One Solution to Piracy: Try Pirates in Kenya

by Julian Ku

Last week I posted this excellent essay by Professor Kontorovich of Northwestern Law arguing that the anti-piracy efforts are unlikely to succeed as currently constituted.  One problem I’ve noted is that there is no obvious place to try captured pirates from Somalia.  The U.S. Navy’s plan is to try pirates in nearby Kenya.  As this WSJ article suggests, this strategy is going to get its first real test. 

…International law makes piracy a crime, but nations have struggled to figure out where to send suspects and how to gather evidence for cases that occurred in international waters. In September, a Danish ship captured 10 alleged pirates, but ended up landing them back onshore in Somalia.Shortly before the first catch on Wednesday, the USS Vella Gulf commander, Capt. Mark Genung, said he was eager to capture the pirates and gather evidence for “an ironclad case.”

“The big holdup was finding someone who would prosecute international piracy,” said Coast Guard Lt. Greg Ponzi, an officer on the task force who usually pursues drug runners in U.S. waters.

Bogeta Ongeri, the spokesman for the Kenyan Ministry of State for Defense, said Kenya is eager to cooperate with other nations to combat piracy. But his country is wary of having its courts overwhelmed. “We have taken the lead, but that doesn’t mean all pirates will be tried in the Kenyan courts,” he said.

Kenya has agreed to take only a limited number of cases. Mr. Ongeri said he couldn’t comment on the recent arrests, but that the government would decide which cases to try in part based on where the alleged crimes took place. Kenya has provided the Navy with a checklist of evidence required to prosecute, U.S. officials said.

http://opiniojuris.org/2009/02/17/one-solution-to-piracy-try-pirates-in-kenya/

13 Responses

  1. I’m still not clear why this arrangement is not forbidden by the plain language of UNCLOS article 105, which codifies universal jurisdiction in cases of piracy. It 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.” (emphasis mine).

    I understand that this is a novel question, but I’m surprised not to have heard grumblings about U.S.-British-Kenyan flouting of a provision of international law clearly designed to protect detainees. I’m sure there is some formal way to reconcile the arrangement with international law (say the prosecution is for violating the SUA convention rather than for piracy) but its an argument that needs to be made.

  2. The United States is not a party to UNCLOS at this point, so even if Article 105 was fairly read to limit jurisdiction to the courts of the capturing nation, this would not be binding on the U.S.  I don’t believe there is any similar limitation in the customary international law rules governing piracy which is what the U.S. must rely upon.

    BUT in any event, I don’t think that it is a fair reading of Article 105 to say that UNCLOS limits trials to the capturing state.  I think the article is better read to say that it simply authorizes them.  Here’s the actual language of the treaty so OJ readers can judge for themselves:

    Article 105. Seizure of a pirate ship or aircraft
     On the high seas, or in any other place outside the jurisdiction of any State, every State may 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. 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.

    In the ordinary meaning of the terms, I think “may” is best considered to be permissive rather than mandatory, so I don’t see this as fairly construed to prohibit another state from exercising this authority.

    The U.S. captured a group of pirates in this region back in 2006 and transferred them to Kenya for trial and I’m unaware of any nation objecting to Kenyan jurisdiction.

  3. While the US has not ratified UNCLOS III, it is a party to the 1956 UNCLOS I, which contains an identical provision, so it is certainly bound. I agree that “may” is permissive in regard the capturing state — it need not prosecute. But no one else may. The plain language of Art. 105 is that the courts of the capturing state are giving adjudicative jurisdiction; no other state is given jurisdiction by that article.

    If this interpretation seems strange, consider the ILC’s reporter’s note:
    “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.” Report of the International Law Commission pg. 283, Commentary of Art. 43 (emphasis added).

    Again, I have no idea if this is a winner, but plausible, even non-textual arguments in favor of security detainees are usually considered worth making on moral grounds. I’m not being facetious, but suspected pirates have rights; they’re not chattels to be arbitraged down to the cheapest court system.

    The 2006 trials were the first experiment at this kind of thing. They generated little attention. I agree this question is novel. I’m only trying to raise a question. Which is probably useful since the pirates may not have great lawyers.

  4. This is indeed an interesting discussion.  I wonder whether we might simply apply the Lotus principle.  Unless the transfer (or exercise) of jurisdiction is prohibited by international law, is it not permitted?  Further, because the UNCLOS does not dictate the precise procedural requirements for the court, won’t any court that meets basic human rights standards suffice?

  5. Eugene, I haven’t studied the ILC report, but is the prohibition really as obvious as you portray it?  Article 43, you agree, is permissive with respect to the capturing state; no one else is given jurisdiction by that provision.   You add, though, that prosecuting a pirate seized by State A in the courts of State B is an affront to a prohibition in that article, and this was “clearly designed to protect detainees.”  This last part isn’t self-evident to me.

    The ILC report, in the part you quote, says that “This right cannot be exercised at a place under the jurisdiction of another State,” but the “right” is defined in the preceding sentence as “the right to seize pirate ships. . . and to have them adjudicated upon by its courts.”  Why isn’t this explicable as interposing the sovereign right of State B against the right of State A — so that State B’s status as a party to UNCLOS I doesn’t mean that it has pre-consented to State A seizing a pirate on its territory, and/or trying to conduct an adjudication there?  Because “the right” is integrated, we don’t even to try to make sense of the adjudication horn.  This is exactly how the text is framed — the right of “every state” is to be exercised only in places “outside the jurisdiction of any State”; this means that the the commentary adds next to nothing (which isn’t unprecedented), whereas you would have the commentary suddenly insinuate the interests of the pirate (which arguably makes it accomplish a bit much).  The upshot is that Kenya would be free to make up its own mind.  Implausible?

  6. In response to Ed -
    I don’t seen anything in UNCLOS that could lead one to think that in the absence of Art. 43, parties could try pirates in other states’ territories, let alone capture them in foreign territory. And that seems a strange thing to think it might do w/out an explicit statement.

    I certainly didn’t want to portray the prohibition as obvious. But certainly quite arguable, which raises the puzzle of why there seems to be no argument.  Especially surprising given how fun it is!

    Here is the commentary in full:
    “This article gives any State the right to seize pirate
    ships (and ships seized by pirates) and to have them adjudicated upon by its courts. This right cannot be exercised at a place under the jurisdiction of another State. The Commission did not think it necessary to go into details concerning the penalties to be imposed and the other measures to be taken by the courts.”

    The first sentence merely restates the article, the third sentence says nothing, and the second sentence is as I quoted.

    Even if “Cannot be exercised” refers to the right of the capturing state, it is still the case that the commentary only describes the right of prosecution as belonging to the capturing state. Nothing in UNCLOS allows for UJ by non-capturing states. Perhaps one can resort to general CIL principles, but then one will get into the difficult question of the extent to which the piracy provisions preempt preexisting CIL.

    Now that I think about it, the commentary might be read as meaning that one cannot create admiralty or prize courts in foreign countries, which was occasionally a point of contention between countries (ie France and U.S. in late 1790s). It would be a little weird for that to be the purpose of the article, since I don’t know (and my knowledge here is quite shallow) of this being any kind of problem in the late 19th or 20th century.

    Of course a middle possibility is that the text is unclear. This is the case with the two-ship rule, which the dratfting history strongly suggests Art. 101 was designed to codify; but a certain (in my opinion strained) reading of Art.101(a)(ii) would see it as extending UNCLOS to one-ship piracies, and while I disagree, several serious people read it that way.  Certainly in a criminal case involving a one-ship piracy, I would argue UJ is inappropriate because of UNCLOS, as I argue in a forthcoming International Decisions piece in AJIL on United States v. Shi,
    525 F.3d 709 (2008).

    So it is not out of the question that the jurisdictional provision says more than it was intended to, or the intent is unclear. In such situations, I think the instinct is to read the text in favor of people who will have state power applied against them. (Consider the Geneva Conventions.) Also, there is I believe a strong plain language presumption with treaties, and I don’t thinking banning this kind of arrangement would be an absurd result that rebuts this presumption. Obviously such arrangements have not been thought integral/essential to piracy prosecution, as they have never been used since 2006.

    Finally, an easy way around the rule is the procedure used for the Lockerbie bombing trial: extraterritoriality.

  7. Eugene, thanks for replying.  Based on what you’ve said, it strikes me that the more natural reading is the permissive one — creating a certain right in the capturing state (State A) under Article 43, but limiting the obligation of State B to accommodate that right within its territory (admiralty and prize courts were what I had in mind, but again, the sentence relating to “the right” is sufficiently explained in relation to the coupled right of seizure).  This leaves open the possibility that State B might acquiesce and found its jurisdiction on another basis, such as UJ.  Workarounds like Lockerbie would also work; the point is that Article 43 doesn’t provide a limit other than to the right of State A.

    I’m not sure I follow how the plain language presumption would apply, nor how often IL really emphasizes an interpretative principle — in the context of a treaty like the LOSC, not focused on humanitarian interests or individual rights — that favors opposing state power on behalf of individuals . . .  with peg legs and whatnot.

  8. Ed writes that Kenya’s basis for juris is UJ. Nothing in UNCLOS gives UJ to any but capturing states. Art. 43 IS the closest thing to a UJ provision, and it is not fully universal, in the sense we’ve been discussing.

    So state B’s UJ would come from general CIL? I thought UNCLOS was one of those treaties that “occupies the field” and might be thought as displacing all previous CIL (this is relevant to the one-ship/two-ship debate as well, with one-shippers favoring a resort to preexesting CIL). But I’ll defer to Ed’s expertise on such questions of treaty law…
    If CIL is not displaced except explicilty, we might recall that Oppenheim, who was cited quite favorably on his views on Piracy, recognized a limited right to attack pirates on the high seas, as well as to conduct summary shipboard proceedings when transporting them back for trial would be difficult, which is precisely the situation here.

    Finally, given that the prize system was largley dismantled by the Paris Declaration of 1856, I’m puzzled why there would be an entire sentence on the obscure question of extraterritorial prize courts.

  9. Response…

  10. Is “response . . .” a prompt to me, or a plea for someone else’s more learned intervention?  If the former, my only point was to indicate agreement with you that State B’s jurisdiction to conduct trials in its own right looks like it would have to come from outside Article 43; our only point of disagreement was whether Article 43 (via the commentary) limited the rights of any state other than State A.  Whether Kenya is thereby confined to a UJ basis, and whether UJ would be excluded because UNCLOS occupies the field, are matters that I haven’t particularly focused on, though I guess I’ve indicated my starting assumptions.

    P.S. As I parsed what you reprinted, “[t]his right”  refers not only to the right to conduct adjudication, but also to seizure — everything Article 43 authorizes.  If correct, that answers the puzzle you address in your final point: there was in fact no entire sentence devoted to prize or any other form of adjudication; it referred generally to the limits of the authority granted State A.

    P.P.S.  Thanks, as always, for your informative analysis.

  11. ["response" was simply me hitting the submit comment button by accident without having written anything]

    Thank you Ed for your probing analysis, this has been fun…

    And I think we’re almost done: prompted by your excellent comments, I may have come closer to figuring out the purpose of the provision, and it is very close to what Ed suggested. The previous article (42) provides that pirate vessels and vessels seized by pirates will not be considered to loose their nationality. The commentary explains:

    “Even though the rule under which a ship on the high seas is subject only to the authority of the flag State no longer applies, the ship keeps the nationality of the State in question, and, subject to the provisions of article 43 [the Article we've been discussing], that State can apply
    its law to the ship in the same way as to other ships flying
    its flag.”

    Thus Art. 43, read read in light of article 42 and its commentary, could be intended to prevent shipboard adjudication by third-party states on the pirate or pirated vessel — as now these ships are still within the jurisdiction of their flag state. Such shipboard jurisdiction seems a more likely possibility in modern times than the erection of a prize court in foreign territory.

    Still,  Art. 43′s odd language may prevent shipboard trials, but fails to create UJ (if that was what it was trying to do). I’m not inclined to agree with you that Art. 43. And certainly your reading that Art. 43 does not ban anyone’s jurisdiction is quite strong.

    Moral of the story: there is a lot more to UNCLOS than meets the eye?

  12. I again note that we appear to have come back around to the Lotus principle - a much maligned and far under-appreciated principle in many ways - in this case.  As treaty law, it is not possible for the UNCLOS to “occupy the field” so to speak until it comes to represent generally applicable CIL.  Even then, I am inclined to argue that it does not displace well-established CIL of universal jurisdiction unless it does so explicitly (rather than implicitly, as Eugene has argued), as it does with regard to the expansion of territorial waters.  Then again, my view on this point is no doubt tainted by my scholarship focus being in the area of international humanitarian law, and the Martens Clause in Hague Convention IV.

  13. This discussion raises interesting issues of how the rules of treaty interpretation apply to insufficiently detailed treaty provisions. Part of the general rule of interpretation requires terms to be interpreted in their context and in the light of the object and purpose of the treaty.
     
    The following very much truncates this step in interpretation. Article 94 of the 1982 UNCLOS (and the equivalent 1958 Geneva provision) requires the flag state to exercise jurisdiction effectively over ships flying its flag, the link of nationality being retained in the case of piracy unless lost according to the law of the flag state (Article 104). The rest of the codified law of the sea also shows concern to preserve the position of the flag state in legal matters concerning a ship on the high seas, exceptions being set out with varying extent of detail.
     
    This suggests the question: would Article 105 preclude a state which is holding pirates taken on the high seas from extraditing the individuals to the flag state if so requested? Leaving to one side the important issues of human rights and fair process (which may go more to the propriety of handing someone over rather than the jurisdiction of the requesting state), even the limited glimpse of the context above (without investigating other elements envisaged in the general rule) suggests a reading of Article 105 which views action on the high seas against pirates by another state’s agents as a permitted exception to the general exclusivity of flag state jurisdiction but not displacing that jurisdiction.
     
    If, therefore, the terms of Article 105 are correctly read to allow handing putative pirates to the flag state for trial and, on conviction, to punishment there, the provisions of that article do not limit the state arresting the individuals on the high seas to arranging trial in its courts, but rather allow that as just one possibility. Does it follow that transfer to a third state would be another possibility? Again truncating a lengthy application of the rules of interpretation, Article 100 (the duty of fullest cooperation by all states in repression of piracy) provides part of the context for interpreting Article 105 as permissive rather than exclusive, and as not barring transfer to a third state willing to try the individuals.
     
    Alfred P Rubin has said of the provisions on piracy in the 1958 Geneva High Seas Convention and those in the 1982 UNCLOS that they are “identical in substance, and neither can be said to make sense”, (J P Grant and J C Barker (eds), The Harvard Research in International Law: Contemporary Analysis and Appraisal (New York: W S Hein, 2007), at 244). Even without such an authoritative indication of ambiguity or obscurity such as would justify resort to the preparatory work, the rules of treaty interpretation envisage its investigation for possible confirmation of the meaning suggested by the (abridged) application of the general rule above.
     
    Put shortly, the preparatory work in the records of the ILC relating to what became the 1958 High Seas Convention show (in addition to the laconic commentary on the then draft Article 43):
    - the piracy provisions were lifted directly from selected provisions of the draft treaty in the 1932 Harvard Research publication (the selection criteria not being clearly exposed);
    - the ILC really only worked at all thoroughly on the definition of piracy, treating the other selected Harvard draft provisions as uncontroversial and as fully explained by the Harvard report;
    - debate in the ILC on drafts of provisions on matters other than piracy had a constant refrain upholding the primacy of the flag state in legal matters and the related principle of freedom for ships flying its flag from visit on the high seas by authorities of other states, with repression of piracy and slavery being repeatedly mentioned as among the exceptions to this principle.
     
    The Harvard draft had included a provision that: “A state which has lawful custody of a person suspected of piracy may prosecute and punish that person”. The commentary indicated that this “recognizes” jurisdiction to prosecute an alleged offender for piracy in any state which has taken him into custody lawfully; that the legality of seizure depended primarily on the law of nations, but that the power to seize alleged offenders could be enlarged or restricted by agreement with other states. The Harvard draft also contained several provisions safeguarding the rights of the accused.
     
    I draw no firm conclusions but hope that the above gives a glimpse of some further lines of inquiry which the “Vienna rules” on treaty interpretation suggest, taking the opportunity to thank Opinio Juris for pointing to my book on treaty interpretation, and fully recognising that the interpretative factors outlined here are incomplete and may raise more questions than answers.
     

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