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An Empirical Examination of Universal Jurisdiction for Piracy

Published online by Cambridge University Press:  27 February 2017

Eugene Kontorovich  and
Steven Art
Eugene Kontorovich
Affiliation:
Northwestern University School of Law
Steven Art
Affiliation:
Hon. Diane Wood, U.S. Court of Appeals for the Seventh Circuit
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Extract

This essay presents a systematic study of the incidence of universal jurisdiction (UJ) prosecutions for the international crime of piracy. Using data on the number of piracies committed in a twelve-year period (1998-2009) obtained from international agencies and maritime industry groups, we determined the percentage of these cases where nations exercised universal jurisdiction. Studies of the worldwide use of UJ prosecutions for other crimes simply count how often universal jurisdiction has been exercised but do not attempt to determine the rate of prosecution. Simply counting cases does not allow one to appreciate the significance of universal jurisdiction in relation to the total problem. While the expressive or symbolic value of universal justice may be satisfied by a small number of isolated prosecutions, the deterrent effect depends on its incidence relative to the number of perpetrated crimes.

Type
Agora: Piracy Prosecutions
Information
American Journal of International Law , Volume 104 , Issue 3 , July 2010 , pp. 436 - 453
Copyright
Copyright © American Society of International Law 2010

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References

1 E.g., Reydams, Luc Universal Jurisdiction: International and Municipal Legal Perspectives (2004)CrossRefGoogle Scholar; Kaleck, Wolfgang From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998—2008, 30 Mich. J. Int’l L. 927, 932–58 (2009)Google Scholar. While this study focuses on prosecutions based on universal jurisdiction, for piracy such jurisdiction also includes the authority to board and search a foreign ship on the high seas and to seize the ship if warranted by that search. See United Nations Convention on the Law of the Sea, Arts. 105–06, 110, opened for signature Dec. 10, 1982, 1833 UNTS 397, available at http://www.un.org/Depts/los/index.htm [hereinafter LOS Convention].

2 See Hathaway, Oona A. Do Human Rights Treaties Make a Difference? 111 Yale L.J. 1935 (2002)CrossRefGoogle Scholar; Spirer, Herbert F. Violations of Human Rights—How Many? The Statistical Problems of Measuring Such Infractions Are Tough, but Statistical Science Is Equal to It, 49 AM. J. Econ. & Soc. 199 (1990)CrossRefGoogle Scholar.

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5 See Restatement (Second) of the Foreign Relations Law of the United States §34 cmt. b (1965); Edward Coke, the Third Part of the Institutes of the Laws of England: Concerning High Treason and Other Pleas 113 (London, E. & R. Brooke 1797) (1628).

6 See Kontorovich, Eugene, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45 Harv. Int’l L.J. 183, 184, 197–207 (2004)Google Scholar.

7 See Council of the European Union, AU–EU Technical ad hoc Expert Group, Report on the Principle of Universal Jurisdiction, para. 19, Doc. 8672/1/09 REV 1, annex, at 16 (2009) (reporting that “[n]o African state is known to have exercised universal jurisdiction effectively,” while UJ cases have been instituted in eight Western European nations). The experts were apparently unaware of the piracy prosecutions in Kenya, which demonstrates the lack of attention that the exercise of universal jurisdiction over this crime has received.

8 Geneva Convention on the High Seas, Art. 15, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82; LOS Convention, supra note l, Art. 101.

9 Andersen, Elizabeth, Benjamin Brockman–hawe, & Patricia Goff, Suppressing Maritime Piracy: Exploring the Options in International Law 7, 15–16 Google Scholar (report on workshop sponsored by the American Society of International Law, the Academic Council on the United Nations System, and the One Earth Future Foundation, 2009), available at http://www.asil.org/files/suppressing–maritime–piracy.pdf (also on file with the ASIL library).

10 See Imo Maritime Safety Committee, Reports on Acts of Piracy and Armed Robbery Against Ships, Annual Report—1996, para. 1, MSC/Circ.785 (Mar. 17, 1997) [hereinafter Mar. Safety Comm. date Report] (on file with authors).

11 Id., para. 2.

12 See, e.g., ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, 2007 Annual Report 2 (2008) [hereinafter ICC 2007 Report] (on file with authors).

13 See 1MB Piracy Reporting Centre, at http://www.icc–ccs.org/.

14 See ICC International Maritime Bureau, Piracy and Armed Robbery Against Ships, 1992 Annual Report, item 3 (1993) (on file with authors).

15 See ICC 2007 Report, supra note 12, at 3.

16 Id.

17 IMO, Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery Against Ships, Art. 2.2, Res. A.1025(26), annex (Dec. 2, 2009), IMO Doc. A26/Res.l025 (Jan. 18, 2010).

18 See ICC 2007 Report, supra note 12, at 3.

19 See, e.g., Archer, Dane & Gartner, Rosemary Violence and Crime in Cross–National Perspective 36–42 (1984)Google Scholar.

20 EU Presidency Statement—Piracy at Sea (May 10, 2001) (statement by Dr. Marie Jacobsson), at http://www.europa–eu–un.org/articles/es/article_233_es.htm (“The EU would like to express its concern over the current underreporting of acts of piracy and armed robbery against ships.”).

21 The 1MB had a larger self–reporting problem in the early years than the IMO. Letter from Cyrus Mody, manager, International Maritime Bureau, to the authors (Jan. 26, 2009) (on file with authors).

22 .See Gjelten, Tom, World News: As Piracy Insurance Gets Pricier, Owners Try Guards (National Public Radio May 8, 2009)Google Scholar, at http://www.npr.org/templates/story/story.php?storyId= 103921419.

23 See Bateman, Sam Outlook: The New Threat of Maritime Terrorism, in Vlolenceat Sea: Piracy in The Age Of Global Terrorism 241, 245 (Peter Lehr ed., 2007)Google Scholar; Pollak, Richard The Cost of Doing Business on the Open Sea, Nation, Apr. 22, 2009, available at http://www.thenation.com/doc/20090511/pollak Google Scholar (“The 1MB estimates that more than half of attacks go unreported . . . .”).

24 Andersen, Brockman–hawe, & Goff, supra note 9, at 2; Bateman, supra note 23, at 245; Pollak, supra note 23. This happens to be quite close to some estimates of the underreporting rate for simple robbery in the United States.See archer & Gartner, supra note 19, at 39.

25 See EU Presidency Statement, supra note 20 (recognizing improvements in IMO reporting).

26 See ICC 2007 Report, supra note 12, at 5, tbl.l.

27 See National Geospatial–Intelligence Agency, Worldwide Threats to Shipping Reports, at http://www.nga. mil/NGAPortal/MSI.portal.

28 Mar. Safety Comm. June 2001 Report, MSC.4/Circ.3, Annexes 1 & 2 (June 30, 2001) (on file with authors).

29 See LOS Convention, supra note 1, Arts. 101(b), (c), & 103.

30 Of all cases in the IMO monthly reports, 889 were not reported to enforcement authorities. We presume, unless there is clear evidence to the contrary, that these cases would not be prosecuted under universal jurisdiction.

31 Mar. Safety Comm. June 2001 Report, supra note 28, Annexes 1 & 2.

32 This means that we examined the response to every incident reported to the IMO, whether or not it met the international legal definition of piracy, in the fifty–three monthly reports that were published between January 1998 and July 2002.

33 According to Cyrus Mody of the International Maritime Bureau, “Incidents in which a vessel was at berth or at anchor would be within port limits [or] territorial waters. All other incidents would be deemed to be in International waters.” E–mail from Cyrus Mody, manager, International Maritime Bureau, to authors (Feb. 3, 2009) (on file with authors).

34 See Mar. Safety Comm. 2008 Report, MSC.4/Circ.l33, Annex 2 (Mar. 19, 2009).

35 See Mar. Safety Comm., 2009 First Quarterly Report, MSC.4/Circ.l39, Annexes 1–2 (Sept. 22, 2009); Mar. Skafety Comm., 2009 Second Quarterly Report, MSC.4/Circ.l40, Annexes 1–2 (Sept. 22, 2009).

36 See Mar. Safety Comm. 2009 Report, MSC.4/Circ.l52, Annex 2 (Mar. 29, 2010).

37 For example, in early 2010 the United States charged a Somali pirate, already under indictment for attacking a U.S. vessel, with additional counts specifying attacks against other, non–American vessels. United States v. Abduwali Abdukhadir Musé, No. 9–CR–512 (S.D.N.Y. filed May 19, 2009) (charging the defendant, inter alia, with piracy against the U.S.–flagged M/V Maersk Alabama), Superseding Indictment (S.D.N.Y. filed Jan. 12, 2010) (adding charge of previously hijacking two non–U.S.–flagged ships); see also Press Release, U.S. Attorney, Southern District of New York, Manhattan U.S. Attorney Files Superseding Indictment Against Alleged Somali Pirate Charging Involvement in Two Additional Hijackings (Jan. 12, 2010), available at http://www.justice.gov/usao/nys/pressreleases/.

38 We do not include prosecution premised on other jurisdictional bases, including prosecutions by the flag state. See supra note 37.

39 Cyrus Mody reports that he is not aware of any instances of UJ prosecutions of piracy during this time period. E–mail from Cyrus Mody, manager, International Maritime Bureau, to authors (May 15, 2009) (on file with authors).

40 These findings are consistent with Alfred Rubin’s conclusion that in the Age of Sail—when piracy was a much more serious menace— universal jurisdiction was used only a “very few times,” which suggests that the modern low rate of prosecution is not a result of piracy’s becoming economically less significant. Rubin, Alfred P. The Law of Piracy 302, 348 (2d ed. 1998)Google Scholar.

41 See, e.g., Philp, Catherine Captives Being ‘Dumped’in Kenya to Avoid Legal Snags, Times (London), June 12, 2009, at 41 Google Scholar, available in Lexis, News Library; Celestine Achieng, U.S. Navy Hands over 17 Pirates to Kenya, Reuters, June 10, 2009, available in id.

42 Interestingly, the absolute number of UJ piracy cases in the last twelve years is on par with the number of European UJ human rights cases resulting in convictions during the same period, though more individual defendants have been convicted of piracy. See Kaleck, supra note 1.

43 Clearance rates refer to the “solving” of a crime by the police. A crime is “cleared,” generally, when a suspect has been arrested and referred for prosecution.

44 Perhaps the best analog to high seas piracy would be attacks against shipping in territorial waters, which are prosecuted under domestic law, but we have not discovered any source for this information.

45 Federal Bureau of Investigation, 2008 Crime in the United States tbl.26 (2009).

46 Lin, Ming–Jen, Does Democracy Increase Crime? The Evidence from InternationalData, 35 J. Comp. Econ. 467, 471 (2007)Google Scholar (citing Interpol figures).

47 Smit, Paul R., Meijer, Ronald F. & Groen, Peter–Paul J. Detection Rates, an International Comparison, 10 Eur. J. Grim. Pol’y & Res. 225, 226 (2004)Google Scholar. To be sure, a variety of problems affect the accuracy of international crime data, and clearance rates in particular. Clearance rates apply only to reported crimes, and as with piracy, underreporting is a major concern. See Lin, supra note 46, at 469.

48 See Martin, Timothy Maritime Piracy: Out of Sight, out of Mind? in Goorangai, No. 2, 1990 Google Scholar (Occasional Papers of the Royal Austl. Naval Reserve Prof. Stud. Program, Aug. 2006); see also Murphy, Martin Piracy and UNCLOS: Does International Law Help Regional States Combat Piracy? in Violence At Sea, supra note 23, at 155, 161–63 Google Scholar.

49 See Press Release, Security Council Authorizes States to Use Land–Based Operations in Somalia, as Part of Fight Against Piracy off Coast, Unanimously Adopting 1851 (2008), UN Doc.S/9541 (Dec. 16, 2008) (statement of U.S. secretary of state Condoleezza Rice) (arguing that failure to bring UJ prosecutions against pirates was because “political will was lacking,” resulting in “impunity” for pirates).

50 See Sakhuja, Vijay Sea Piracy in South Asia, in Violence at Sea, supra note 23, at 23, 29 Google Scholar; Vasan, R. S., Rainbow, Alondra Revisited, A Study of Related Issues in the Light of the Recent Judgment of Mumbai High Court (S. Asia Analysis Group, Paper No. 1379, May 13, 2005), at http://www.southasiaanalysis.org/papersl4/paperl379.html Google Scholar.

51 Navy, Coast Guard Nab Pirates, Rescue Hijacked Merchant Vessel off Goa Coast, Indian Express, Nov. 17, 1999, available at http://www.indianexpress.com/ie/daily/19991117/igel7049.html.

52 Peppetti, Jon D. Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, 109 (2008)Google Scholar.

53 Id.

54 Id. The director of the 1MB hoped that “this case [would] serv[] as a warning that the world will no longer tolerate this crime.” Press Release, International Maritime Bureau, Indian Court Jails Pirates in Breakthrough for Marine Security (Feb. 25, 2003), at http://www.iccwbo.org/collection9/folder22/id2094/printpage.html?newsxsl=&articlexsl=.

55 Vasan, supra note 50.

56 Glass, Charles The New Piracy, London Rev. Books, Dec. 18, 2003, at 3, available at http://www.lrb.co.uk/v25/n24/glas01_.html Google Scholar.

57 Zou, Keyuan New Developments in the International Law of Piracy, 8 Chinese J. Int’l L. 323, 341–42 & n.83 (2009)Google Scholar.

58 Id. at 343.

59 Id.; India Shows the Way in Piracy Battle, Asia Times Online, Feb. 27, 2003, at http://www.atimes.com/atimes/South_Asia/EB27DfO 1 .html.

60 Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1630 (2005), paras. 99–103, UN Doc. S/2006/229, at 29–30.

61 See, e.g., Kontorovich, Eugene Introductory Note to Exchange of Letters Between the European Union and the Government of Kenya on the Conditions and Modalities for the Transfer of Persons Suspected of Having Committed Acts of Piracy, 48 ILM 747, 747 (2009)Google Scholar. In 2010 Kenya dramatically announced that it would no longer accept transfers of pirate suspects, though it has softened these statements in negotiations with coalition states. Kenya Willing to Try More Somali Pirates, Voanews.com, June 1, 2010, at http://wwwl.voanews.com/english/news/africa/Kenya–Willing–to–Try–More–Somali–Pirates–with–Help–from–Wealthier–Nations–95304929.html. At the same time, the Seychelles began trying transferred pirates under universal jurisdiction, though the much smaller country cannot handle the same volume of cases as Kenya. See Seychelles to Set up Courts to Fight Piracy: U.N., Agence Francepresse, May 5, 2010, at http://ca.news.yahoo.eom/s/afp/100505/world/somalia_piracy_shipping_un_seychelles.

62 Twelve Somalis on Trial in Yemen over Oil Tanker Attack, Deutsche Presse–agentur, Sept. 29, 2009 Google Scholar, available in Lexis, News Library, Wire Service Stories File.

63 LOS Convention, supra note 1, Art. 100; Commentary to the Articles Concerning the Law of the Sea, Art. 38 cmt. 2, in Report of the International Law Commission on the Work of Its Eighth Session, [1956] 2 Y.B. Int’l L. Comm’n 265, 282, UN GAOR, 11th Sess., Supp. No. 9, UN Doc. A/3159 (1956).

64 Combating Piracy on the High Seas: Hearing Before the House Armed Services Comm. on Counter–piracy Operations in the U.S. Central Command Area of Operations (Mar. 5, 2009), available in Lexis, U.S. Congress Library, Fed News Service File (statement of Vice Adm. William E. Gortney); see also Groves, Jason Navy Gives Somali Pirates Food and Water. . . Then Lets Them Sail off Scot Free, Daily Mail Online, Jan. 28, 2010, at http://ww.dauymail. co.uk/news/article–1246300/Navy–gives–pirates–food–water–lets–sail–scot–free.html Google Scholar (reporting that of sixtysix suspected pirates captured by Royal Navy in 2009, all were freed); Pop, Valentina EU Mission Alone Cannot Solve Piracy Problem, Says Admiral, Euobserver.com, Feb. 2, 2009, at http://euobserver.com/13/29390 Google Scholar.

65 See Contact Group on Piracy off the Coast of Somalia, 2nd Meeting of Working Group 2 on Legal Issues, Chairman’s Conclusions 1 (May 2009), available at http://www.marad.dot.gov/documents/WG2–2nd_Meeting_chair–conclusions–May_5–6–2009–mtg.pdf (noting the centrality of evidentiary problems); Joint UNODC/ European Commission Program, EU Support to the Trial and Related Treatment of Piracy Suspects 3 (May 2009) [hereinafter EU Support], at http://www.asil.org/files/AnnexE–ECAssistance.pdf; Eur. Pari. Ass., Pol. Aff. Comm., Rapporteur’s Explanatory Memorandum to Report, Piracy—A Crime and a Challenge for Democracies, Doc. 12193, at 12, para. 67 (Apr. 1, 2010), at http://assembly.coe.int/Documents/WorkingDocs/DoclO/EDOCl2193.pdf (“As regards countries such as Somalia, concerned to keep asylum requests to a minimum, some states might be reluctant to take pirates home to submit them to a trial, fearing that they would apply for asylum, or would argue that their return is impossible due to the situation in the country.”); Groves, supra note 64 (noting that the Royal Navy cites evidentiary reasons for releasing pirates); Kontorovich, Eugene “A Guantanamo on the Sea”: The Difficulty of Dealing with Pirates and Terrorists, 98 Cal. L. Rev. 234, 262–66 (2010)Google Scholar.

66 Office of Naval Intelligence, Worldwide Threat to Shipping Mariner Warning Information, para. D3 (Dec. 23, 2009), at http://www.nga.mil/MSISiteContent/StaticFiles/MISC/wwtts/wwtts_20091223100000.txt (reporting Dutch capture of pirates who had been identified by photographs taken by victims, and suggesting prosecution would be unusually easy); Suspected Somalia Pirates Freed by Dutch Navy, BBC News, Dec. 18, 2009, at http://news.bbc.co.uk/2/hi/8420207.stm Google Scholar (reporting same group of pirates freed because the “European Union has tried in vain since their arrest to find a country which would agree to prosecute them”).

67 The Marshall Islands are associated by treaty with the United States, and the EU nations with each other. Indeed, the Somali expedition is the first naval deployment under the European Union’s joint security policy.

68 Ewald Brandt, Prosecution of Acts of Piracy off Somalia by German Prosecution Authorities, Presentation at International Foundation for Law of the Sea Conference, Piracy—Scourge of Humanity (Apr. 24, 2009) [hereinafter IFLOS Conference], at http://www.iflos.Org/en/events.aspx#2669 (defining such interests as “when German nationals have been killed or injured—when a ship flying the German flag has been attacked by pirates—when pirates are blackmailing a German shipping company [and]—when pirates have been detained by the German Navy”); see also [Written] Testimony of Ambassador [Stephen] Mull Before the Senate Armed Services Committee on Combating Piracy on the High Seas 3 (May 5, 2009), at http://www.marad.dot.gov/documents/Mull_05–05–09.pdf (noting, as regards international prosecution of pirates, “America’s willingness to prosecute when our people and interests have been attacked”). Similarly, a Spanish judge ordered Somali pirates captured by that nation’s navy released on the grounds that their crime had too little relation to Spain to warrant prosecution. See Woolls, Daniel Spain: About Face on Piracy Suspects, Chi. Defender Online, May 8, 2009, at http://www.chicagodefender.com/article–4353–spain–about–face–on–piracy–suspects.html Google Scholar.

69 See Scholz, Gert–Jürgen Piracy and Armed Robbery Against Ships: The Policy of the Federal Ministry of Transport, Building and Urban Affairs 1, Presentation at Iflos Conference, supra note 68 Google Scholar.

70 NATO Parliamentary Assembly, Committee on the Civil Dimension of Security, The Growing Threat of Piracy to Regional and Global Security, para. 9, Doc. 169 CDS 09 E rev 1 (2009), at http://www.nato–pa.int/Default.asp?SHORTCUT=1770.

71 See Nakashima, Ellen & Sipress, Alan Singapore Goes It Alone in Maritime Security Drill, Wash. Post, June 2, 2004, at A12 Google Scholar; Institute for the Analysis of Global Security, Chilly Response to U. S. Plan to Deploy Forces in the Strait of Malacca (May 24, 2004), at http://www.iags.org/n0524042.htm.

72 Hand, Marcus Malaysia Rejects US Marine Squad Plan for Malacca Strait, Lloyd’s List, Apr. 6, 2004, at 12 Google Scholar.

73 See, e.g., SC Res. 1851, pmbl. (Dec. 16, 2008) ( Noting the several requests from the [Transitional Federal Government] for international assistance to counter piracy off its coast, including the letter of 9 December 2008 from the President of Somalia requesting the international community to assist the TFG in taking all necessary measures to interdict those who use Somali territory and airspace to plan, facilitate or undertake acts of piracy and armed robbery at sea, and the 1 September 2008 letter from the President of Somalia to the Secretary–General of the UN expressing the appreciation of the TFG to the Security Council for its assistance and expressing the TFG’s willingness to consider working with other States and regional organizations to combat piracy and armed robbery off the coast of Somalia”).

74 See supra note 42.

75 See, e.g., Ratner, Steven R. Belgium’s War Crimes Statute: A Postmortem, 97 AJIL 888 (2003)CrossRefGoogle Scholar; Spain Parliament Passes Law Limiting Reach of Universal Jurisdiction Statute, Jkurist Paper Chase, Oct. 16, 2009, at http://jurist.law.pitt.edu/paperchase/2009/10/spain–parliament–passes–law–limiting.php Google Scholar (amending Art. 23(4) of the Organic Law on the Judiciary, No. 6/1985).

76 See Council of the European Union, supra note 7, at 26, para. 25.

77 Under the Security Council resolutions on Somali piracy, participating states may fight piracy in the territorial sea of Somalia and take appropriate related measures on its land territory. See, e.g., SC Res. 1851, supra note 73, paras. 6, 7; SC Res. 1816, para. 7 (June 2, 2008).