Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

Russia May Charge Greenpeace Activists with Piracy; Will They Cite the Ninth Circuit? (Updated)

[See update at end of this post] Russia’s government has recently been talking up international law, so it will be interesting to see if they follow through with plans to charge Greenpeace activists with piracy.

MOSCOW — Russia opened a criminal case Tuesday against Greenpeace activists, accusing them of piracy for attempting to stage a protest on an Arctic oil rig. A Greenpeace spokeswoman called the accusation “absurd.”

Russian border troops seized the Greenpeace icebreaker Arctic Sunrise, along with its multinational crew of 30 activists and sailors, in a commando operation Thursday in the Barents Sea. The day before, the group had been foiled while attempting to raise a protest banner on a Russian oil drilling platform.

The facts remain pretty fuzzy, but I don’t think the Russian charge of piracy is quite as absurd as Professor Joseph Sweeney of Fordham, an eminent authority on admiralty law, makes it out to be.  Prof. Sweeney says in the article:

“They can’t be too serious about charging them with piracy,” said Joseph C. Sweeney, professor emeritus of international and maritime law at Fordham University Law School. “That requires stealing things and the intention of stealing things.”

But current definitions of piracy don’t require an intention for financial enrichment. Rather, as we noted back in February when the U.S. Ninth Circuit Court of Appeals upheld an injunction against anti-whaling protestors for attacking Japanese whalers, UNCLOS requires only that the attackers be acting for “private ends.”  As Kevin argued in his post, there is reason to believe that “private ends” does not include “politically motivated” acts (although Eugene Kontorovich has a good rebuttal of that point here).  In any event,  I think the traditional idea that piracy requires the goal of financial enrichment cited by Professor Sweeney is no longer widely held.

This means that the Russians can make out a colorable charge of piracy.  It also means that this theory will allow them to avoid questions about whether they were in the Russian exclusive economic zone, etc, since that shouldn’t matter if they stick with the piracy charge.  I expect the Russians will cite the Kozinski Ninth Circuit opinion, and if they do, this may be an important precedent for the development of modern piracy law.

[UPDATE: I stand by the analysis above, but I should note that 1) Eugene Kontorovich argues that this can’t be piracy because they did not attack a “ship”; and 2) Russia’s President Putin seems to have admitted this can’t be piracy, although he maintains there is some other legal violation here somewhere since he alleges they tried to “seize the rig by force”.]

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There are a number of cases and incidents during which it has been recognized that conduct engaged in for “political” purposes is not piracy.  When Italy refused an extradition request from the United States for trial of Achille Lauro boatjackers for “piracy,” it was generally accepted that the Italian refusal was appropriate because the Palestinian boatjackers had “political” motives.  Italy prosecuted the perpetratprs for other cirmes,although they let the alleged ringleader, Mr. Abbas, go.
Today, it seems that the majority of Somalian pirates have merely profit motives, but have some seized ships for “political” motives to support terrorist activities?  In any event, hostage-taking for any purpose is an international crime.  Mistreatment of hostages by nonstate actors can also involve violations of human rights law (human rights can be violated by non-state actors — see, e.g., ICCPR, prmbl and art. 5; Am. Dec. of the Rights and Duties of Man; etc.).
The Russian claim is, at best, specious and should be ignored.

Eugene Kontorovich

It is pretty clearly not piracy: no “act of violence,” and fails the so-called two-ship requirement. See my post –

Roger Phillips

I agree with Eugene that the most obvious omission here is piracy’s  “two-ship requirement.” In contrast, the SUA Convention and its optional protocol related to fixed platforms are tailored to these types of situations. The latter prohibits the seizure or excercise of control over a fixed platform by force or threat or any other form of intimindation. Russia ratified the latter in 2001. Therefore, there is a basis for claiming the Greenpeace activists violated international law, albeit not by committing piracy.