Criminal Acts at Sea

By describing piracy under the law of nations in its jurisdictional aspects, as sui generis, international law regards piracy as unique [1]. Piracy is the original crime of universal jurisdiction. All nations were endowed with authority to assert jurisdiction over pirates since the crime is so heinous and ships of all nations are at risk. Pirates “attack the rights of mankind, and menace the lives and property of all who resist their unlawful acts.” Having renounced all the norms and mores of human progress and enlightened government, pirates were considered by the common law to have reverted to a “savage state of nature”. The criminal enterprise was held to be tantamount to a declaration of war against mankind. In response, all nations were deemed to be free to declare war against piracy; indeed not only did every community enjoy the right of self-defense against piracy, but all civilized states had an af?rmative obligation to suppress the crime.

One of the central features of the development of Anglo-American law against piracy is the displacement of the normal rule that a ship on the high seas is subject only to the jurisdiction of its own ?ag state, or state of vessel registry. Generally, the theory of exclusive ?ag state jurisdiction protects a vessel from being stopped or boarded by the warship of any other state. In cases of piracy, however, navy or law enforcement ships of any nation were deemed to have authority to assert jurisdiction over any pirate ship on the high seas. Since piracy was considered an exception to the general rule, by the 19th century it became particularly important for the crime of piracy to be more precisely de?ned in order to delineate the circumstances in which warships could board foreign-?agged vessels suspected of piracy. By crafting a basic checklist for approaching and visiting (boarding) ships suspected of piracy, English notions of international law sought to avoid any interference with vessels exercising legitimate freedom of the seas.

With a relatively free interchange of water and aquatic life among the oceans, we should think in terms of the seas as being a single, unfathomable, and vast body of water [1]. The interconnected quality of the seas has made theoceans an essential route for regional cabotage (intracontinental) shipping and transcontinental voyages, including commercial trade; a regular domain of military training, maneuver, and strategic mobility; and a vector for migration, smuggling, and traf?cking; and the transmission of disease.

As a sphere principally useful for mobility shipping is by far the most ef?cient method of transporting large quantities of heavy cargo and material long distances the oceans have had a profound effect on world politics, demographics, and economics. Large population centers emerged along oceans and rivers. Furthermore, in ancient time as well as the present, the oceans serve as the planet’s geopolitical fulcrum. Early civilizations emerged along the Nile delta and the fertile Tigris-Euphrates watershed. In the modern period, Tokyo, New York, and London provided pathways to the sea. Today most of the world’s large, primate cities lie along the coastlines. Most of the ?sh congregate near the shore, where they can be more easily caught for food, and most of the shipping runs along the coast. Three-quarters of the world’s population now assembles along the shorelines. Although the global oceans are interconnected to form one immense body of water, the social and political density of regional and coastal seas means that most piracy occurs within 200 miles of the shore. The unity of the oceans is the simple physical fact underlying the dispositive value of sea power to shape events on the land.

Most maritime pirates seek to steal goods or cash on board a ship, seize the ship and its cargo for resale, or take the master and crew hostage and hold them for ransom. Stealing cash, equipment, electronics, clothes, or even the ship itself, is the favored model of piracy in most of the world, including Southeast Asia, South Asia, South America, and the Gulf of Guinea in West Africa. For the most part, piracy involves armed robbery beyond the territorial sea of a coastal state, and it is generally apolitical, except perhaps in the Gulf of Guinea. Along the coastline of Nigeria, insurgents use piracy as a means to compel redistribution of the country’s oil wealth. Drilling rigs and offshore installations have been attacked and foreign oil workers have been kidnapped. Nigerian pirates seek to siphon wealth from the country’s oil industry as a means of altering the political map of the country, but in most places piracy is a crime of opportunity and gain, not a political act.

No fewer than 80 percent of world’s trade carried out globally travels by sea [2]. Presently, the International Communities have witnessed one of the world’s oldest crimes against sea trade - sea piracy. In the main, African waters harbor important seaways of growing maritime concerns, namely the Coast of the Horn of Africa and the Gulf of Aden; East Coast of Africa, and the Gulf of Guinea; West Coast of Africa. These waterways and availability of ports have becomes mine field for sea pirates. From 2007 to date, maritime operators have witnessed intense attacks. The attacks have been largely concentrated in waters off the coast of Nigeria and Somalia.

Piracy off the coast of Somalia, although has reduced significantly of late, has nonetheless drawn the attention of international community to a great extent [3]. The piracy itself was a product of Somalia’s lack of capacity to govern itself and secure its coastal regions. The failure of the then incumbent Somali Government of General Siad Barre to control the growing discontentment among the thousands of Somalis led to internal unrest and consequently produced civil war that is yet to see any concrete solution. Interesting to note in this development was the poaching by international shipping vessels off Somali coast that prompted to resorting to piracy by those Somalians whose livelihooddepended on fishing and who were deprived of it owing to the incapacity of the state to secure them the livelihood that they very much banked on.

The pirates operate in a gang of four to six people and are organized along networks. Their method of operation appears to be haphazardly executed while on shore their tactic of hijacking vessels and holding them, along with crew and cargo, to ransom is relatively sophisticated. The lawless conditions in Somalia and one may add with the cooperation of fragile government authorities especially in Puntland, where it is possible to move a ship beyond the reach of rescue or retaliation, make it an ideal place for ransom based piracy to thrive. The ransom income of Somali pirates has probably been substantial.

Capturing ships and holding them and their crews for ransom since the 1990s has been carried out by armed groups acting mostly in the territorial sea and claiming to protect Somalia’s ?shing resources, which were in effect pillaged by foreign ?shermen, and the coastal waters, which were used as a dumping ground for waste in the absence of a government able to enforce the law [4]. Taking advantage of the continuing lack of an effective government, and not without connection with terrorist groups and with the political and armed ?ghts going on in Somalia, pirate activity then absorbed a growing number of people including ?shermen expert in handling boats and became ever bolder. It now represents a very serious menace to navigation coming from the Suez Canal and going through the Gulf of Aden to the narrow area between the Horn of Africa and the Arabian peninsula. In these sea areas off the Somali coast, as well as in those south of the Horn of Africa, piracy has developed, attacking ships even at a great distance from the coast. The success in capturing ships and crews and in obtaining substantial amounts of money as ransom, as well as their ef?cient way of dealing with money so obtained, have again made pirates, sub specie of the Somali pirates, the hostes humani generis. The danger to navigation through a choke-point of international traf?c, as well as the outrage aroused by pirate attacks on ships carrying humanitarian supplies to the Somali population, have been decisive in alarming states all over the world.

Though the case of Somalia is very exceptional, it is the first time the in- ternational community seriously attempted to take actions [5]. This is important as piracy is an ever shifting crime: if it decreases somewhere, it increases somew- here else, it is always present, so it would be very important to implement these strategies in different regions with regard to the specific characteristics of that region as obviously different solutions are needed in case of Asia or in the Gulf of Guinea. However this is a common ground and many lessons learnt in con- nection with Somalia could be adaptable.

Throughout the 20th century, codification efforts relating to piracy were largely determined by the perception that piracy amounts to an historical phenomenon hardly in need of elaborate codification, rather than an imminent problem of the modern world [6]. To some extent, piracy was not even perceived as being worthy of any specific codification at all and, accordingly, the rules that ultimately found their way into UNCLOS’ (United Nations Convention on the Law of the Sea) piracy regime, were never the subject of any in-depth discussions. For the most part, the rules relating to piracy were simply importedfrom previous draft conventions or earlier treaties, with all their intricacies and loopholes.

Yet, despite the perception of piracy’s outdatedness prevailing at the diplomatic conferences on the law of the sea in 1958, 1960 and 1982, violence against ships and persons on board, continued to pose a threat throughout the 20th century. This is likely to hold true in the 21st century. There will be plenty of opportunities given that in the course of globalization the international shipping industry has grown exponentially, becoming itself a motor of globalization.

Every major upsurge in maritime violence in the more recent past has brought to the fore the failure to remedy the deficiencies and shortcomings of the legal framework pertaining to piracy during earlier drafting exercises. Yet, there has been little, if any, momentum towards a reform of the piracy regime contained in the UNCLOS. Maritime interception operations (in particular in view of the ever increasing importance of unimpeded navigation of a growing ship industry) are an especially sensitive issue, touching directly upon States’ sovereign interests over their coastal waters and over ships flying their flag.

The finding that States commonly accord preference to situation-specific solutions over a universal approach appears to hold true not only with regard to piracy. The largely consent-based, context-specific modus operandi pursued in relation to piracy can also be observed with regard to other maritime security threats, such as the smuggling of drugs or weapons and the trafficking of persons. Various bilateral agreements between the United States and numerous Caribbean States, for example, concerning the repression of illicit drug trafficking, underline a geographically limited and context-specific approach that is tailored towards a particular maritime problem. Similarly, under the umbrella of the Proliferation Security Initiative (PSI), bilateral agreements have been favored over a more general expansion of universal maritime enforcement competencies by way of further codification.

Of course, over time these various initiatives will lead to an increasing amount of State practice that could in theory ultimately result in the evolution of customary law rules relating to law enforcement powers against acts of violence at sea. However, one may remain doubtful with regard to any such evolution in practice. Thus far, practice in relation to bilateral drug interdiction treaties that predate the Proliferation Security Initiative has, as far as can be seen, not led to the development of novel customary law. Although some of these treaties are rather similar and drafted on the basis of the same model, overall their number remains limited, differences in drafting exist and all of these treaties are fundamentallypremised on the consent of the flag State. Certainly, for the time being, nothing on the universal level confirms the evolution of customary law rules that would go beyond the enforcement competencies laid out in UNCLOS.

In the case of modern security risks, such as piracy and terrorism, the aggressor is a non-state actor since pirates are largely “normal” criminals with the aim of opportunistic economic gain rather than political ends [7]. Terrorists and insurgents may be politically motivated but normally are not the representatives of an existing State. Thus, the traditional concept of self-defense cannot be invoked directly by State authorities in their fight against non-traditional or asymmetric attacks or threats. On the other hand, pirates and terrorists often make use of military weapons so that the criterion of an “armed attack” is met. Moreover, the argument is raised that if a failing State is unable or unwilling to assert control over terrorists (and pirates) in its territory, a victim state of terrorist attacks would be permitted to act in self-defense. It is this kind of “reasonable” arguments serving the basic interests of states that pave the way as the law develops.

The Law of the Sea (United Nations 1983) provides a contemporary framework for oceans governance that has implications for maritime security practices and encourages collective and cooperative approaches [8]. The common need among multiple actors for “good order at sea” underpins the requirement to provide for the safety and security of maritime trade, and supports aspirations to exploit and conserve marine resources. These requirements are added to interstate competition as foundational constructs of maritime security. Dealing cooperatively to address threats (or risks) to good order at sea that include “piracy and armed robbery against ships, maritime terrorism, illicit trafficking in drugs and arms, people smuggling, pollution, illegal fishing and marine natural hazards” brings together traditional concepts of sea power with contemporary cooperative security imperatives in the maritime domain.

Universal jurisdiction over piracy has been accepted under international law for many centuries and constitutes a long-established principle of the world community [9]. All states may both arrest and punish pirates, provided of course that they have been apprehended on the high seasor within the territory of the state concerned. The punishment of the offenders takes place whatever their nationality and wherever they happened to carry out their criminal activities. 

Piracy under international law (or piracy jure gentium) must be distinguished from piracy under municipal law. Offences that may be characterised as piratical under municipal laws do not necessarily fall within the definition of piracy in international law, and thus are not susceptible to universal jurisdiction (depending of course upon the content and form of international conventions). Piracy jure gentium was defined in article 15 of the High Seas Convention, 1958 (and reaffirmed in article 101 of the 1982 Convention on the Law of the Sea) as illegal acts of violence, detention or depredation committed for private ends by the crew or passengers of a private ship or private aircraft and directed against another ship or aircraft (or persons or property therein) on the high seas or terra nullius. Attempts to commit such acts are sufficient to constitute piracy and it is not essential for the attempt to have been successful.

Piracy jure gentium was a special source of national jurisdiction which permitted states to prosecute individuals under their municipal law; international law did not directly impose obligations on individuals in respect of piracy; rather, it endorsed the power of states to prosecute individuals.This is based on a misconception of piracy,whichwas‘not a legal crime or offence under the law of nations’ but rather a ‘special ground of state jurisdiction’ [10]. The pirate was designated as hostis humani generis, enemy of all mankind, and could be taken to have‘disclaimed all state allegiance’. Furthermore, piracy was committed on the high seas, outside the jurisdiction of any one state. On that basis, the pirate was subject to the jurisdictiono fan ystate,which could prosecute the offence under its municipal law. But pirates were tried by national courts and punished under national law, not international law: international law simply endorsed piracy as a special source of national jurisdiction.

The universality principle is closely related to the jus cogens doctrine and suggests that every state has jurisdiction over crimes which are universally recognised as, and subject to, international contumely and damnation as crimes against humanity, such as torture (howsoever art and euphemy describe it), genocide and, nowadays, terrorism (howsoever that may be de?ned) [11]. When such heinous crimes are involved, the universality principle provides that any nation has universal jurisdiction. The ancient crimes coming under this principle are piracy, naval mutiny and slave trading. Within those cases, the principle has been used to justify jurisdiction for the proscription, prosecution and punishment within the past century of piracy and slaving. Unlawful offences must be committed for ‘private ends’ (the private ends requirement) [12]. It follows that piracy cannot be committed by vessels or aircrafts on military or government service or by insurgents. Yet the meaning of private ends is not wholly unambiguous. Two different views can be identified on this matter. According to the first view, any illegal acts of violence for political reasons are automatically excluded from the definition of piracy. According to this view, acts are tested on the basis of the motives of an offender. However, the interpretation of private ends will rely primarily on the subjective appreciation of the offender. In the second view, all acts of violence that lack State sanction or authority are acts undertaken for private ends. According to this view, in essence, the private ends requirement seems to overlap with the private ship requirement. In practice, however, lack of State status may not automatically make the actors pirates.

The essence of piracy under international law is that it must be committedforprivateends [13]. In other words, any hijacking or take over for political reasons is automatically excluded from the de?nition of piracy. Similarly,any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category. 

Any and every state may seize a pirate ship or aircraft whether on the high seas or on terra nullius and arrest the persons and seize the property on board. In addition, the courts of the stat carrying out the seizurehavejurisdictiontoimposepenalties,andmaydecidewhatactiontotake regarding the ship or aircraft and property, subject to the rights of third partiesthathaveactedingood faith. Thefactthateverystatemayarrest and try persons accused of piracy makes that crime quite exceptional in internationallaw, where so much emphasisis placed upon the sovereignty and jurisdiction of each particular state within its own territory.The ?rst multilateral treaty concerning the regional implementation of the Convention’s provisions on piracy was the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia in 2005, which calls for the establishment of an information-sharing centre in Singapore and extends the regulation of piracy beyond the high seas to events taking place in internal waters, territorial seas and archipelagic waters.

The shipping industry cannot wait for these political and law enforcement measures to materialize to reduce piracy and improve safety [14]. The international law enforcement community is not necessarily well suited to address piracy, particularly when dealing with states that are at risk of failure. This is complicated by legal constraints and delays associated with defining and codifying piracy, wrangling diplomatic efforts, financing prosecutions, crafting international agreements and establishing legal jurisdiction. Although a long-term strategy is important to regional stability, the daily approach to address piracy requires a tactical effort that can be applied when vessels are threatened. The world’s oceans are vast, remote, unassigned spaces that make piracy easier to perpetrate, harder to detect and prevent, but not inevitable. There are methods that merchant marines and their vessels can employ to protect themselves that alter the transit environment and their immediate situational perspective before an attack and while an attack is underway. The situational crime prevention (SCP) approach is informed by analysis that focuses on the crime, not the criminal. It values prevention over arrest and empowers the individual over the government to construct a safer environment when traditional law enforcement or military resources are not available.

The high seas are an asset to all States, principally as a highway for international trade, a status preserved by the doctrine of freedom of navigation on the high seas and the exclusive jurisdiction of each ?ag State over its vessels on the high seas [15]. Crimes of violence on the high seas may endanger both the safety of navigation of individual vessels and the general public good provided by freedom of navigation. The classic criminal actor on the high seas is the pirate and, rhetorically at least, the pirate is often invoked as the original international criminal. The con?ation of piracy with much more serious international crimes tends to obscure the function served by the law of piracy protecting freedom of navigation. Certain gaps in the law of piracy have, in part, been cured by later treaty law concerned with offences against the safety of navigation on the high seas more generally. 

From the point of view of the law of the sea the critical part of the law of piracy is that it is an exception to the otherwise exclusive jurisdiction of the ?ag State. That exclusive jurisdiction is, in effect, immunity from interference by foreign governments with a vessel on the high seas and the mechanism by which freedom of navigation on the high seas is upheld. The point is not that piracy has a specially heinous character comparable to war crimes (it often involves quite minor acts of violence); rather, without such a jurisdictional rule pirates, precisely because they operate on the high seas, could readily evade those States otherwise having jurisdiction over their conduct, such as ‘the ? ag state of their ship, or their national State’. A good argument may thus be made that piracy is better seen as providing the prototypical transnational crime (as pirates cross the jurisdictional boundary between vessels on the high seas) rather than the prototypical international crime (being those of concern to the international community as a whole due to their unique moral gravity).

The criminal prosecution of acts referred to as piracy and armed robbery at sea in the Security Council Resolutions, requires the existence of a substantive criminal norm defining the prohibited conduct and threatening it with punishment [6]. In the case of piracy, it is a controversial question whether such a norm exists under international law, namely, whether Article 101 UNCLOS constitutes an international crime on the basis of which a piracy suspect can be prosecuted in a domestic criminal court, or whether criminal norms on piracy have to be derived from municipal law. With regard to armed robbery at sea, no unified definition exists, let alone, an international crime that could serve as a basis for a domestic prosecution. Thus offenses defined in other international treaties, such as the SUA (Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation) or HostageConventions, are analyzed as to whether they are relevant for the prosecution of conduct amounting to armed robbery at sea.

It is not easy to determine which State(s) can exercise extraterritorial jurisdiction over piracy and armed robbery at sea, and on the basis of which substantive criminal norm(s) they may do so. A single pirate attack potentially fulfills several offense descriptions and generally affects a multitude of States, which could potentially claim criminal jurisdiction. In practice, it is not uncommon that the attacked vessel is flying the flag of one State but is owned by a company incorporated in another State. Quite often, the containerized cargo or bulk commodities on board such a ship are the property of corporations having their principal place of business in yet other States. The panoply of jurisdictions involved is further enlarged by the multinational composition of crews and passengers aboard and by the fact that the nationality of alleged offenders is usually different from that of their victims. Finally, yet another jurisdictional layer may be added when the respective law enforcement vessels are operating jointly with embarked law enforcement officials from third States. However, in practice States seem to be rather reluctant to prosecute alleged pirates and armed robbers at sea and often decide not to exercise their criminal jurisdiction despite being competent. Hence, positive conflicts of competence generally do not occur.

It is often asserted that Article 101 UNCLOS defining piracy establishes a crime under international law on which criminal prosecutions could be based. Yet, in fact there is little evidence to support such an assertion. The legal experts involved in the elaboration of the Harvard Draft Convention on Piracy thoroughly analyzed the debate on this issue as it stood in 1932 and concluded that only a minority of scholars assumed that piracy is an international crime. The prevailing opinion at that time was that piracy constituted, not an international, but a municipal crime only. Thus, the Harvard Draft Convention was built on the theory that “piracy is not a crime by the law of nations. It is the basis of an extraordinary jurisdiction in every state to seize and to prosecute and punish persons, and to seize and dispose of property, for factual offences which are committed outside the territorial and other ordinary jurisdiction of the prosecuting state.”

The States party to the SUA convention recognise the need to develop international co-operation between states in creating and implementing practical measures for the prosecution and punishment of perpetrators of unlawful acts against the safety of maritime navigation [16]. Article 8 of the SUA convention defines the roles and responsibilities of the master of a ship, the flag state and the receiving state in delivering any person believed to have committed an offence under Article 3 of the convention to the authorities of any other state party to the convention (Article 3 includes the hijacking of a ship). Article 12 places an obligation on state parties to assist one another in connection with criminal proceedings brought in respect of offences including, amongst other, the hijacking of a ship. Such assistance includes the obtaining of evidence at their disposal necessary for the proceedings. This obligation would imply that any evidence subsequent to relevant court proceedings would need to be protected from contamination by the master of the vessel for such evidence to be admissible in court proceedings.