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Wednesday, February 18, 2009

Anti-Piracy Efforts Discussed at DoD Blogger's Rountable

As Lt Cragg has noted in comments to my post below, the transcript and mp3 file for the 17 Feb 09 Blogger's Rountable have been posted here under the headline "Coast Guard Discusses Global Anti-Piracy Efforts." For some reason the DoD site won't let you link to an individual post, so ...you get the full page.

The pdf transcript of the Roundtable is here. MP3 file here.

You should read or listen the conversation in its entirety if you are interested in the legal (and international political) aspects of taking on modern pirates. Here are some highlights, though:
Some of you may already have seen the piracy action plan, which is signed out by the president earlier this year. And it lays out essentially three lines of action for combating piracy. And from my view, almost all of the action taken by the U.S. government, at least in my world of work, fall quite neatly under that -- the piracy plan of action.

And we fall under the three lines of prevention of piratical attacks, responding to piratical attacks and, lastly, prosecution of pirates. If I can start with the first line of attack on the prevention, that essentially focuses on three different areas. One is hardening the target and that's things like private security measures and I can talk about any of these in detail. And that includes all the way to the right end of arms security under certain circumstances as well as a whole basket of different measures taken by merchant vessels to make themselves less vulnerable to pirates. And I can discuss a number of those different things.

It also includes measures like the maritime security patrol area that's been set up in the region to better monitor shipping and, lastly, it constitutes a contact group which has been set up by the United States, or at least led by the United States, which has four working groups under it, that is supposed to put a diplomatic overlay in the international community to this prevention effort.

Along the second line of attack is the -- in responding to piracy attacks -- is the establishment of a piracy coordination center. And I can talk a little bit about that if anybody has any questions -- as well as seizing and destroying vessels.

There's a strategy in place for that; the development of a ship- rider program, which I can discuss at length with you; as well as actions ashore in disrupting pirate revenue.

The last one, disrupting pirate revenue, I really don't have a lot of visibility on that, although I can tell you what I know about that, which is not too terribly much. The last line of action involved prosecution of pirates and that involves negotiation of international agreements and arrangements. I can discuss a number of those including the recently concluded U.S.-Kenya MOU as well as the Djibouti code of conduct, which sets up a regional agreement or understanding for prosecuting pirates.

The implementation of the Suppression of Unlawful Acts at sea convention, or the SUA convention -- there's a number of different very interesting tools that are available under that convention that I can discuss with you at length. And then, lastly, the last piece under that particular line of action in prosecuting pirates is the development of regional capacity. And I can discuss that with you as well, whether it's under the Djibouti code of conduct framework or under various international frameworks.
(In my earlier post, I linked to some earlier posts and outside sources that Captain Michel is referring to -but here they are again: The Kenyan-U.S. Memorandum of Understanding (MOU), Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (SUA Convention) and the Djibouti Code of Conduct are touched on here, here, the United Nations Convention on the Law of the Sea (UNCLOS) (U.S. not a party), and the 1958 Convention on the High Seas(U.S. a party)).

In response to a question from David Axe of War is Boring, Captain Michel elaborated on the legal process of getting captured pirates to trial:
So what it actually involves and the challenges that have been there in prosecuting pirates is, number one, identifying the appropriate legal framework and, from that perspective, there actually is an appropriate legal framework for the prosecution of pirates. It's contained in either customary international law or the 1982 Law of the Sea Convention.

And pirates are subject to universal jurisdiction: i.e., every state on the planet can prosecute pirates. But every state has to have two things: They've got to have domestic law in order to prosecute pirates and they have to have a willingness to prosecute those pirates.

I think we're seeing tested right now in the cases that Mike talked about with the Vella Gulf and the Mahan, the legal frameworks that we've established. The number-one thing is we've signed a memorandum of understanding with the Kenyan government that will facilitate the transfer of pirates ashore to Kenya and then prosecution in a Kenyan court.

The challenges there are not small. We need to ensure that our evidence-collection procedures are lashed up very tightly with the Kenyan judicial system so that the activities that Captain Giglio was talking about -- putting the other evidence packages, collecting statements, collecting video evidence, collecting physical evidence -- are actually going to be admissible in a Kenyan court. Then we've got the additional challenge of actually supporting the trial itself, which may include bringing witnesses from, say, the attacked ship, as well as bringing witnesses from either the Coast Guard LEDET or Navy boarding team who may have been on board that particular vessel.

The challenges are pretty daunting because you may actually have, for example, say, Coast Guard and Navy personnel involved with Somalian pirates who may have attacked a Panamanian vessel with a Filipino crew being tried in a Kenyan court. ***
I will say this, that with an eye to the future, one of the mechanisms that we may want to use in the future is the Suppression of Unlawful Acts convention, which may allow for extradition of pirates to other nations, say, victim states, for prosecution in their courts.
***
(Part of the answer to a question I pose) The Suppression of Unlawful Acts convention has been signed by I think about 78 percent of the world's nations. Virtually all of the maritime states are signatories to the Suppression of Unlawful Acts convention. And what this Suppression of Unlawful Acts convention does, besides requiring the criminalization of the particular offenses against maritime navigation, is it requires states to accept offenders under the convention from masters of ships who capture these individuals. And then, it requires states to either do one of two things: prosecute these Suppression of Unlawful Acts convention violators or extradite them to another country that is willing to prosecute.

The types of activities that are engaged in the current Horn of Africa piracy fall under the definitions of violated acts under the SUA convention. So these types of takeovers that are being done by these pirates -- they're also pirates. These individuals are also SUA violators. And because of that, those people can be delivered to other states -- for example, to Kenya who is a party to the SUA convention. And then, Kenya can either prosecute the individuals under the SUA convention or extradite them to another state. And, for example, one of the states that they may wish to extradite them to is the victim state. That could be a flag state like Panama or a state whose nationals were held captive, say, for example, the Ukraine or the Philippines or even a cargo state whose cargo was taken over. Any of those individuals, if they are party to the SUA convention, can accept those SUA violators and prosecute them.

Now, we're not currently using that. But I know there are discussions underway right now to potentially, for example, use Kenya as an extradition point, bring the pirates through Kenya, put them on a plane, and send them to another country who may be willing to prosecute them. So that's how that mechanism works. And it's a little bit more robust and modern mechanism than exists under customary piracy law. So it's an extra tool in the toolkit that we're hopeful will work in the future.

Q (by E1) Well, let me follow up if I may with a question about the treatment of pirates once they've been captured. There have been a couple of law review articles recently about what to do with these pirates and whether they're subject to Article -- I mean, the Third Geneva Convention or to the anti-torture law. Is there a problem with transferring through a state like Kenya to some other state that may not honor some of these other obligations? Do you see that as an issue?

CAPT. MICHEL: Yeah, I do see it as an issue. As a matter of fact, I know specifically, the Europeans are very concerned about transfer of pirates to other countries. I know the United States is concerned about that as well. We have certain treaty obligations in place. And we would not obviously violate any of our treaty obligations. And that would have to be played against, for example, if a country is a SUA signatory but we're not convinced they're otherwise meeting treaty obligations for fair and humane treatment of individuals, yes, that would absolutely be a consideration as to whether we would turn those individuals over. So in answer to your question, yes, that all plays in the background in determining what a particular course of action is for any particular piratical event.
***
Q. (Bill Nagle from Small Wars Journal) A good number of my questions have been touched on. Let me ask you about the options available to you and the challenges when you are successful and interdict a pirate prior to catching them red- handed. You spoke somewhat to the cracks with the SUA convention. But I know intent to piracy is a rather unsettled. But when you are successful, what can you do on the interdiction side?

CAPT. MICHEL: Well, in answer to your question, we're talking about whether individuals have to actually do piratical acts in order to be pirates.

The answer to that is no. The individuals who are out there outfitted for piracy are just as much pirates as guys who actually commit acts. Nonetheless, this does create additional evidentiary issues as to whether you're actually going to bring a case or not.
And, for those of you interested in private maritime companies offering armed escort services in international pirate infested waters:
Q This is Eagle 1 with Eaglespeak. Can I ask one question, that in the Straits of Malacca, there have been some private escort services and, you know, they're in territorial waters of the adjacent -- the littoral nations. And I know that there is at least one American company and perhaps some other foreign companies that are in the business of offering up private, armed, security/escort ships. Would you care to venture opinion about how that would work?

CAPT. MICHEL: Well, I'll give you an opinion on this: First of all -- well, I guess I'll tell you what my personal thoughts are on that particular issue. First of all, it's interesting you should raise about operation of these activities in the territorial sea; my view for operation of activities in the territorial sea, is that that would likely be subject to the jurisdiction of that territorial sovereign. So activities of the nature you're talking about -- private escort vessels -- in my view, would come under the cognizance of that particular sovereign nation and require some type of at least coordination or probably permission from that territorial sovereign.

I wasn't actually aware that they had any private services operating down there, but if they did, my view would be it would be subject to that territorial sovereign. Now, as far as outside the sea of any particular nation, my view is, I'm not aware of any, at least, U.S. law or international law that would prohibit that type of activity for use of private escort vessels. The use of the armed force, in my view, would be governed by the law of that particular flag-state of that particular vessel and most likely, would fall under the law of self-defense under international law, of which there's a body of international law out there that authorizes individuals to use self-defense either for their protection or the protection of other, innocent individuals. And that can include lethal force if confronted by lethal force. So that's kind of a basic framework of how I would think all that would work.
Thanks to Capt. Charles Michel, Chief of the Office of Maritime and International Law, U.S. Coast Guard Headquarters and Capt. Michael Giglio, Chief of Law Enforcement, U.S. Coast Guard Headquarters, the U.S. Coast Guard and the DoD for this Roundtable discussion.

UPDATE: The Countering Piracy Off the Horn of Africa: Partnership & Action Plan can be downloaded in pdf format here.

UPDATE2: A related story: A Puntland court has delayed the trial of 8 pirates captured by the French pending production of "solid evidence" supporting the case against them.

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