Modern Day PiracyCurrent Events, Legal Issues, and Political

Responses

RADM William BaumgartnerJudge Advocate General

September 21, 2009

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Overview of Modern Day Piracy

• Straits of Malacca and Singapore

• Gulf of Guinea

• Off the Coast of Somalia (HOA Region)

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2008 Worldwide Pirate Attacks

• 49 vessels hijacked• 46 other vessels fired

upon• 889 crewmembers taken

hostage• 32 crewmembers injured• 11 crewmembers killed• 21 crewmembers missing

– presumed dead

“Where there is a sea, there are pirates.” - Greek proverb

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SOM – HOA Piracy Comparison

Straits of Malacca• Small geographic area• Nearly all within

territorial waters• Functioning

governments (patrol forces, surveillance, judicial)

• “Hit and run” property crimes, kidnapping, or complete takeovers

Horn of Africa• Large geographic area• Mostly international

waters• No functioning

government in Somalia; others vary in capability

• “Open and notorious” hostage taking (sanctuary)

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Seychelles

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M/V FainaHijacked 28

September 2008, with its cargo of 33 T-72 tanks and other weaponry.

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M/V Faina

Released 5 February 2009 after paying $3.2 million.18

M/T Sirius Star

– Saudi super-tanker loaded with $100 million worth of crude oil

– Hijacked 15 November 2008

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Released 11 January 2009 - $3 million ransom paid 22

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Piracy is big business in Somalia

– Ships and crews are hijacked for ransoms

– Average detention: two months

– Average ransom: $1 - $2 million

– $80 million ransom paid to Somali pirates since 2008 (est.) 33

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Legal Analysis of Piracy

• Principles of jurisdiction

• Piracy as a universal crime

• Domestic legislation

• 1988 Convention on the Suppression of Unlawful Acts against Maritime Navigation (SUA)

• United Nations Security Council Resolutions

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PRINCIPLES OF JURISDICTION

• TERRITORIAL• NATIONALITY• PROTECTIVE• UNIVERSAL• PASSIVE PERSONALITY

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Piracy – What is it?UNCLOS Article 101

Piracy is defined as any illegal acts of violence or detention, or any act of depredation, committed for

private ends by the crew or the passengers of a private ship … and directed

(i) on the high seas against another ship… or against persons or property on board;

(ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

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Piracy – Powers and Obligations

UN Convention on the Law of the Sea

Article 100All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.

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RIGHT OF VISIT - ART 110, LOSC

• Warship May Board Foreign Vessel on High Seas / EEZ if Reasonable to Suspect:– PIRACY– SLAVE TRADE– UNAUTHORIZED BROADCASTING– WITHOUT NATIONALITY– the ship is in reality THE SAME

NATIONALITY AS WARSHIP

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Piracy – Powers under UNCLOS

• Article 105 UNCLOS provides that –

• Every State may:– Seize a pirate ship or aircraft or a ship or aircraft taken by pirates;

and – Arrest the persons and seize the property on board.

• The courts of the State which carried out the seizure may:– Decide upon the penalties to be imposed; and– May determine the action to be taken with regard to the ships,

aircraft or property, subject to the rights of third parties acting in good faith.

• Article 107 UNCLOS provides that any warship or military aircraft, or other clearly marked government vessel may seize pirates. 42

UNIVERSAL PRINCIPLE• Crimes of Universal Jurisdiction

– Piracy– Slave Trade– War Crimes– Genocide– Crimes Against Humanity– Aircraft Piracy

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NATIONAL LEGISLATION

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IMPORTANCE OF NATIONAL LEGISLATION

• International Law - What May Be Regulated

• Domestic Law - What Is Regulated

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Essential Elements for National Legislation: Implementation• Ensure courts are

competent to hear piracy offenses

• Process to handle claims for compensation

• Assisting Other Nations

• Facilitating Transfer Logistics

• Incident Reporting Requirements

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THE 1988 CONVENTION FOR THE SUPPRESSION OF UNLAWFUL

ACTS AT SEA (SUA)

• 154 of the world's States are parties• Establishes a framework whereby a coastal

State Party is obliged to accept custody of suspected SUA offenders

• The coastal State Party is required to investigate and then prosecute or extradite

• SUA offenses are violence against maritime navigation (may overlap with piracy offenses)

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UNITED NATIONS SECURITY COUNCIL RESOLUTIONS

• Most recent is 1851(2008)• IMO Assembly Resolution (A.1002(25)) was

part of foundation for the series of 2008 UNSCR’s

• 1851(2008) authorizes into Somali territorial sea territory and to fight counter piracy (with consent of TFG)

• Will be revised/renewed in the coming months

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Counter Piracy Efforts in the HOA Region

• Military/Operational

• Political/Diplomatic

• United States Government Counter Piracy Plan

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Australia

Belgium

Canada

China

Denmark

France

Greece

Germany

India

Iran

Italy

Japan

Malaysia

Nether-lands

Norway

South Korea

Russia

Saudi Arabia

Singapore

Spain

Sweden

SwitzerLand

Turkey

United Kingdom

United States

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The Coast Guard Role

Authorities/Missions• Armed Force at all times• Primary U.S. maritime law enforcement

agency with worldwide authority• Regulate maritime industry for safety &

security• Primary U.S. voice at International

Maritime Organization (IMO)• U.S. Competent Authority for primary

international maritime security instruments

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Prevention

Response

Prosecution56

Prevention

•Establish Contact Group

•MSPA

•Vessel security measures

•Strategic Communications

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Response

•Counter-Piracy Coordination Center

•Seize/Destroy Pirate Vessels

• Interdiction Capable Presence

•Shiprider/Regional Agreements

•Dismantle Pirate Bases Ashore

•Disrupt Pirate Financing

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Prosecution

•Custody and Prosecution Agreements and Arrangements

•Encourage SUA Jurisdiction

•Encourage Other Conventions Use (TOCC, Hostage Taking, Terrorist Financing, etc.)

•Enhance Regional State Prosecution Capabilities

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Kenya

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Prosecution – M/T POLARIS

Armed Self Defense – Legal and Practical Issues and Concerns

• Armed security has been effective• Legal concerns include:

– Direct and vicarious criminal liability– Civil liability– Potential difficulties in obtaining insurance – Compliance with arms laws

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Questions???

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