Somalia 10 Febraury 2009 Waagacusub Media

By Eugene Kontorovich

The extraordinary growth in piracy off the coast of Somalia in recent months has led to a multipronged international response. Several nations have sent naval assets to patrol the Gulf of Aden in an effort to protect international commercial shipping. The United Nations Security Council has, under its Chapter VII powers to address threats to international peace and security, passed a series of resolutions that give these forces unprecedented legal authority to pursue pirates. While the traditional definition of piracy under international law restricts military responses by outside powers to those carried out on the high seas, the 2008 Security Council resolutions authorize the use of military force within sovereign Somali waters and territory. Despite this authorization of expanded powers to interdict and detain pirates at sea, states have expressed frustration at the limited available options for prosecuting captured pirates. Thus Britain has entered into an agreement with Kenya to permit sea robbers captured by the Royal Navy to be tried in Kenyan courts. All these developments are innovative legal responses to a modern epidemic of the oldest recognized international crime.

Background

The international crime of piracy, like the slave trade, was believed to have largely disappeared in modern times, or at least to have fallen to levels that would not demand international attention. Contrary to that belief, for the past several years, piracy has become endemic off the coast of Somalia, which has not had a government capable of broadly asserting its authority over the country since 1991. In the past year alone, attacks on international shipping in the Gulf of Aden increased by 200% over 2007. But the surge in sea robbery over the past six months is unprecedented, and perhaps the most significant eruption of such criminal activity in nearly two hundred years.

The problem is exacerbated by geography. All vessels transiting the Suez Canal must pass through the narrow straight between the Horn of Africa and the Arabian Peninsula, where cargo vessels with unarmed crews become easy prey. Pirates typically hijack a vessel with the goal to ransom it and its crew back to the owners, though sometimes pirates take the vessel to shore to sell the cargo. A single seizure can earn each pirate $150,000. (In Somalia, per capita GDP is $600 and male life expectancy is around 47 years.)[1] Currently hundreds of crewmembers from many different countries remain in captivity pending ransom negotiations. In the past year, the pirates have become busier and bolder. Pirates have attacked a vessel even further from the coast, and made some spectacular seizures, including a freighter loaded with Saudi oil, a ship carrying Ukrainian tanks bound for Kenya, and most tragically, several ships laden with United Nations relief supplies for Somalia. The pirates make no discrimination among vessels. Anything is fair game. Experts predict to see even more attacks in 2009 as the recent successes inspire others.

International Patrols

The unprecedented upsurge in piracy has prompted unprecedented international naval cooperation. A still-expanding coalition has been patrolling the Gulf of Aden with the navies of the United States, Great Britain, France and India playing leading roles. This coalition now includes the first-ever European Union naval force and China's first naval deployment outside of the South China Sea region. As of mid-January, this flotilla of ships from more than twenty countries is being coordinated by the United States. The increased military presence has successfully prevented or interrupted numerous attempted piracies, and members of the coalition have on several occasions exchanged fire with the Somalis. Yet thus far the role of the naval force has been to ward off pirates, rather than to pursue or apprehend them, which may not be sufficient to deter piracy motivated by outsized financial gains. Moreover, the deployment of a naval contingent is an expensive undertaking, particularly relative to the costs of ransom.

Security Council Enforcement Action under Chapter VII

In 2008, the United Nations Security Council passed five separate resolutions dealing with Somali piracy -- more resolutions than on any other subject last year.[2] Each of these was passed pursuant to Chapter VII of the UN Charter, under which the Council may authorize the use of military force against threats to international security. These resolutions have bolstered the authority of the multinational armada by expanding the authority of the navies beyond acts permitted under the customary international law of piracy. Absent Security Council authority to use force, international law permits nations to act against foreign piracy only on the high seas.[3] In the Gulf of Aden, where international shipping must pass through a narrow corridor, pirates are able to launch attacks in international waters and then quickly return to Somali territorial waters. The Council responded to this problem on June 2 by passing Resolution 1816, which authorizes nations to take action against pirates even in sovereign Somali waters.[4] That resolution noted that it was passed with the consent of the government of Somalia "which lacks the capacity to interdict pirates or patrol and secure its territorial waters."[5]

On December 16, 2008, the Council passed an even broader resolution, drafted and promoted by the United States (in the last weeks of the Bush administration) extending the authorization of military force to land-based operations in Somalia mainland.[6] For a one-year period, Resolution 1851 authorizes nations to "undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea."[7] Concerns raised by other Council members led the U.S. to withdraw draft language referring to operations in Somali "airspace," though the U.S. argues that the effect of the resolution remains the same, and that use of Somali airspace is permitted.[8]

Authorizing armed action against pirates in sovereign territory is an unprecedented measure by the Security Council. Because the resolutions permit responses beyond those permitted under customary international law they caused some apprehension on the part of states with a history of piracy problems, fearing the resolutions may set a precedent eroding national territorial sovereignty. The text accompanying the resolutions and statements made by Council members stressed that the resolutions applied solely to the Somali situation, and would not establish any precedent of customary international law. Indeed, the measures were sought and welcomed by the transitional Somali government, which is too weak to deal with the piracy problem itself.

Moreover, the resolutions require that any action in Somali territory be approved by that nation's provisional government and comport with international humanitarian law. The latter condition may greatly limit the scope of possible operations under the resolution. Pirates are not combatants, but rather civilians. Under international humanitarian law civilians may not be specifically targeted except in immediate self-defense.[9] United States military officials have already warned that any action against the pirates on land will likely result in civilian deaths. Still, Resolution 1851 clearly broadens the scope of permissible "hot pursuit," allowing pirates to be chased from the high seas into Somali waters and farther onto dry land.[10]

Thus it is not surprising that the authority given by these resolutions has apparently gone largely if not entirely unutilized, with military action against pirates taking place in international waters and confined to small, reportedly defensive incidents. Indeed, the most significant exception, an April 2008 raid by French commandos on pirates holding hostages on the mainland, preceded the first Chapter VII authorization. It also appears to have been a one-off mission, in response to the capture of a French luxury yacht and its passengers.[11]

Jurisdiction to Try Captured Pirates

Another question raised by the resolutions is whether pirates captured in Somali territory would be amenable to universal jurisdiction. Piracy is the original universal jurisdiction crime.[12] The doctrine of universal jurisdiction allows any nation to try certain offenders who have committed international crimes, even if the crime, the defendant and the victims have no nexus with the state carrying out the prosecution. For hundreds of years the doctrine applied exclusively to piracy. In recent decades, universal jurisdiction has been applied by national courts to prosecute cases of war crimes, crimes against humanity and torture. While its original application to cases of piracy appeared to have fallen into disuse, now universal jurisdiction has the potential to come full circle to help address the modern piracy epidemic.

However, in practice, the nations patrolling the Gulf of Aden have chosen not to prosecute pirates because of the anticipated difficulty and expense. What to do with apprehended pirates has become the central legal question of the current anti-piracy campaign. The dominant approach has been to avoid capturing pirates in the first place, or, if captured, releasing the pirates without charging them with a crime. Returning pirates to Somalia for trial has generally not been considered an option both because of the lack of a functioning government and the probability that the accused would be subject to unfair trials and cruel treatment.[13] Some European governments have expressed concern that the latter problem presents a conflict with a sending state's obligation of non-refoulement under various international treaties, which prohibit sending people to countries where they will likely be abused.[14] France, one of the more active nations in the piracy campaign, regularly resorts to repatriation of pirates to Somalia.[15]

Nations have called for new venues or possibilities for prosecuting the pirates, including an international tribunal or domestic courts in other countries in the region.[16] Britain is pioneering the latter solution. In December 2008, Britain signed a memorandum of understanding with Kenya formalizing the arrangement whereby captured pirates will be turned over for trial, and handed over the first group of captured pirates for prosecution.[17] The United States was the first to experiment with this arrangement, rendering a group of pirates to the Kenyan government in a carefully controlled test case in 2006. While those pirates were convicted and the trial went off without major complications, it did not turn into a regular procedure. Great Britain and other patrolling nations are also discussing the possibility of other nearby states hosting piracy prosecutions.[18]

The legality of such transfers from outside capturing states to third states is thrown into doubt by the piracy provisions of the Third United Nations Convention on the Law of the Sea (UNCLOS), a comprehensive multilateral treaty often described as the "constitution of the oceans." The treaty codifies the long-standing customary prohibition on piracy.[19] UNCLOS article 105, codifying universal jurisdiction in cases of piracy, provides that "every State may seize a pirate ship" on the high seas, but that the prosecution should be by "the courts of the state which carried out the seizure."[20] The drafting history reveals that this provision was intended to preclude transfers to third-party states.[21] No court or tribunal has yet ruled on the effect of UNCLOS Article 105, but it may emerge as an issue in the case of those British-captured pirates on trial in Kenya.[22]

Because international law defines piracy as an act taking place on the high seas, the increased authority conferred on outside states to take military action may not translate into a coextensive authority to prosecute. However, attacks on vessels are also punishable under the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA).[23] The SUA Convention is not limited to acts on the high seas,[24] and arguably extends jurisdiction to any nation capturing the offenders.[25] However, invoking SUA would also raise many questions, as it has only been used as a basis for jurisdiction in one reported case.[26] Somalia has not ratified the treaty, which might create additional difficulties. However, the recent piracy problems have renewed international interest in using the dormant treaty.[27]

Piracy Law Enforcement Going Forward

The international cooperation that Somali piracy has spawned is unusual and impressive. Yet while nations have been willing to shoulder serious enforcement costs, they have shied away from accepting judicial burdens. It is unlikely that piracy can be stopped if pirates are not prosecuted and punished. In the absence of a comprehensive international response that includes incapacitation of pirates, shippers are increasingly likely to turn to private security companies and other do-it-yourself solutions. Because the legal remedies under discussion -- whether through the SUA or third-party courts such as in Kenya -- raise numerous novel questions of international law. The most straightforward answer -- trial in the courts of the capturing nation -- is firmly rooted in customary and conventional international law. To date, however, this approach has not been treated as a serious option.

About the Author

Eugene Kontorovich, an ASIL Member, is an Associate Professor at Northwestern University Law School, where he teaches international and constitutional law.

Endnotes

[1] CIA World Factbook, Somalia, available at https://www.cia.gov/library/publications/the-world-factbook/geos/so.html .

[2] S.C. Res. 1816 (June 2, 2008), S.C. Res. 1838 (Oct. 7, 2008), S.C. Res. 1844 (Nov. 20, 2008), S.C. Res. 1846 (Dec. 2, 2008), and S.C. Res. 1851 (Dec. 16, 2008).

[3] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, Art. 101(a)(1) (defining acts as piracy only when committed on high seas), Art. 105 (authorizing seizure of pirate ship only on "high seas").

[4] S.C. Res. 1816 authorized such incursions into sovereign waters for a six month period; this was subsequently extended for another year.

[5] Id.

[6] Colum Lynch, U.N. Authorizes Land, Air Attacks on Somali Pirates, Washington Post A14 (Dec. 17, 2008).

[7] S.C. 1851 Art. 6.

[8] Agence France Press, US says piracy resolution allows for air strikes in Somalia *Dec. 17, 2008) available at http://news.yahoo.com/s/afp/20081217/pl_afp/somaliapiracyunus.

[9] See Geneva Conventions on the Laws of War, Common Article 3(1) (1949); 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) Art. 13 (banning attacks on civilians); see also, International Covenant on Civil and Political Rights Art. 6(1)-(2) (1976) (prohibiting extrajudicial killing). While the Geneva Convention does not by its terms apply to conflicts with pirates on the high seas, the minimal obligations of Common Art. 3 are widely thought to be generally applicable to all uses of military force as a matter of customary law.

[10] Compare, United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, Art. 111.

[11] BBC News, France raid ship after crew freed, April 12, 2008, available at http://news.bbc.co.uk/2/hi/africa/7342292.stm.

[12] See Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, 45 Harv. J. Int'l. L. 183 (2004).

[13] The British Foreign Office has apparently instructed the Royal Navy to not turn Pirates over Somalia authorities because of concerns about human rights abuses, but at the same time not to take them on board at all because of concerns that they could claim asylum under European human rights laws. See http://www.timesonline.co.uk/tol/news/uk/article3736239.ece.

[14] See U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3(1) ("No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."). See also Fiona de Londras, Saadi v Italy: European Court of Human Rights Reasserts the Absolute Prohibition on Refoulement in Terrorism Extradition Cases, ASIL Insights (May 13, 2008), avaialble at http://www.asil.org/insights080513.cfm#_ednref3.

[15] See http://www.npr.org/templates/story/story.php?storyId=99036159; http://www.lloydslist.com/ll/news/french-navy-captures-19-somali-pirates/20017603853.htm .

[16] See Statement of Danish Ambassador on S.C. Res. 1851; Statement of Sec. Rice on S.C. Res. 1851, both available at http://www.un.org/News/Press/docs/2008/sc9541.doc.htm.

[17] Republic of Kenya, Ministry of Foreign Affairs, Kenya And The United Kingdom Sign A Memorandum Of Understanding On Piracy Along The Coast Of Somalia, available at http://www.mfa.go.ke/mfacms/index.php?option=com_content&task=view&id=305&Itemid=62 .

[18] Barney Jopson, Kenya signs deal to prosecute Somali pirates, Dec. 12, 2008, available at http://www.ft.com/cms/s/0/9b63b8e6-c7c4-11dd-b611-000077b07658.html?nclick_check=1 .

[19] UNCLOS Art. 101.

[20] Id. at Art. 105. (Italics added)

[21] See Report of the International Law Commission pg. 283, Commentary of Art. 43 (emphasis added) ("This article gives any State the right to seize pirate ships. . . and to have them adjudicated upon by its courts. This right cannot be exercised at a place under the jurisdiction of another State.")

[22] The U.S. transfer in 2006 was thought to be the first of its kind. While the U.S. is not party to the third and most recent version of UNCLOS, it ratified an earlier incarnation with identical piracy provisions. See Convention on the Territorial Sea and Contiguous Zone, April 29, 1958, 516 U.N.T.S 205.

[23] 27 I.L.M. 672 (March 10, 1988)

[24] See Art. 4.

[25] See id., Art. 6(4).

[26] See United States v. Shi, 525 F.3d 709, 721 (9th Cir. 2008); Eugene Kontorovich, International Decisions -- United States v. Shi, 525 F.3d 709, 103 Am. J. Int'l. L. # 2 (forthcoming, April 2009).

[27] See, e.g., S.C. Res. 1851 Art. 5.

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