Tuesday, August 31, 2010

Martijn Keeman on the Piracy Panel

In this blog post, Martijn Keeman (University of Amsterdam) looks at the panel discussions on the legal grounds for the fight against piracy as well as the argument (see link)  that Somali pirates are eco warriors/freedom fighters:



        Too high a Wave? Legal Grounds for the Fight against Piracy



The recent fight against the ‘17th century crime’ of piracy has set much in motion. It has united the United Nations P5 in operations for the first time since WWII, brought China's warships outside the Pacific for the first time in 600 years, and led to the establishment of the EU’s first naval operation, Atalanta. Next to these military operations, a string of UNSC Resolutions such as 1816 (2008) have been drafted providing Chapter VII power for combating piracy. In such a climate of co-operation and common grounds, it must be doable to reach a consensus on the legal grounds for the fight against piracy.


The ILA 2010 conference panel on the topic was composed of an interesting mix of academics and practitioners. Dr van Ginkel first set out the political and legal framework. She noted that in general, a lot of the modern Somali pirates are well-organized and well-equipped. Mr Kioko then made some interesting remarks on the view of the African Union (AU) on the problem.

On the question of where these pirates belonged in terms of prosecution, the AU had no problem with them being tried outside the continent. Although there have been memoranda of understanding signed by Western nations with countries such as Kenya and the Seychelles, for the transfer of pirates to the latter countries for prosecution, and there is interest on the part of  countries such as Tanzania in entering into such agreements, the AU takes a pragmatic stance on the actual place of prosecution.

In the course of the panel discussions, reference was made to the options of prosecution of pirates by national court chambers modelled after the Lockerbie tribunal or before a special regional or international tribunal (options currently being investigated pursuant to UNSC Res. 1918 (2010). The discussions highlighted the fact that the problem of a legal framework for dealing with piracy seems more a matter of expanding operational capacity than a need for more legal grounds for prosecution. Existing legal grounds for prosecution include the United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention) which already provide for jurisdiction over acts committed on the open sea. Additionally, the Transitional Federal Government of Somalia (TFG) has consented in many bilateral treaties to intervention in her coastal waters. Other legal grounds come from the UN Security Council acting under Chapter VII, which has authorised the taking of necessary measures in Somalia’s territorial waters (UNSC Res 1816, 2008) and on land (UNSC Res 1851, 2008), although these measures are to be taken pursuant to requests from the TFG.


Mr Kioko had additionally expressed regret over the payment of ransom money as without it, piracy (in its present form) would not exist or at least not be so widespread. The problem of profitable ransom protracting the situation was, he noted, an issue that was going to be discussed by the UN Monitoring Group on Somalia. It does not seem likely though that States would want to limit themselves or their private sectors in a legally binding way in their discretion to use any means for the protection of their citizens or assets.An MoU on ‘best practices’ to refrain from ransom seems, therefore, the highest attainable objective.

The final question in the session’s programme was “And how about their [the pirates'] arguments as freedom fighters?” None of the panellists took this question up. The only ones to come close to shedding light on it were, not surprisingly, the defence lawyers for the first Somali pirates tried in the Netherlands. The pirates had been tried under an old and dusty provision in Dutch law criminalising robbery on the open seas (this being one of the few international crimes for which the Netherlands has established universal jurisdiction without the requirement of a link with the Netherlands, such as the suspect being present on Dutch territory). Neither Mr Ausma nor Mr De Jong had used the term 'freedom fighter' to qualify their respective clients. Rather, they both submitted that their clients had acted out of despair. The cause of this despair was the prevailing situation of hunger and poverty in a failed state, exacerbated by toxic waste dumping and illegal overfishing done by foreign trawlers in Somali waters.

An appeal against conviction made on those grounds, if successful, would either excuse the perpetrator, or justify his act, with the same result of the perpetrator escaping punishment. The argument that the accused acted under force majeure was, however, basically dismissed by the Dutch court as it believed there were alternative means available to the accused for dealing with their situation (the Court, though, did not bother to specify what the alternatives were in Somalia). The Court found that the social condition of the pirates was no justification for their actions. It merely took those conditions into account when deciding on their punishment - as mitigating circumstances.

Now, regardless of whether or not a pirate is a poor fisherman trying to keep his head above water, one could argue that some other, less controversial personal defence that exculpates him from the crime might well be possible. However, the Dutch court’s dismissal of the defence of force majeure on factual grounds raises the question whether, as a matter of law, a ius cogens crime like piracy allows for a defence that justifies such an act in the first place, given the absolute character of the legal norm it seeks to protect. One can argue that in principle and in analogy to the impossibility of a State raising a defence, such as duress, to a ius cogens crime, a legal justification for piracy could never arise. Moreover, since a state can obviously never be held directly accountable for acts of piracy or robbery at sea given the private element of the crime, allowing justifications for this ius cogens crime would render the special protection it has been given under international law meaningless. More specifically, one could argue that the legal requirements for a successful plea of necessity, such as subsidiarity and proportionality, can never be satisfied; that consequently one cannot reasonably resort to piracy because it was ‘the lesser evil’.

Concerning the argument that Somali pirates are freedom fighters, the qualification of freedom fighter under international humanitarian law (IHL), whereby one can gain legitimacy for certain acts of violence, is evidently very different. However, taking hostages is explicitly excluded from the acts considered legitimate under IHL and is considered a war crime, also for freedom fighters and on the high seas. Let alone a random taking of hostages which does not occur in the context of an armed conflict and thus falls outside the terms of ‘parties to a conflict’ in IHL. Therefore even if Somali pirates could obtain a status as freedom fighters, arguendo, they still have to change their method of warfare or face trial. Nevertheless it is clear that labelling the Somali pirates as freedom fighters is a bridge too far for lots of obvious reasons. In that respect they stand a better chance trying to argue that they belong to Somalia’s naval forces, with all the legal and practical difficulties that entails.



In the end, Mr Ausma and Mr de Jong were quite sceptical about the so-called ‘victory’ the prosecution of Somali pirates is considered to be. In their view, if the situation does not change on the ground in Somalia, prosecution would not change it either. It is true that if the underlying root cause of anarchy is not cured, fighting its symptom of piracy would be as ineffective as the Dutch proverb of carrying buckets of water to the sea. And yet international investment in good governance and security in Somalia - whether directly or through the African Union Mission in Somalia (AMISOM) - is alarmingly dwarfed by the expenses put into the anti-piracy missions. Anti-piracy missions might provide a sense of purpose for states who were wondering what to do with their navies in the 21st century, but this is inadequate for an effective holistic approach and will lead to pyrrhic legal victories.

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