Prosecuting Piracy

by Michael Scharf

After 200 years of quiescence, Piracy has re-emerged as a major problem for world shipping.  A recent report has documented that Piracy has resulted in more than $12 billion in losses in the past twelve months alone.  According to an August 11, 2011 article in the Guardian, Piracy is also significantly hampering food aid to drought-stricken Somalia, resulting in thousands of deaths.  Somali pirates have recently seized more than fifty vessels and taken over 1,000 crewmembers and passengers hostage. And the problem is getting worse.

The Public International Law & Policy Group (PILPG) has convened a “High Level Piracy Working Group” devoted to addressing the challenges posed by modern maritime piracy. The Working Group had its first meeting on May 19, and met for the second time on August 11 at the PILPG office in DC.

The High Level Piracy Working Group, which Paul Williams and I co-chair, includes Judge Rosemelle Mutoka (Kenya Piracy Court/Visiting Jurist at Case Western Reserve University School of Law), Jennifer Landsidle (Office of the Legal Adviser, U.S. Department of State), Ginny Vander Jagt (Department of Justice), Sandy Hodgkinson (Office of the Deputy Secretary of Defense), Ashley Roach (formerly of Office of the Legal Adviser, U.S. Department of State), Capt. Greg Noone (Navy JAG Reserve), Jerome Teresinski (U.S. Department of Justice and Army JAG Reserve), Tyler Rauert (Office of Senator Mark Kirk), David Crane (former Chief Prosecutor of the Special Court for Sierra Leone), and Brian Casey (head of Baker & McKenzie’s Litigation Practice Group in Toronto), as well as a dozen leading academics and practitioners from several countries.

The High Level Piracy Working Group’s mandate is to provide legal and policy advice to domestic, regional and international counter-piracy mechanisms, with the goal of helping to create effective responses to the growing piracy threat. As part of this project, PILPG is publishing the “Piracy News Update,” a biweekly electronic newsletter that will keep subscribers informed of piracy-related developments around the world. If you would like to receive the Piracy News Update in the future, click here. In addition, the High Level Piracy Working Group has assembled a comprehensive electronic database of piracy-related documents and resources, available here.

The August 11, 2011 Working Group meeting began with a detailed briefing by Jennifer Landsidle (DOS) of recent developments at the United Nations, including relating to the UN Secretary-General’s June 15 Report on “The Modalities for the establishment of Specialized Somalia Anti-Piracy Courts.”  The proposed Specialized Court would be loosely modeled on the Scotish Court that prosecuted the two Libyan Pan Am 103 bombing defendants at Camp Zeist in The Netherlands.  It would apply Somali and International Law, and have its seat at the ICTR Courthouse in Aurusha, Tanzania.

Although Tanzania welcomed the proposed initiative, and Russia and France are in favor of setting up a Specialized Anti-Piracy Court at the ICTR, the government of Somalia is strongly opposed to the idea. So, for the time being, the efforts of the Working Group are focused on creating legal research memos for use by domestic authorities in piracy prosecutions in Kenya, the Seychelles, Somaliland, and elsewhere. To that end, the Working Group has established a law firm and academic consortium — consisting of Baker & McKenzie, Case Western Reserve, Cleveland State (Prof, Milena Sterio), Emory (Prof. Laurie Blank), Georgetown (Prof. Mark Vlasic), Vanderbilt (Prof. Mike Newton), and Vrije Universiteit Amsterdam (Prof. Kenneth Manusama) – which is preparing research memos on such issues as: the definition of piracy, exercise of universal jurisdiction over pirates apprehended by third States, hot pursuit and the apprehension of pirates in the territorial waters of third States, standards of use of force against pirates by State authorities and private contractors, modes of responsibility applicable to piracy (joint criminal enterprise, command responsibility), prosecuting the financing of piracy, international standards of justice applicable to piracy trials, factors guiding the sentencing of convicted pirates, and repatriation and reintegration of pirates after completing jail time.

While the stars are not currently in alignment for the establishment of a Special Anti-Piracy Tribunal, I predict that the idea will gain traction in coming months as it becomes increasingly clear that Somalia is unwilling and unable to prosecute pirates domestically, that Somalia officials and elites may themselves be involved in piracy, and that a major international effort at prosecution as well as suppression is necessary to solve the problem of modern piracy.

http://opiniojuris.org/2011/08/19/prosecuting-piracy/

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