Vivek Pandey & Geetika Vyas*
Abstract
Piracy has been considered as an enemy of the mankind since long back. However, till date our legal system has not been able to control the offence. At some places, there has been a continuous rise in number of pirate attacks over the past few years. Where it has reduced, the number is not substantial when compared to resources put in and lost. Through this essay, we attempt to show that there is a need to give attention on prosecuting pirates. Further, although the national courts carry out prosecutions, few countries take maximum burden. The responsibility must be shared among the nations, as it is a matter of international concern. For the same purpose, International Tribunal would be best suited. Argument is made that it would lead to a more effective trial and lead to a better prosecution system in place. Moreover, sharing burden among nations extends to exploring our maritime domain and sharing of information that will help in better investigation.
Key Words:
Maritime domain awareness, Universal jurisdiction, ransom inflation, piracy
Introduction
Even in today’s world where people are traveling by Air, data is flowing through optical cable and satellites, goods and commodities are still transported through sea routes. These goods can range from small goods we use in our everyday life to heavy and expensive materials.[1] In 2017, approximately 10.7 billion tons of cargo was transported through sea according to the United Nations Maritime Review.[2] This number will keep rising eventually with time, as man would move to seas for resources. Resources in the high seas and in future, possibly the deep-sea mining, may open a new dimension to the economy.[3] Therefore, securing our sea is a need.
However, we have not been very successful in controlling the offence of piracy at sea. Offences such as hijacking, kidnapping, armed robbery, failed attacks, and suspicious approaches have been occurring frequently. Currently, pirates cover a large chunk of world map covering Indian subcontinent, South America, Africa, South-East Asia, and East Asia.[4]According to the State of Maritime Piracy report of 2018, the Gulf of Guinea was the most affected region by the piracy and other offences.[5]Pirate attacks have increased in East Africa[6] and West Africa[7] as well.
Further, there is a 15% increase in the number of incidents from 2017 to 2018.[8] In 2017, the numbers of pirate attacks were 180 and in 2018, the number rose to 201.[9] Although the number of pirate attacks in the year 2014 was 245, which decreased to 201 in 2018[10], it shows that the number is still unpredictable. Apart from that, there was around a 20% increase in Latin America and the Caribbean.[11] There was no reduction in the number of incidents in Asia.[12] As the data suggests, the existing attempts against piracy as of now have not brought any long-term stability. Therefore, piracy continues to pose a danger in the Maritime domain.[13] This continuing threat can directly linked to ineffective prosecution where most of the offenders go consequence-free.
Laws governing Piracy
It is pertinent to have a brief overview at the law governing modern piracy under the Public International Law. It is defined under Article 101 of the United Nation Convention on the Law of Sea, 1982 (hereinafter UNCLOS).Broadly, it covers commission of an illegal act of violence, detention and depredation to meet private ends.One essential element is that it must be committed in the high seas or outside the jurisdiction of states. Furthermore, the definition also categorizes inciting or facilitation of the same as an offence.
Further, per the established principles of Public International Law, piracy is one of the oldest crimes to have universal jurisdiction, which also is an exception to the ‘exclusive jurisdiction of the flag state and the principles of the freedom of the high seas’.[14]
Why there should be an increased focus on prosecution?
It is important to take prosecution seriously because the probability of occurrence of an offence is a ‘function’ of chances of conviction and magnitude of punishment.[15]The National Security Council of the United States of America has acknowledged that the Somali based piracy has flourished because the actions go ‘consequence free’.[16]The question here arises is that why is the prosecution ineffective despite having ‘universal jurisdiction’?
Problems with Universal jurisdiction
Pirates have been considered as ‘hostis humani generis’ (enemies of all mankind) for centuries and under this customary law, this offence holds the ‘universal jurisdiction’.[17] This means that any nation can prosecute an accused according to its own domestic laws irrespective of their nationality. It was England, whichconferred piracy with the universal jurisdiction. In the year 1969, the court in the trial of Henry Avery held that it could punish piracy at the sea, which would not be limited by the place occurrence of the offence.[18]Thereby meaning, that any court will have the jurisdiction to prosecute any pirate without considering the nationality of the pirate or place of offence.[19]
However, universal jurisdiction can act as a threat to the orderly legal process.[20] The problem with universal jurisdiction is the contradiction between political interest and the universality of its mission.[21] While highlighting the problems with universal jurisdiction, this section neither argues for aut dedere aut judicare, meaning choice with State of judging or extraditing nor for primo dedere secondo prosequi, meaning the State to attempt extradition first and judging in case of failure. These options are not feasible for another reason, which is overburdening the Courts of specific countries with comparatively low resources to carry out the prosecution. The fact that Seychelles, Kenya, and Somalia carry more prosecution shows that the responsibility is not being shared among the nations. Therefore, conferring piracy with universal jurisdiction has not been very effective solution.
It is a fact that International law and politics cannot be separated.[22]There is the lack of ‘political interest’ for most of the states in prosecuting the accused for an offence of piracy and therefore, they do not carry out prosecution. Various problems are faced by nations that are prosecuting the offenders, ranging from funding, legal limitationsand improper investigation due to lack of expertise. Expertise can be developed subject to willingness of the states to prosecute, which is lacking. However, it is foreseeable that maritime trade would eventually rise and if there is a lack of consequence, the number of pirates will too, resulting in loss of every nation directly or indirectly.[23] Therefore, every nation should be having the required ‘willingness’.
Towards an International prosecution system
It is important to point that there are also some inherent concerns about the definition of piracy mentioned in the United Nation Convention on the Law Of Seas (hereinafter UNCLOS). It restricts the offence up to the territorial waters of the state. Although it is one of the deep-rooted concerns, the discussion is beyond the scope of the essay here.
United Nation has attempted to establish anti-piracy courts in Somalia and nearby region.[24]United Nation believed that since the Somali pirates commit most of the crime, it would be easier to prosecute them there.[25]Although Seychelles has successfully established a Court for piracy and maritime crime, efforts in Somalia have not been successful.[26]It is argued that even if it becomes successful, it still does not ensure shared responsibility and burden. Focus in this essay instead will be on an alternative International prosecution system. Use of international tribunals such as the International Criminal Court or establishment of a specialized Tribunal has been ignored previously due to various reasons. One reason for the same is that, the idea is not feasible due to lack of financial reports and contingency of effectiveness.[27] However, considering all the other hurdles and risk of ‘ransom inflation’, economically also, the idea of an international tribunal is relevant to discuss.
There are multiple reasons to choose international prosecution system. One important reason is the lack of political will of the countries to carry out prosecution, which is alsoanobstruction in the current system. States, which prosecute, bear the cost and therefore, their willingness is related ‘cost benefit analysis’ of the process.[28] Even though the pirates have been declared as ‘enemies of mankind’, not the whole mankind is affected by it, at least not directly. Therefore, the burden of the cost of prosecution will remain high in some countries compared to others. By 2011, there were 20 states, which were interested in carrying out prosecution out of which Kenya, Seychelles, and Yemen carried out the highest number of convictions.[29]That was more than 90% of the total number of prosecutions.
Even the punishment or the magnitude of punishment to the offenders becomes a secondary question. First priority is to have the system in place first. Probability of discovery, capture and conviction is more deterring than magnitude of punishment.[30]
The International Criminal Court
Mark Chadwick has argued in his book ‘Piracy and the Origins of Universal Jurisdiction’ that ‘modern international criminal law is descended from the pursuit of pirates’.[31]It is relevant to discuss the International Criminal Court (hereinafter ICC) when it comes to an offence which is both, criminal and international in nature. Article 1 of the Rome Statute says that the “ICC shall have the power to exercise its jurisdiction over persons for the ‘most serious crimes’ of international concern.”[32] Considering the ‘human’[33] and ‘economic’[34] cost of piracy, there is no denial of the fact that the act of piracy is one crime that is both ‘serious’ as well as ‘of international concern’. However, it is still not included in the Rome Statute.
Offence of piracy does not fit into any of the existing offences mentioned in the Rome Statute in the light of ‘Elements of Crime’[35]with the Rome Statute. Therefore, the only possible way is the amendment of the statute. One of the major reasons, that piracy was not included in the Rome Statute is that the state actors commit the act of piracy for personal gain and not a crime against humanity.[36]Although the pirates may seem like terrorists, the fundamental difference lies in the fact that they do not act on the basis of any ideology but because of their own economic interest.[37]However, considering the human cost involved in a piracy[38], it cannot be taken less seriously. In 2017, 1102 seafarers were affected and 41% of these incidents were armed attacks.[39]
Even if it is more concerned with personal economic gain, this argument does not make piracy a less serious offence. The economy is important and it would make it an equally serious crime as any humanitarian crime.Further, the hesitation in establishing an international tribunal on ‘cost effectiveness’[40] is also not justified under current economic cost.
Establishment of a SpecializedInternational Tribunal
United Nation Security Council (hereinafterUNSC) has wide powers under chapter VII of the UN Charter. United Nation has used the power of chapter VII several times in the interest of justice like in case of the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The establishment of the similar tribunal has not been given much thought for the offence of piracy. Establishment of such a tribunal would have an additional advantage viz. ease of investigation and expertise in prosecution. This is because physical proximity of the court to the place of offence helps in making investigative procedure easier, for example handing of evidences, witnesses etc.[41]
Collection of evidence is directly proportional to ease in prosecution. Such tribunal wouldcomparably be in a better position to ease the procedural requirement for prosecution. Assembling evidence has been cited as one of the major reason for pirates to escape the punishment.[42]The advantage that the Specialized tribunal would possibly have is ‘convenience of prosecution’. Tribunal would be set up in the close proximity that would make the process comparatively easier.
Furthermore, more than one of these tribunals can be established based on regional jurisdiction where piracy is prevalent in modern times. Being in a proximity would help it with a better coordination with the national Courts of that region as they also possess a concurrent jurisdiction.
The establishment of a tribunal was considered earlier, but was discarded too early.[43]Establishment of a court system has been previously proposed by African nations also. The range of options that the opposing arguments provide are limited and not well considered.[44]These were regarding the seriousness of offence, economic feasibility and lack of state cooperation.[45] However, in the present time, neither can piracy be considered as a less serious offence nor ransom inflation be ignored.
Although critics argue that lack of apprehension had reduced the deterrent effect of Ad Hoc tribunals.[46]However, it is to be noted that the ICTR and ICTY eventually managed to prosecute individual perpetrators including their leaders[47].
UNSC report of July 2010 said that the international tribunal may not be the most cost-effective option for countering piracy.[48] However, this argument needs a reconsideration in the light of cos that is being paid today. According to a World Bank study, the world has paid a huge estimated ransom between USD 339 and USD 413 million to Somali pirates from 2005 to 2012.[49] This is in addition to the disappearance of several small boats, ships, resources, and human lives.[50]It should be noted that this data is only limited Somali region and for a limited time period. The complete figure would surely put bigger figure. Most numbers of pirate attacks from 1995 to 2013 were in Southeast Asia, which costed the world billions of dollars’ worth fuel and supplies.[51]Therefore, the argument of economic feasibility against the establishment of an international tribunal does not stand strong.
The proposal of trial in ICC have been set into discourse previously and it has been noted that the idea is not feasible since these forums are treaty bodies.[52] Adding piracy to it would require a considerable amount of negotiations that might take a long time.[53] However, as mentioned above, the fact that the issue still exists substantially in the world, it is better to reconsider ideas that were previously rejected for different reasons.
In fact, if the stage of negotiation is completed, the advantage of proceeding with the ICC is that the institution is already existing and therefore, the work of prosecution can be set into motion.It is the case with the other existing bodies like International Tribunal for the Law of the Sea (ITLOS) and African Court on Human and Peoples’ Rights (ACHPS). Even though due to the aforementioned reasons, the special tribunal would be preferable, the comparison of ICC, separate tribunals or other existing institutions in detail is another discussion.
Role of Investigation and shared responsibility
In order to carry out successful prosecution, prerequisites are an ‘effective and efficient’ investigation along with preservation of evidences.[54] For the same, information sharing and coordinated efforts are an essential elements.In 2005, Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ship, the first multilateral treaty on regional cooperation was signed in Asia.[55] The purpose was to establish an information-sharing center in Singapore.[56]
The UN resolution 1816 of 2008 called all the states to cooperate with the prosecution of pirates.[57] Especially in the Somali coast, the UN is aware about the instability in Somalia, and considering the same, UN has again extended the authority to International Naval Forces to take actions in Somalian coast. The coordinated actions of nations have helped to make the area comparatively more secure. Similar concerted efforts may help in effective investigation.
Fouche, in his article argues that there must be a central body to communicate and coordinate with all the players involved in monitoring or curbing piracy.[58] For this purpose, he places his trust inInterpol.
Interpol is an International police organization that is well equipped with trained police officials who are fit to carry out investigation.[59]Interpol would be more equipped than Navy as they are specifically trained for tasks like these andon the other hand the navy is meant for different purposes.[60]
Further, in order to be more cooperative, nations have to advance and expand their Maritime Domain Awareness (MDA). MDA will promote sharing of data among the nations that would collectively help them in locating, pursuing, forming strategy and finally capturing and prosecuting them in appropriate court.
Conclusion
The idea of an International Tribunal for trying the offence of piracy must be set into discourse for four reasons. Firstly, it is economically more feasible, secondly, because of the human cost of piracy involved, thirdly that it would bring an effective trial into effect and lastly the responsibility of prosecuting the ‘enemy of the mankind’ must be shared.
Piracy is a serious concern in terms of loss of our human and economic resources. It has the potential to becomealarming as relevance of sea is increasing substantially. Our increasing dependency on natural resources in high and possibly in the deep seain future can be another reason to keep our seas more secure.In such a situation, it is even more important to have a procedure for prosecuting the offenders present at the sea. As mentioned above, the likelihood of being captured is inversely proportional to the occurrence of the offence. We need a better legal system at both, investigation and trial level to first control and then terminate piracy at sea.
No doubt, it is an international concern where almost all the nations are affected. In the modern era, when a pirate attacks, loss is not only suffered by the shipping company but also by the nation whose citizens are working for that ship. Thus, a single pirate attack on a ship can affect more than two nations. Therefore, nations must take a shared responsibility of curbing something that has affected us in the past and has the potential to substantially affect our future.
Further, we need to shift our reliance from universal jurisdiction to an international system of prosecution as the same has proven to be inadequate and in a way unjust to some countries. Since piracy is the crime of international nature, there should be a proactive International tribunal along with the national courts. This approach will help us in dealing the offence effectively. The pirates have caused serious damage to the mankind and therefore it is time that countries should come together to take coordinated action.
*Students of Symbiosis Law School, Noida.
This essay has been selected for publication through the 1st NLUO-Ganesh & Co. National Maritime Law Essay Writing Competition, 2019.
[1]Dean Cheng, the importance of maritime domain awareness for the indo pacific quad countries 1 (2019).
[2]United Nations Conference on Trade and Development, Review of Maritime Transport1 (2018).
[3]Barclay Ballard, Deep Sea mining could provide access to a wealth of valuable minerals, The New Economy (May 13, 2019) https://www.theneweconomy.com/energy/deep-sea-mining-could-provide-access-to-a-wealth-of-valuable-minerals.
[4]ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships 6 (1st January- 31st December 2018).
[5]Lydelle Joubert, The State of maritime piracy 2018 assessing the human cost 1 Robin Dickerhoof, eds., (2018).
[6]Maisie Pigeon et al., The state of maritime piracy 2017 assessing the economic and human cost pg. (2017).
[7]Abhishek Mishra, Piracy is back to infest west African waters, but what’s driving it? 3 (June 25,2019) https://www.orfonline.org/expert-speak/piracy-again-back-infest-west-african-waters-what-driving-52339/
[8]Lydelle Joubert, The State of maritime piracy 2018 assessing the human cost 1 Robin Dickerhoof, eds., (2018).
[9]Pigeon et. al., supra note 6.
[10]Ibid.
[11]Supra Note 8.
[12]Ibid.
[13]Captain, IMB Piracy report: worldwide piracy increases 2018 as gulf of guinea attacks surge (January 16, 2019).
[14]Malcolm N. Shaw, International Law 446 (7th ed. 2014).
[15]SeeCaitlin Stapleton Kaprove, ‘The Law and Economics of Piracy at Sea’, (M.Q. Mejia, Jr. et al. eds., WMU Studies in Maritime Affairs 2, Springer, 2013).
[16]National Security council, Countering Piracy off the Horn of Africa: Partnership & Action Plan (December 2008).
[17]Yvonne M. Dutton, Bringing Pirates to Justice: A case For Including Piracy within the Jurisdiction of the International Criminal Court, 11 No. 1 Chicago J.I.L . 198, 203 (6-1-2010).
[18]Ibid.
[19]Mark Chadwick, The prosecution of pirates was a model for today’s system of international justice, The Conversation, (Jan. 12, 2019) , https://theconversation.com/the-prosecution-of-pirates-was-a-model-for-todays-system-of-international-justice-109169
[20]U.N,73rd Sess.,11th mtg. at 6, U.N. Doc. GA/L/3571 (Oct. 10, 2018).
[21]Hasnov Rahim, The Problem of Universal Jurisdiction in Curbing International Crimes, 7 Acta.U.D.J 110, (2011).
[22]Shaw,Supra Note 14 at 2.
[23]National Security council, Countering Piracy off the Horn of Africa: Partnership & Action Plan 12 (December 2008).
[24]U.N. Secretary- General, Specialized anti-piracy courts in Somalia and other States in the region:Rep. of the Secretary-General, U.N. Doc S/2012/50 (Jan. 20, 2012).
[25]Ibid.
[26]U.N. GAOR, 8391stmtg. U.N. Doc. SC/13566 (Nov. 6, 2018).
[27]Caitlin Stapleton Kaprove, ‘The Law and Economics of Piracy at Sea’ 104 (M.Q. Mejia, Jr. et al. eds., WMU Studies in Maritime Affairs 2, Springer, 2013).
[28]Henri Fouche, The Law Enforcement Approach to Sea Piracy: Overcoming Challenges to Effective Investigation and Prosecution of Somali Pirates 74 (M.Q. Mejia, Jr. et al. eds., Piracy at Sea, WMU Studies in Maritime Affairs 2, Springer, 2013).
[29]Supra note 24.
[30]Gray S. Becker, Crime and Punishment: An Economic Approach 76 2 The Journal of P.E, 169, 176 (Mar- Apr. 1968).
[31]Supra note 18.
[32] Rome Statute of the International Criminal Court, Article 1, July 1, 2002, Vol. 2187, No. 8544.
[33]SeeKaija Hurlburt, The Human cost of Somali Piracy2 (Jun. 6, 2011).
[34]See One Earth Future, The Economic Cost of Maritime Piracy 2, One Earth Future Working paper (2010).
[35]Elements of Crime, https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf.
[36] Melanie O’Brien, Where Security Meets Justice: Prosecuting Maritime Piracy in the International Criminal Court, 4, Asian Journal of International Law 81, 81–102 (2014).
[37] Charles Reid, Securitization of Piracy off the Horn of Africa: Are there implications for Maritime Terrorism?, 5 The Corbett Centre for Maritime Policy Studies, King’s College London 5, 1-20(2011).
[38]One Earth Future, The State of Maritime Piracy-Executive summary 1 (2017).
[39]Ibid.
[40]Danielle A. Zach et.al., A Study of the Contract Group on Piracy Off the Coast of Somalia 23 (2013).
[41]Fouche, supra note 28 at 69.
[42]Abbas Daher Djama, The Phenomena of Piracy off the coast of Somalia : Challenges and Solutions of the International Community 3 (Dec. 2011).
[43]Zack et. al.,supra note 40.
[44]Kenneth Scott, Prosecuting Pirates: Lesson Learned And Continuing Challenges 41 (2016).
[45]Id. at 47.
[46] Lilian A. Barria, Steven D. Roper, How effective are International Criminal Tribunals? An analysis of the ICTY and the ICTR, 9 The International Journal of Human Rights 3, 349 –368 (2005).
[47] Eg. The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, (June 1, 2001).
[48]Supra note 40.
[49]The World Bank, Pirate Trails Tracking the illicit financial flows from pirate activities off the horn of Africa 40 (2013).
[50]Ibid.
[51] Adam Mccauley, The Most Dangerous Waters in the World, time, Aug.15 2014, https://time.com/piracy-southeast-asia-malacca-strait/.
[52]Scott, supra note 44.
[53]Id.
[54]Fouche, Supra note 28 at 79.
[55]Shaw, Supra Note 14, at 447.
[56]Id.
[57] U.N. GAOR, 5902nd mtg. U.N Doc. SC/9344 (Jun. 2, 2008).
[58]Fouche, supra note 28 at 71.
[59]Fouche, supra note 28 at 72.
[60]Fouche,supra note 28 at 78.
Centre for Maritime Law 