Tag Archives | piracy

Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30″ a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction [...]

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Belgium’s Remarkable Capture of Pirate Ringleader

Belgium has captured a senior Somali pirate kingpin in a remarkable operation. The leader of a pirate group, he had long been sought for hijacking a Belgian vessel in 2009. Now, undercover agents lured him and an associate to the Low Countries by pretending to be documentary film makers interested in making a movie about him.

The remarkable affair highlights some points about universal jurisdiction and pirate kingpins.

Belgium’s commendable efforts to catch those involved contrast highlights a big difference between universal and traditional jurisdiction: the bad guys have to be caught before being brought to justice, and no one wants to invest much effort in other people’s – or the “global community’s” bad guys.

Though there is a lot of talk about pirate kingpins, they almost never face prosecution, because catching them would generally require getting on the ground in Somalia. Indeed, this seems to be the biggest – and only – pirate boss yet captured.
The U.S. has caught and convicted one real pirate leader, responsible for a murderous attack on a U.S. yacht; he was apparently nabbed in Somalia by federal agents.

The Belgian case poses a fascinating contrast to a U.S. gambit to catch a pirate kingpin. Ali Mohamend Ali, whose case I’ve written about, was arrested while attending an education conference in North Carolina – he was an education ministry official (not a staged conference, a real one). But Ali wasn’t really a pirate, let alone a kingpin, just someone paid to negotiate the ransom. Two years after his arrest, his trial will begin in the D.C. Federal District Court, appropriately enough on Halloween, when lots of people get dressed up as pirates.

Ali himself is the subject of a documentary (in which I also appear) made before his legal troubles began; in the [...]

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Greenpeace & Russia – an International Pussy Riot

I blogged earlier about Russia’s illegal seizure of a Greenpeace vessel in international waters, and its laughable characterization of their acts as maritime piracy. The ship Arctic Sunrise had been boarded after an attempt to board or come alongside a Russian oil rig for some kind of non-violent protest. Subsequently, Vladimir Putin apparently poured cold water on potential piracy charges, leading some to think it would be a passing squall.

Instead, a Russian court has ordered all 30 crew members of varying nationalities jailed for two months pending an investigation. The ship also not been released, and the Netherlands, as the flag state, may file prompt release proceedings in the International Tribunal for the Law of the Sea.

The incident is a kind of international Pussy Riot. You may recall that Russia gave two-year jail sentences to members of that “feminist punk rock protest group” for some kind of raunchy, uninvited performance in a Russian Orthodox Church. (I am not entirely clear on the goals of the group or their methods.) While the sentence was widely decried, it does seem that Pussy Riot was engaged in a particularly provocative protest, that almost certainly took liberties with other people’s property. The legal action against them was not unreasonable – it was the nature and severity of the action that defied all proportion, and revealed a heavy-handed intolerance of protest.

Greenpeace is in a similar situation. They may have committed technical trespass, and certainly should not protest at finding themselves in court. But jail is another matter. There is one big difference: with Pussy Riot, Putin was bullying his own nationals, in his own capital. Now Russia is throwing its weight around against foreigners on a foreign-flagged vessel in international waters, which is not just thuggish, but a violation [...]

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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. [...]

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Kiobel and Academic Fallability

Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as entirely spurious. The conventional wisdom was very much on the side of universal jurisdiction over corporate human rights abuses. Indeed, such cases had been around for a few decades without much controversy over the universal jurisdiction aspect per se.

Most surprising about Kiobel is the Court’s unanimity. Everyone, including myself, predicted a decision closely divided on ideological lines. Yet ll nine justices seem entirely on board with ending multinational corporate suits. (While Justice Breyer’s concurrence would leave room for Filartiga-style suits where the defendant resides in the U.S., such cases against individuals have largely fallen out of favor with plaintiffs’ lawyers.) The misapprehension of the vote of course relates back to the merits. Many scholars thought the foreign cubed issue a conservative invention to roll back human rights litigation. That position is now hard to maintain. [...]

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Defining “High Seas Felonies” in Another Country

A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on [...]

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In Other Pirate News

A group of armed men attack a U.S. warship on the high seas. Piracy under international law? Yesterday, the U.S. District Court in Richmond convicted a group of Somalis for an attack on the U.S.S. Ashland (such incidents are not uncommon). Boy these guys were dumb – what were they thinking?

Of course, if Judge Kozinski’s piracy opinion were wrong, the prosecutors would actually have to prove what they were thinking as an element of the case. That is, attacking a warship is the kind of thing one would ordinarily due for political purposes, so unless one actually takes a purely subjective approach to “private ends” (which I think obviously and entirely unworkable), this prosecution would be difficult under the “private isn’t political” rule.

The defendants argued they were distressed mariners just trying to get the Ashland’s attention. They should have said they were Somali militants protesting the unfairness of global wealth distributions. (The Stolen Seas movie that features me also features Noam Chomsky putting the Somali pirates in some such a light.)

These guys were the ones whose case was originally thrown out by a district judge who read international law very narrowly as not covering attempts, before the Fourth Circuit reversed (citing me…).

Also yesterday, Nigerian pirates released some hostages. The Ashland case is really a throwback; Somali piracy is largley (at least until the sequester kicks in). However, a new and much more violent piracy problem has emerged in the Gulf of Guinea, involving attacks on oil industry there. Thus far the attackers have invariably been described as pirates by the the UN, IMO, and the world at large as far as I known.

Yet the Nigerian pirate attacks are an operation of MEND (Movement for the Emancipation of the Niger Delta), who has [...]

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“Private ends” in the Travaux Préparatoires of the Law of the Sea Treaty

A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates.

Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard Draft Convention of 1932. The ILC Commentary to the Law of Sea Treaty specifically endorses the latter, saying that “in general” it agrees with the Draft Convention (it does not provide such deference to the former.

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the
citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best [...]

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What the Definition of Piracy Means for UNCLOS & ATS

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from [...]

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Whale Wars Update: Ninth Circuit Calls Sea Shepherd Actions “Piracy”

Here is the opening of Judge Kozinski’s opinion, reversing a lower court ruling and issuing a preliminary injunction in an Alien Tort Statute suit against the Sea Shepherd’s attempts to interfere with Japanese whaling vessels on the high seas:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Is this right? Paging our very own Eugene Kontorovich, a leading authority on piracy law!  Over at Opinio Juris, Julian Ku and Kevin Jon Heller discuss the opinion.  Myself, I plan to re-watch South Park. [...]

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French Use of Force in Africa

No, not Mali. Rather, the Gulf of Aden. A French fishing trawler sank a Somali pirate mothership during an exchange of fire. Several of the alleged pirates were killed; expect lawsuits about the French use of excessive force. Of course, Somali pirate apologists like to say that they have been driven to crime by massive overfishing in Somali waters by European vessels, with Spain and France among the worst offenders. The overfishing is real, but the pirate motives aren’t. They are in it for the money. (H/T: my friends at Neptune.) [...]

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Pirates on Screen: My First Role

Somali pirates, and the broader contexts of state failure and the maritime economy, are the subject of the new documentary film “Stolen Seas.” It has just had its first U.S. release at Cinema Village in New York. The filmmaker quite adventurously spent significant time with Somali pirates on land and at sea, to good effect. He also less adventurously interviewed me. Hopefully it will get wider release and I’ll be able to see it for myself. [...]

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Evolving International Law and Defining Offenses

The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.

Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court [...]

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