By Ribhu Sehgal & Arun Raghuram Mahapatra
Abstract/Blurb:
Piracy has been a threat to maritime security and the freedom of navigation since time immemorial. As per UN Convention on the Law of the Sea, piracy is defined as illegal acts of violence, detention, or depredation, committed for private ends by the crew or passengers of a private ship/aircraft against another ship/aircraft (including its crew and property). While this definition has been under scrutiny for its looseness since its very inception, even sparking the public-private ends debate, there seems to be a clear ambiguity when it comes to defining ‘violence’ within piracy. In this article, the authors attempt to explore the lacuna caused by the ambiguous definition of ‘violent’ within piracy and formulate a structured definition for the same.
Introduction
Piracy is a threat to maritime security and the freedom of navigation. All through history, pirates have been termed as hostis humani generis or “the enemy of all mankind.” While the number of piracy-related incidents has fallen to the lowest figures since 1992[1], it is still a subsisting issue that requires sustained efforts.
As per Art. 101 of the UN Convention on the Law of the Sea[2] [UNCLOS], piracy is defined as illegal acts of violence, detention, or depredation, committed for private ends by the crew or passengers of a private ship/aircraft against another ship/aircraft (including its crew and property). While this definition has been under scrutiny for its looseness since its very inception, even sparking the public-private ends debate[3], there seems to be a clear ambiguity when it comes to defining ‘violence’ within piracy.
It is pertinent to note, that the ambiguity associated with piracy has creeped its way into the Indian legislation as well with the enforcement of the Maritime Anti-Piracy Act, 2022[4] which came into force to give effect to the UNCLOS definition of piracy without amending it even slightly.
Here we attempt to formulate a structured definition of violence within piracy. Firstly, we will address the need for a clearer definition of violence by identifying the existing shortcomings. Secondly, we will suggest a refurbished definition of violence by the virtue of a determinative test.
The Need for Refurbishment: Existing Loopholes Within ‘Violence’
As per Art. 31(1) of the Vienna Convention of Law of Treaties[5], a treaty “shall be interpreted… with the ordinary meaning to be given to the terms.” Hence, to arrive at the ordinary meaning of violence, we can rely on widely-accepted dictionaries. Resultantly, we come across the following definitions of violence: –
- Black’s Law[6] – “unjust or unwarranted exercise of force.”
- Merriam-Webster[7] – “the use of physical force so as to injure, abuse, damage, or destroy”
- Collins[8]– “behavior which is intended to hurt, injure, or kill people.”
- Cambridge[9] – “actions or words that are intended to hurt people”
From an overview of these sources, we can already see contradicting viewpoints. While Merriam-Webster mandates ‘physical force,’ the other sources leave it open-ended enough to include the use of non-physical and mental elements of force, with Cambridge even including words. Similarly, while Black’s definition requires only unjust/unwarranted exercise of force without the need for any underlying intention, the other sources necessarily require a qualifier of intention to injure, hurt, or damage.
Piracy as a crime/offence has evolved considerably from the time of its inception. The Harvard Draft Convention on Piracy, which was the earliest significant attempt at codifying piracy, only covered acts of violence/depredation with the aim to rob, rape, injure, enslave, imprison, or kill a person, or steal/destroy property for private ends.
It is evident that the UNCLOS, by and large, adopted the traditional definition of piracy without considering what the future could behold. The ambiguity resulting from the existing definition of piracy has gotten a lot of attention with regards to the public-private ends facet but not so much on the vagueness of the term ‘violence.’
In the 20th century, the term violence could have been easily assumed to be associated with the use of physical force causing or capable of causing harm, injury, or damage. However, violence itself has evolved and new mediums of disruption have emerged, with their severity being minuscule but not negligible. Examples of such mediums include flashbangs, smokescreens, paintballs, etc.
These items are usually not harmful and can be recognized as tools of protest, hence receiving protection under freedoms of expression, assembly, and association, which fall within customary law and are also codified in several human rights treaties.[10] However, notwithstanding the same, some of these mediums either have a slight spec of lethality or can easily be converted into lethal weapons. For instance, paintball guns can be transfigured into a real firearm through minimal modifications[11], and even without these modifications, paintball guns can be deadly if they strike certain body parts such as the eyes or the throat. Now, the question is whether such mediums, which may be harmless to life and property but fatal if utilized in a certain way, fall under the ambit of ‘violence’ within piracy?
The International Maritime Organization in its draft of the Code of Conduct for Assurance of the Safety of Crew and Maritime Navigation during Demonstrations/Campaigns against Ships on the High Seas, has acknowledged that violent activities would include activities that are ‘a risk to human life and property and safe navigation of vessels.’[12] However, this itself is inadequate as a determiner for violent activities since it does not account for varying levels of severity of damage caused by non-lethal weapons.
Meanwhile, even though the Indian legislation on Piracy does talk about the presumption aspect, emphasizing the use of arms, ammunitions and explosives and the evidence of intended threat, it does little to nothing to incorporate any form of specificity since it immensely broadens the scope of piratical acts by using the phrase “other equipments of similar nature”[13].
Although violence in most international crimes, including piracy, is decided on a case-to-case basis, the current definition of piracy lacks any specificity, necessitating a semi-structured regime with some absolute standards.
Redefining ‘Violence’ in Terms of Piracy: Adopting a Holistic Approach
To solve the loopholes and problems highlighted in the previous section, we have tried to come up with a three-tiered approach to holistically define violent activities. We have chosen three parameters, i.e., severity of means, quantum of damages, and intention, to formulate a test to categorize acts as violent acts. For an easier understanding of the proposed test, please refer to the following diagram: –
The first parameter is the severity of the means and herein we make a broad distinction between severe and non-severe means. Severe means would include guns, artillery, and anything else that is ‘sure or very likely to cause’ (taking inspiration from the U.S. caselaw Helling v. McKinney[14]to arrive at this specific phrase) harm, injury, or death/damage to persons/property. Whereas non-severe means would include flashbangs, water cannons, skunks, paintballs, pepper sprays, etc., and any other means that are not ‘sure or very likely to cause’ harm, injure, or kill persons/property.
The second parameter is the quantum of damages and once again we can make two broad distinctions in this parameter. Firstly, we have the category wherein ‘some tangible’ harm is caused to the persons/property. Secondly, we have the category wherein ‘negligible or no’ harm is caused to the persons/property.
The last parameter is the intention underlying the act, and unlike the first two parameters, it cannot be divided into just two broad distinctions. It is the primary parameter that actually decides whether an act committed was violent or not. This is in line with holding of the Indian Supreme Court, wherein it stated that “[t]he only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm.”[15] It is the intention to cause prospective harm and not the fact that no injuries have yet been suffered which determines the wrongfulness of the act.[16] A dangerous act, if committed often enough, will inevitably lead to harm, which could easily be irreparable.[17] Hence, the first two parameters of severity and quantum of damages are supporting parameters that determine the threshold for the intention that is needed to make an act violent.
Coming to the actual application of the proposed test, the situation is relatively simple when considering severe means which entail some form of harm. In such cases, a quasi-strict-liability principle applies, with the threshold for preclusion of the act being very high. The only exceptions, where the act is not violent in such a situation, are that of self-defense, saving other lives, and other defenses that apply to the principle of strict liability (like volenti non fit injuria, vis major, act of third-party, etc.). For example, if a gun is accidentally fired for any reason, and the bullet hits a person or damages the property on another ship, it would be considered a violent act, unless it is precluded by the exceptions so laid. Indeed, as has been laid down by the Indian Supreme Court, reckless conduct attracts criminal liability and it refers to “negligent conduct [which] does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk.”[18]
With respect to an act committed by severe means that has not caused any harm, the threshold of intention is relaxed substantially. In such cases, a simple determination of whether there was an underlying intention to cause harm or not is sufficient to classify the said act as violent or not. For example, if a gunshot is fired into the air, the determinative question is whether it was meant to injure or just missed its target. The latter is violent, the former is not. This is because “if there is nothing to suggest that the actor was aware of the risk deliberately taken, then he is morally blameless and should face, at the most, a civil action for damages”[19] and not criminal charges pertaining to piracy.
As aforementioned, the quantum of damages and the use of severe or non-severe means are just supportive determiners of intention itself, and hence for the acts committed through non-severe means, the entire burden is put on the ‘intention’ parameter. In such scenarios, intention would be determined through an analysis of the entire situation and examining whether an exceptional situation/alteration was made through or by the non-severe mediums to cause harm. For instance, if someone modifies a paintball gun to shoot actual bullets or shoot pellets containing acid, it is quite evident that there was an underlying intention of causing harm irrespective of the fact whether the perpetrators were able to cause harm or not. On the contrary, notwithstanding the quantum of damages, if non-severe means were used without any intention of causing harm, then the same would not be considered a violent act.
Overall, the proposed test tries to provide a structure/skeleton to the case-by-case determination of violence within piracy. At the same time, by the virtue of using words prima facie, reasonable, tangible harm, etc. the proposed test allows for flexibility and adequate room for judicial interpretation, in line with the current case-by-case basis assessment.
Conclusion
The legal jurisprudence surrounding the determination of piracy has always been lacking at best. By the virtue of the proposed test, the authors have attempted to alleviate one of the loopholes within the ambit of piracy by trying to redefine the aspect of ‘violence.’ While this test for determining violence has been proposed with respect to piracy in particular, it could very well be employed to determine violence within any other criminal activity, subject to further research, analysis, and evolution. The authors further believe that there is a need to revisit the definition of piracy within UNCLOS and the Maritime Anti-Piracy Act, and introduce changes in line with the proposed test for a more holistic way forward.
[1] ICC International Maritime Bureau, ‘Piracy And Armed Robbery Against Ships – Report for the Period 1 January – 30 September 2022’ (2022).
[2] United Nations Convention on the Law of the Sea, (opened for signature Dec. 10, 1982) 1833 U.N.T.S. 397, art 101.
[3] Arron N. Honniball, ‘The ‘Private Ends’ of International Piracy: The Necessity of Legal Clarity in Relation to Violent Political Activists,’ (2015), International Crimes Database, <https://www.internationalcrimesdatabase.org/upload/documents/20151102T100953-Honniball%20ICD%20Brief.pdf> accessed 22nd January, 2023.
[4] The Maritime Anti-Piracy Act, 2022 (India).
[5] Vienna Convention on the Law of Treaties, (opened for signature May. 23, 1969) 1155 U.N.T.S. 331, art 31.
[6] ‘violence’, Black’s Law Dictionary (4th edn).
[7] ‘violence’ (Merriam-Webster Dictionary), <https://www.merriam-webster.com/dictionary/violence> accessed 4 April 2023.
[8] ‘violence’ (Collins English Dictionary), <https://www.collinsdictionary.com/dictionary/english/violence> accessed 4 April 2023.
[9] ‘violence’ (Cambridge English Dictionary), <https://dictionary.cambridge.org/dictionary/english/violence> accessed 4 April 2023.
[10] Dr. Maria Chiara, ‘The Arctic Sunrise Arbitration and Acts of Protest at Sea’, (2016) Maritime Safety and Security Law Journal, <https://www.marsafelawjournal.org/wp-content/uploads/2016/10/Issue2_NOTO_Article.pdf> accessed 22nd January, 2023.
[11] ANI, ‘Paintball guns can easily be converted into the real thing’ (DNA India) <https://www.dnaindia.com/technology/report-paintball-guns-can-easily-be-converted-into-the-real-thing-1383484> accessed 24th January, 2023.
[12] lnt’l Marit. Org. (lMO), NAV 54/10/1, Sub Committee on Safety of Navigation (Apr. 25, 2008).
[13] The Maritime Anti-Piracy Act, 2022, s 11.
[14] See Helling v. McKinney, 509 U.S. 25 (1993).
[15] P.B. Desai v State of Maharashtra, (2013) 15 SCC 481 [45].
[16] See Helling v McKinney, 509 U.S. 25 (1993).
[17] See Harris v Board of Supervisors, L.A. County, 366 F.3d 754 (9th Cir. 2004).
[18] P.B. Desai v State of Maharashtra, (2013) 15 SCC 481 [45-46].
[19] P.B. Desai v State of Maharashtra, (2013) 15 SCC 481 [46].
Centre for Maritime Law 