Diminishing Space for the International Criminal Court

From recent events around the global the continued efficacy of the ICC as a global court of last resort is seemingly under threat. The loud silence of the prosecutor new armed conflicts emerge and the old conflicts take new dimensions heightens the question regarding the continued viability of the court. Continue reading


Challenges in International Justice

Written by: Regina Paulose

Josh D. Scheinert wrote a post in the Huffington Post critiquing the possible failures of the ICC.[1] While his post raises interesting points, his critique seems a bit unfair.  Continue reading

Simone Gbagbo: ICC’s leading lady

Written by: Regina Paulose

In a significant turn of events, Côte d’Ivoire has determined that it will file a motion to dismiss the ICC warrant issued in February 2012 for Simone Gbagbo.[1] Simone Gbagbo is the wife of former Côte d’Ivoire President Laurent Gbagbo, who has a case pending before the ICC.  The ICC has charged Simone Gbagbo with different crimes under crimes against humanity during the post –election violence that took place in Côte d’Ivoire. Simone Gbagbo’s case is an interesting one. She is the first female to be charged with crimes by the ICC.[2]  Continue reading

Do Not Touch My President

The election of Uhuru Kenyatta and William Ruto as President and Deputy President of Kenya respectively brings again to the foreground the issue of immunity from prosecution. The two are currently suspects of international crimes facing charges at the International Criminal Court. Do they, by virtue of their current status, enjoy any immunity-whether functional or personal-from prosecution by the International Criminal Court? This question, especially in light of the provisions of the Rome Statute, might seem to be obviously in the negative. After all the provisions of Article 27 are patently unambiguous:

“This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government…shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence”
“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”

One must applaud the attempt by the drafters to ensure that impunity is fought on all fronts. True, criminals should not be allowed to use their positions to hide from the natural consequences of their actions. The echo of this call comes all the way from the Nuremburg Military Tribunal. Indeed even the United Nations General Assembly affirmed the Nuremburg principles by resolution thus:
“(1) any person who commits an act which constitutes a crime under international law is personally responsible and as such is liable to punishment; (2) that the act is not in violation of internal law within the host State does not exempt responsibility for it under international law; (3) the status of the defendant does not exempt him from responsibility under international law; (4) that the act was an order by the government or superior does not exempt it from responsibility under international law; (5) any person charged with a crime in violation of international law has a right to a fair trial; (6) the crimes in violation of international law are crimes against peace, war crimes and crimes against humanity; (7) collaboration in the foregoing crimes is a crime under international law” (i)

The ICC itself has also had occasion to ruminate on the question of the immunity of a serving head of state. In the Bashir case(ii) on an application for warrants of arrest against the current President of Sudan, the court stated that the “current position of Omar Al Bashir as Head of a state which is not a party to the Statute, has no effect on the Court’s jurisdiction over the present case…(since) one of the core goals of the Statute is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole which, must not go unpunished”(iii) . Thus, President Bashir became the first sitting head of state to face criminal charges in an international court.
Whereas the court’s reading of the law in the Bashir decision seems prima facie correct there was a lost opportunity to provide further guidance on an otherwise still grey area. If a head of state is indicted, for example, what privileges is he entitled to during the trial? Surely the individual who is the personification of an independent sovereign state should not have the same treatment as a common criminal. It would make sense, for example, to allow the head of state to forego all but very necessary appearances in court in light of his/her often punishing work schedule and, more importantly, so as to ensure that the lives of the nation are not held in suspense for years as the trial proceeds. It would also seem appropriate to allow the head of state to waive, if s/he chooses, any personal appearances in court so as not to embarrass the state concerned.
I also submit that the supposed removal of the immunity of heads of states is not without exceptions. Article 98 of the Rome statute for example provides as follows:
“1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that
third State for the waiver of the immunity.

2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender”

If therefore, for example, the government of Sudan has a bilateral agreement with say the government of Malaysia where each country agrees not to release the other country’s citizens to the ICC then Bashir’s immunity would prevail whenever he visits Malaysia. A warrant of arrest to all and sundry, such as the one issued by the Bashir court is therefore questionable.
If the immunity of heads of states is taken away then how, pray tell, do we deal with the other treaties that provide protection to them? What of customary international law that provides that heads of states are “untouchable”? The Vienna Convention on Diplomatic Relations 1961 for example, provides that “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”(iv) . The rationale for this is simple: the diplomat represents the sending State. The principle of sovereign equality of States would therefore not countenance a situation where the host state arrests or charges the diplomat. Similarly, what applies for the diplomat would apply to the head of state. It would be a legal misnomer for the diplomat to be protected in order to preserve the “purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security, and the promotion of friendly relations among nations”(v) while not affording the same level of protection to the heads of state. If, as has been decided, a host state cannot arrest or charge diplomats or heads of states in the national courts (vi), they should also not be able to arrest them at all (vii). The principle of sovereign equality of states is applicable at all times. Since there is no “international police force” any State that attempts to arrest a sitting head of state would be interfering with a cardinal principle of international law. Evidently therefore “the exercise of jurisdiction of international criminal courts can have serious consequences for the sovereign equality of states and the intercourse of international relations…just like the exercise of jurisdiction by domestic courts over foreign State officials, the ICC’s exercise of jurisdiction in such cases can engender severe repercussions for the fabric of inter-state relations. The exercise of jurisdiction by, the Court will affect, and be affected by, the same considerations of State sovereignty that inform the doctrine of head of state immunity and its application before domestic courts”(viii)

Lastly the practicality of removing the immunity of a sitting head of state is in doubt. Intricate relationships among states cannot allow this. With the knowledge of the repercussions of any attempt to arrest any sitting head of state, nay any senior government official, who, pray tell, would bell the cat?
_________________________________________________________________________(i) General Assembly Resolution, Affirmation of the Principles of International Law Recognized by the Charter of the Nurnberg Tribunal 95(I), 11 December 1946.

(ii) In the Case of the Prosecutor V. Omar Hassan Ahmad Al Bashir (“Omar Al Bashir”)- Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05-01/09

(iii) Ibid para. 41-42

(iv) Article 29

(v) Preamble to the Convention

(vi) Heads of States immunity from the jurisdiction of national jurisdiction has been affirmed by the ICJ in Certain Questions of Mutual Judicial Assistance in Criminal Matters (Djibouti v France). For more see Immunities of State Officials, International Crimes, and Foreign Domestic Courts by Dapo Akande and Sangeeta Shah, EJIL (2010), Vol. 21 No. 4, 815–852- http://www.ejil.org/pdfs/21/4/2115.pdf

(vii) Admittedly, in the case of Prosecutor v Charles Ghankay Taylor, Case Number SCSL-2003-01-I, Decision on Immunity from Jurisdiction, 31 May 2004 the court held that “the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court.” But, since Mr Taylor was no longer serving as a head of state at the time, the considerations were different.

(viii) The Survival of Head of State Immunity at the International Criminal Court, Wardle, Phillip, Australian International Law Journal, Vol. 18

The ‘War’ against Terrorism: Time now to Change our Paradigm

By Ronald Rogo (rogo.ronald@gmail.com)


In October 2011Operation Linda Nchi (Kiswahili for “Protect the Country”) was launched by the Kenya Defence Forces (KDF). Operation Linda Nchi was the code name for the military incursion into southern Somalia. The ostensible goal of the military adventures was to crash and hopefully eliminate the threat posed by the Al Shabaab, a terrorist organization operating in Somalia and with reported links to the Al Qaeda terror group. The immediate cause of this unusual turn of events[1] was the kidnapping of two Spanish aid workers working with the Médecins Sans Frontières, an international humanitarian organization, from the Dadaab refugee camp in Northern Kenya. It was alleged that this kidnapping was planned and executed by the Al Shabaab. Although the military incursion in response to the kidnappings did not have an exit date it was apparent from the various press statements by the KDF spokesperson that their immediate goal was to capture the port town of Kismayu. With this it was hoped that the Al Shabaab’s main source of funds and supplies would be cut off and the organization would be crippled. Incidentally, with this military incursion, Kenya joined a growing list of countries that have used the war against terrorism as justification for waging war outside their borders[2].

The initial reports from the government of Kenya were that the incursion was made at the invitation of the Transitional Federal Government of Somalia (TFG)[3]. However, subsequent reports brought into doubt whether there was active, or even passive, concurrence of the TFG as initially reported and the Kenyan government was forced to engage in hurried face saving diplomatic overdrive measures. Later, the KDF operation was merged with the African Union operation. Financial and material support was also obtained from the United States of America and the European Union among others.

This article will analyze the legal basis for this “war” against terrorism initially started by the KDF. The main thrust of the article is that the war paradigm cannot be used as justification for a “war” against terrorism as it does not fit into the many legal categories of war. Instead, nations need to come up with another perspective when confronting terrorism that will both be tenable and legally justifiable. Operation Linda Nchi will be used as the case study. The incursion of Kenya into Somalia will be the case study.

The Law of Wars

International humanitarian law (IHL) is the branch of law that governs and guides the relations between states that are in a state of war. It is more commonly described as the law of war. As a result, IHL not only stipulates when nations can justifiably go to war (jus ad bellum) but it also governs the conduct of the parties to the conflict when the state of conflict continues (jus in bello). For example, IHL states what types of targets are justifiable and also the amount and type of force that can be used by the parties in order to disarm the adversary. In this regard, the Geneva Conventions[4], to which Kenya is a signatory, are almost universally accepted as the source of these regulations. The Hague Convention is also recognized as a source of IHL, albeit to a smaller extent.

What “War” Against Terrorists ?

It is difficult to acceptably define the term war. Instead, the legal equivalent term of “armed conflict” is usually used in most legal texts. An armed conflict is seen to arise whenever there is “any difference arising between two States and leading to the intervention of members of the armed forces”. This definition presupposes that there are two sides to the conflict who engage in arms in order to resolve their conflict. There is usually a state of armed conflict between two parties. In addition, the traditional view has been that war is generally an international armed conflict that takes place between two nation states, each trying to assert its will on the other. However, as we shall see later, with the increase in the number and intensity of civil wars there has been recognition that there could be a non international armed conflict that occurs between one group and the governing entity.

Based on the above it is doubtful whether one could legally engage in an armed conflict with terrorists. Whereas it is correct that the armed forces of a particular state could be deployed to hunt out, capture and kill terrorists, such as the KDF has done in Somalia, the terrorists do not, in turn, have an armed force that could then result in an armed conflict. In reality any “war” against terrorists does not have the typical ingredients of a battlefield clash; be it in the air, on the land or over the waters. Since terrorists engage in their criminal activities under the cover of ordinary daily occurrences, it is unrealistic to expect them to engage directly with a country’s armed forces. Instead, depending on the particular modus operandi of the particular terrorist organization one would expect that they would attempt to mingle with innocent civilians.

Under IHL the “members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities”[5]. As combatants, the members of any armed forces can therefore be legitimately targeted by the enemy and either be killed or disarmed. This right includes the right to target and kill them even when they are not aware that they are being targeted, so long as the state of warfare continues and so long as the all the other precautionary measures have been considered[6]. However, in relation to anyone who is not a member of the armed forces of a Party remains a civilian and ought therefore not to be targeted in a state of war. Consequently, since the members of the Al Shabaab are not members of the armed forces of Somalia (or do not even pretend to represent the forces of Somalia), they will always, under the prism of law, be seen as civilians. The only time they can be legitimately targeted is when they directly engage in hostilities and therefore lose the cover of protection of the law. Thus any killings, even in a supposed state of warfare, are justifiable on condition that one can prove that the terrorists were directly participating in hostilities during the state of armed conflict.

In addition it is difficult to see how the Kenyan “war” against terrorism fits into any of the currently recognized categories of armed conflicts. These categories are international armed conflicts or non international armed conflicts. Let me analyze these further.

(i) International Armed Conflicts

Common Article 2(1) of the 1949 Geneva Conventions is the one that is used to guide the conduct of international armed conflicts. The Article provides as follows:

“the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.

While there is no general legal definition for an “international armed conflict” the International Criminal Court (ICC) ruled in the Lubanga case that an armed conflict is of an international character if “it takes place between two or more States”. The court further held that an international armed conflict also “this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance.”[7] Again, the ICC in the Bemba decision, held that “an international armed conflict exists in case of armed hostilities between States through their respective armed forces or other actors acting on behalf of the State”[8].

Concerning the concept of international armed conflict, the International Committee of the Red Cross (ICRC) commentary on Common Article 2 of the 1949 Geneva Conventions adds:

Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to the human person as such is not measured by the number of victims[9].

Based on the above it is impossible to characterize the KDF’s invasion of Somalia as an international armed conflict. This is because the two protagonists are not two states, rather a state (KDF) on one hand and a terrorist group (Al Shabaab) on the other hand.

(ii) Non-international Armed Conflict

This categorization was included in recognition of the reality that increasingly more conflicts occur and more deaths occur by reason of conflicts within the nation’s borders rather than by cross border conflicts. Thus according to Common Article 3, the armed conflict not of an international character must occur within the territory of the State[10]. The Additional Protocol II[11], (hereinafter “Additional Protocol II”) in supplementing and further expanding the Common Article 3 also provides as follows:

This Protocol […] shall apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

In order for an internal conflict to be qualified as a non international armed conflict and therefore to be covered by IHL there are certain necessary ingredients that must be met. The main one is that the threshold of the conflict must exceed that of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

Article 3 common to the Geneva Conventions of 1949 provides that “this Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts”. In applying this provision the ICTY Appeals Chamber decision in the Tadic case held as follows:

“an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there[12]

On the question as to whether a group qualifies as an organized armed group the Akayesu decision held that “[t]he term ‘armed conflict’ in itself suggests the existence of hostilities between armed forces organized to a greater or lesser extent. This consequently rules out situations of internal disturbances and tensions”. Further in the Lubanga decision, while setting out the characteristics of a non international armed conflict the court held that one should consider “the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement”[13]

However, there are still plenty of difficulties with such an assessment in relation to the KDF military adventure. Firstly, in order for a conflict to be characterized as a non international armed conflict, it must “take place in the territory of a High Contracting Party”[14]. This means that the theatre of the conflict should have been in Kenya, not Somalia. While the TFG could make the argument that when it combats Al Shabaab it is engaging in a non international armed conflict, the KDF cannot. Again, it was important to show that the Al Shabaab is “under responsible command, (and that it) exercise(s) such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol[15]. Significantly, the KDF operation cannot meet the requirements of a non international armed conflict on this score too. Apart from repeated isolated attacks in Kenya it cannot be said that the Al Shabaab controlled a part (or any part of Kenya) of Kenya as at the time of the invasion. Further, the KDF has not engaged militarily with any Al Shabaab terrorist groups within Kenya. Lastly, the law requires the military operations of the armed group to be “sustained and concerted”. Although the Al Shabaab has conducted raids on Kenyan soil, it would be a stretch to characterize them as either sustained or concerted.


From the above, it is evident that the use of a war paradigm when describing the invasion in Somalia is tenuous. There is therefore need to rethink the label used. It has been suggested before that any attack by terrorist groups ought to be considered as criminal activities that require police response-even militarized police response-rather than acts of war that require full scale utilization of a nation’s armed forces. In the American case of Holiday Inns, Inc. v. Aetna Ins. Co.[16], the court stated that “The international law definition of war refers to and includes only hostilities carried on by entities that constitute governments at least de facto in character”. Stacie Gorman also stated as follows:

“terrorists are criminals, and not soldiers of war… The practice of trying terrorists in a court of law suggests that the United States has, in the past, recognized that it is limited in its ability to declare war against terrorist groups”[17]

It is my view there was no armed conflict between the KDF and the Al Shabaab. Although it is correct that the Al Shabaab leadership leadership had declared war upon the nation of Kenya and the KDF had done the same in relation to the Al Shabaab these declarations, by themselves, did not mean that a state of armed conflict existed under IHL. Rhetoric does not give rise to a state of armed conflict. Conversely, the lack of any war declarations does not, ipso facto, mean that there is no armed conflict already in existence. It is therefore important for more police action-rather than military activity-to be involved in this “war” against terrorists in the region. The former is not only more efficient as a tool but also legally congruent.

[1]The Kenyan Defence Forces is, by common accord of military observers, the most inexperienced in the region. In a region that is largely known for its perennial conflicts and instability, the KDF is probably the only army in the region that has not engaged in active cross border warfare. Even highly provocative actions such as Uganda’s incursion into Kenyan borders in the Migingo Islands on Lake Victoria, have had mild responses from the Commander in Chief. Further, while neighboring states such as Ethiopia and Uganda have shown an appetite to engage the Al Shabaab in military warfare, the Kenyan government has been reluctant to directly follow this path. Hence, unsurprisingly, the extended disbelief and cynical views in the region when Operation Linda Nchi was launched by the KDF

[2] The United States of America is known for its “war” against terrorism when it invaded Afghanistan in order to rid the country of Al Qaeda elements soon after the September 11 bombings on the World Trade Center in New York. See President Bush’s address to a joint session of Congress on 20th September 2001 where he stated that “Our war on terror begins with Al Qaida, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped, and defeated” (available at http://middleeast.about.com/od/usmideastpolicy/a/bush-war-on-terror-speech.htm-).

[3] See press statement by the Ministry of Foreign Affairs of Kenya.

[4] This consists of four treaties and two protocols dealing with the treatment of victims of war. These are the First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864, the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906, the Third Geneva Convention relative to the Treatment of Prisoners of War, 1929 and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949. It also includes the Additional Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts and Additional Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts.

[5] Article 43(2) of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of victims of International Armed conflicts (Protocol I), 8 June 1977 (hereafter referred in the text as AP I)

[6] These precautions include only targeting combatants and military objectives, not causing superfluous and unnecessary injury, taking into account all precautionary measures

[7] Pre-Trial Chamber I, Prosecutor vs Lubanga, ICC-01/04-01/06-803-ten, para. 209

[8] Pre-Trial Chamber II, Prosecutor vs Bemba, ICC-01/05-01/08, 15 June 2009, para.223

[9] J. Pictet, (ed.), ICRC Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, (ICRC, 1958), p.20. The convention mentioned is further referred to as the “Fourth Geneva Convention”, see UNTS, vol. 75, p.287

[10] The Article reads as follows: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (…)”.

[11] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977

[12] ICTY, Prosecutor v Tadic, Case No. IT-94-1, “Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction”, 2 October 1995, para.70.

[13] Trial Chamber II, Prosecutor vs Lubanga, ICC-01/04-01/06 Date: 15 June 20009, para. 536

[14] Article 1 of AP II

[15] Ibid

[16] 571 F. Supp. 1460, 1461 (S.D.N.Y. 1983)

[17] 20 In the Wake of Tragedy: The Citizens Cry Out for War, but Can the United States Legally Declare War on Terrorism?, 21 Penn St. Int’l L. Rev. 669 2002-2003

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)