Russia’s Piracy Charges Against Greenpeace Groundless and Illegal

Russia has seized a Dutch-flagged Greenpeace vessel in international waters, and plans to charge the crew with piracy. The environmentalists had attempted to unfurl a protest banner on a Russian Arctic oil platform. Russian commandos raided the Arctic Dawn and towed it to port.

The unusual piracy charges may well be inspired by a Ninth Circuit decision holding the Sea Shepherd’s “Whale Wars” against the Japanese whaling fleet could constitute piracy under the Alien Tort Statute, as OpinioJuris notes. I agreed with the Ninth Circuit in that case, against much protest. The question was whether piracy requires a motive to steal, and the Ninth Circuit held it does not. But the present matter is entirely different. Here it is Russia’s actions that violate international law.

The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).

First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).

Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.

Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106.

One wonders whether Russia’s growing status as a power to be reckoned with has in part encouraged this kind of bullying. Will the Netherlands demand the release of the vessel? Bring the matter before the Law of the Sea Tribunal?

Ironically, Russia has failed to prosecute any of the actual (Somali) pirates captured by its navy, though some of them have met suspicious deaths.

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