasts of ancient Greece. Sandholtz & Stiles, supra note 3, at 32; Jesus, supra note 3, at 364.

[4] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[5] Jeffrey Gettleman, Pirates Tell Their Side: They Want Only Money, N.Y. TIMES, Oct. 1, 2008, at A1, available at 2008 WLNR 18637664.

[6] Michael H. Passman, Protections Afforded to Captured Pirates Under the Law of War and International Law, 33 Tul. Mar. L. J. 1, 6 (2008).

[7] Jack A. Gottschalk et al., Jolly Roger with an uzi: The rise and threat of modern piracy 22 (U.S. Naval Institute Press, 2000).

[8] See the International Chamber of Commerce’s Commercial Crime Service website, which maintains a section on Piracy Prone Areas and Warnings, and which is available at http://www.iccccs. org/home/piracy-reporting-centre/prone-areas-and-warnings. As of April 2010, the website warned that Somalis hijack ocean going fishing vessels for piracy operations, using these as mother ships from which to launch smaller boats to attack other vessels.

[9] Joshua Michael Goodwin, Note, Universal Jurisdiction and the Pirate: Time for an Old Couple to Part, 39 Vand. J. Transnaional. L. 973, 982 (2006).

[10] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012)

[11] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012)

[12]ICC- IMB Piracy and Armed Robbery Against Ships Report – First Quarter 2012

[13] Ibid.

[14] Supra, note 10.

[15]Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012)

[16] supra, note 13.

[17] Record number of Pinoy seafarers deployed in 2011, http://www.filipinosabroad.com/ofw-news/record-number-pinoy-seafarers-deployed-2011.html, (last visited June 28, 2012)

[18] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012)

[19] Supra, note 16.

[20] Every 6 hours, pirates seize a Filipino seaman http://pcij.org/stories/every-6-hours-pirates-seize-a-filipino-seaman/, (last visited June 28, 2012).

[21] Threats of piracy beset maritime industry, Filipino seafarers http://www.filipinosabroad.com/ofw-news/threats-piracy-beset-maritime-industry-filipino-seafarers.html, (last visited June 28, 2012).

[22] PHL can be model for maritime best management practices to deter piracy, http://www.mb.com.ph/node/300768/phl-can-be-model-maritime-be

[23] Ibid.

[24] supra, note 18.

[25] supra, note 19.

[26] supra, note 18.

[27] Anti-piracy group: In last 5 years, 65 seafarers died of torture, disease http://www.filipinosabroad.com/ofw-news/anti-piracy-group-5-years-65-seafarers-died-torture-disease.html, (last visited June 28, 2012).

[28] Ibid.

[29] Somali piracy takes heavy toll on Philippine sailors, http://www.bbc.co.uk/news/world-asia-pacific-15259042, (last visited June 28, 2012).

 

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November 22, 2012

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Let My People Go: Blowing the Whistle Upon African States

By Ronald Rogo   rogo.ronald@gmail.com

I have heard about the problem of human trafficking[1] for eons. Horrid stories about the pain of individuals held against their will within and outside their borders. The numbers are numbing: conservative estimate of 600,000-800,000 victims being trafficked annually across international borders. Many more cases are not reported, especially trafficking that occurs within the national borders.Resolutions have therefore been passed about how governments will fight the menace and ensure that future generations do not have to fight these ghosts again.

As a source market, the situation in Africa is just as dire, if not more, compared to other parts of the world. For example, according to the Global Report on Trafficking in Persons by the UNODC in some parts of Africa and the Mekong region, children are the majority (up to 100% in parts of West Africa) of the persons being trafficked. Needless to say, hundreds of thousands of Africans have been subject to sexual, physical and psychological abuse. Most Africans could identify one or two individuals who have been subjected to these inhuman conditions. For Africans, human trafficking is a chilling re-enactment of the trans-Atlantic slave trade. Only that this time the African governments are complicit, by design or default, in the entire business (others would argue that, yet again, the leaders are complicit…but that is a discussion for another day).

But let me fair. It is not entirely correct to state that nothing has been done by the African leaders. Numerous conferences have been held in the continent where the issue of human trafficking has been discussed. Glossy paged reports with policy and legal commitments have also been prepared. We have even passed laws that outlaw human trafficking[2].  In fact, even some of the highest public officials have created time out of their busy schedules to open these conferences, deliver the opening remarks and encourage the participants of the commitment of their respective governments on this issue. But that is all. After this, the documents are filed and shelved until the next donor conference when they would be dusted again and the speeches brushed up. The rigmarole. And that is exactly my problem.

While the rest of the world has developed regional instruments to tackle their specific needs on human trafficking, Africa has stagnated. In 2005, for example, the Council of Europe Convention on Action against Trafficking in Human Beings was established to assist combat human trafficking problem in the European Union. In addition, the European regional court-has established important jurisprudence in the area of human trafficking.

Africa developed the Ouagadougou Action Plan[3], where member states pledged to have “a comprehensive legislative and institutional framework that covers all aspects of trafficking in human beings in line with the UN Convention” and to “Ensure the effective prosecution of those suspected of involvement in trafficking in human beings, and deterrent penalties for those found guilty of trafficking”. However, as we shall see, these noble intentions have not been met by actual progress.  In contrast, one would barely get a case that signifies the importance of human trafficking in Africa. For example, while child sex trafficking was outlawed in Kenya in 2006 there has not been any significant reported case to date[4]. Even in situations where the victims’ cases have been filed in the European capitals the source countries have often inexplicably failed to take similar actions against the perpetrators. To put it more succinctly “Law enforcement systems have fail(ed) to prevent trafficking, punish traffickers, and protect those who are trafficked. In general, the failure of law enforcement officials to ensure security, particularly in the context of conflict, means that traffickers can act extremely violently with impunity”[5].

It seems to me that since the victims of human trafficking are mostly women and children-and conversely the beneficiaries are predominantly male[6]-the problem of human trafficking does not affect the power relations. The political power brokers can therefore afford to bury their heads in the sand. For instance, one would be hard pressed to recount an instance when an individual Parliamentarian in Africa has, suo moto, raised concern about the impact of human trafficking on their citizenry. Others would state that there are bigger problems to deal with in Africa. But what, pray tell, would be more urgent than preventing the decimation of the population in the continent?

Lack of the appropriate resources is often stated as an important barrier to effective combating of human trafficking. I would agree but qualify. Africa lacks willing implementers of the policies. People who will bite the bullet and get on with the task of rescuing generations of enslaved victims. Fighting human trafficking, just like drug trafficking, requires the expertise of a skilled police force. Specialised police units with the skills of identifying and being able to expose these tight networks need to have been created. So typically, if one would have to succeed one would need lots of solid evidence and co-operation of the victim. Most African states have not yet put these in place (although,  I submit, this is more for lack of the will and determination rather than a lack of resources).

Lastly, until African governments address the inequality situation in the continent human trafficking will continue being a problem. Most of the victims are deceived by the promise of a better life across the shores. Lack of employment opportunities, capital to start businesses or an investment climate for small businesses has led to the vulnerability of millions of young people. The Ouagadougou Action Plan identified  poverty, unbalanced wealth distribution, unemployment, armed conflicts, poor law enforcement system, degraded environment, poor governance, societies under stress as well as non inclusive societies, corruption, lack of education and human rights violations including , increased demand for sex trade and sex tourism as the root causes of trafficking in human in Africa. We have the diagnosis. Now let us treat the disease. Urgently.

[1] The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (the Palermo Protocol) defines human trafficking as “The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

[2] While a step in the right direction, the type and number of laws are still wanting. Few countries in Africa have specific legislation outlawing human trafficking as a specific offence (these include Djobouti, Ethiopia, Rwanda, Tanzania, Mozambique, the Gambia, Ghana, Liberia, Mauritaina, Senegal, Sierra Leone, Egypt and Nigeria). More countries only have laws that address only one specific form of human trafficking. In the USA, however, there are four different laws to combat human trafficking- The Victims of Trafficking and Violence Protection Act of 2000, the Trafficking Victims Protection Reauthorization Act of 2003, the Trafficking Victims Protection Reauthorization Act of 2005, and the Trafficking Victims Protection Reauthorization Act of 2008. In addition, an Office to Monitor and Combat Trafficking in Persons has been established under the State Department to co-ordinate efforts to prevent and prosecute perpetrators of human trafficking.

[3] Ouagadougou Action Plan To Combat Trafficking In Human Beings, Especially Women And Children As Adopted by the Ministerial Conference On Migration And Development, Tripoli, 22-23 November 2006

[4] However, it is important to applaud the efforts of the Nigerian government which prosecuted 209 trafficking cases in 2011, resulting in 23 convictions. While the numbers are low compared to the number of victims these efforts forecast what should happen if the rest of the states were as serious about combating human trafficking.

[5] HUMAN TRAFFICKING IN EASTERN AFRICA: Research Assessment and Baseline Information in Tanzania, Kenya, Uganda, and Burundi (Report by International Organization of Migration)

[6] The ILO estimates the annual proceeds from human trafficking at 32 billion US Dollars. This, no doubt, is a profitable enterprise with interests. The report can be accessed online at http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090356.pdf