Philippine Sea

Showing posts with label Lawfare. Show all posts
Showing posts with label Lawfare. Show all posts

Tuesday, October 16, 2012

Fighting Pirates: A Lawerly Debate

From MaritimeTV, a couple of maritime legal thinkers discuss Armed Guards on Vessels. From May, 2012, and it seems a little OBE but still worth watching.

Hat tip to: The Marine Advocate Online.

You can order Defending Against Pirates here for $75 (downloadable pdf) or as a more expensive hard copy.

You might also be interested in a book to which I contributed, 
Maritime Private Security
Market Responses to Piracy, Terrorism and Waterborne Security Risks in the 21st Century
Edited by Patrick Cullen and Claude Berube, available here or from Amazon here.

Friday, May 18, 2012

IMO | Maritime Safety Committee re "Arms Aboard Ships"

IMO | Maritime Safety Committee (MSC), 90th session, 16 to 25 May 2012 (High-level segment on arms on board):
Opening address by IMO Secretary-General Koji Sekimizu
May 16, 2012
MSC 90
Secretary-General Koji Sekimizu's opening address to the High-level segment on arms on board
16 May 2012

Thank you, Mr. Chairman.
Excellencies, distinguished delegates,

As I mentioned in my opening remarks to the meeting, this is the first ever high-level segment of the Committee and its importance is underscored by the presence here today of the President of the Assembly and the Council Chairman. I am particularly pleased to welcome and receive the support of the host Government through the participation of the Secretary of State for Transport – the Right Honourable Justine Greening MP – and of many Ambassadors, High Commissioners, Vice Minsters and others who have indicated their wish to participate in this very important debate – I wish to express my sincere appreciation to you all.

Reports received by the Organization indicate that, although the number of attacks by pirates continues to increase, the proportion of attacks that are successful has decreased. This may be due to a number of factors, including naval protection and better implementation of IMO guidance and Best Management Practices, including the use of Privately Contracted Armed Security Personnel (PCASP). There is anecdotal evidence that the number of ships carrying firearms has increased. On the basis of declarations of weapons carried and on their observations, naval forces estimate that around 25% of ships in the High Risk Area are carrying firearms, however it is also believed that a number of ships are not declaring the presence of private armed security for various reasons, including the lack of flag State approval.

The carriage of firearms on board merchant ships is a complex legal issue with Member States taking diverse positions. The Committee has determined that the carriage of armed personnel is a matter for flag States to authorize, however it has also accepted that their carriage has legal implications for coastal and port States, particularly with respect to the carriage, embarkation and disembarkation of firearms and security equipment in areas under the jurisdiction of such port or coastal States.

Resolution A.1044(27) on piracy and armed robbery against ships in waters off the coast of Somalia endorses the position of this Committee that seafarers should not carry firearms and that the carriage of armed personnel on board ships for enhancing their protection should be left to flag States to decide, once a thorough risk assessment exercise has been carried out and following consultations with the shipowners concerned.

Amongst other things, the resolution strongly urges Governments which have not already done so:

.1 to decide as a matter of national policy, whether ships entitled to fly their flag should be authorized to carry privately contracted armed security personnel and, if so, under what conditions; and

.2 in their capacity as port or coastal States, to decide on their policy on the embarkation, disembarkation and carriage of privately contracted armed security personnel and of the firearms, ammunition and security-related equipment, and to promulgate it widely to other Member Governments, to industry, and to the Organization.

As a truly global industry with many stakeholders, shipping benefits from harmonization of procedures, adoption of common minimum standards and clarity with respect to national legal regimes. However, while progress has been made on developing general guidance, policy on the use of Private Security Guards is not common among Member Governments and, across the shipping industry. There are no agreed minimum performance standards for Private Security Guards and ships using them are subject to many, diverse legal regimes at present.

In order to stimulate debate on this important subject, we have issued MSC 90/20/5, which describes the current situation and outlines a number of related policy issues requiring further deliberation by this Committee. While recognizing the reality of the situation in which Private Security Guards are employed and the diverse positions of Governments, there is a need to consider how the international community should deal with the issue of Private Security Guards and, in particular, the need to arrive at practical solutions to the issue.

Since the issue of Private Security Guards on board ships is of utmost sensitivity and requires detailed consideration of the policy issues involved, I considered it particularly helpful and appropriate, under this agenda item, for the Committee to engage in a high-level policy debate on this topic.

I invite all Member Governments representing flag, port and coastal States and States of seafarers, and shipowners to share their views on this issue of arms on board which is now critical for the international maritime community.

The outcome of your discussions today will provide the clear policy direction required for subsequent discussions on related, technical documents that the Committee and its Maritime Security and Piracy Working Group will be considering under this agenda item.

***

We have been dealing with piracy problems off the coast of Somalia for 5 years now.

Despite serious efforts by Governments, navies and the industry, the international community has not been able to stop Somali piracy.

We have seen significant developments over the last 4 years:

Sunday, March 11, 2012

Midrats: Episode 114: Law and the U.S. Military ( 5pm Eastern, Sunday 11 March)

The last decade has brought two aspects of the law and its interaction with the U.S. military in to sharp focus: first "Lawfare" in the application of force overseas, and second the proper constitutional role of the U.S. military internal to the United States and towards its civilian population.

What has changed, where do we stand today, and where are are we headed?

Our guest will be Charles J. Dunlap, Jr., Major General, USAF (Ret.), the Executive Director, Center on Law, Ethics and National Security and a Visiting Professor of the Practice at Duke University School of Law.

Join us live if you can (click here), but if you miss the show you can always listen to the archive at blogtalkradio - or, in the alternative, get the show (and download the archive to your audio player) is to get a free account and subscribe to the podcast on iTunes.

Saturday, May 21, 2011

Fearless Navy Bloggers Take to the Air: Episode 72 Lawfare and the Long War 05/22 on Midrats

Modern warfare and counter-terrorism bump up against international law and the "law of war" on a moment to moment basis - and that's the subject of this week's Midrats show - Episode 72 Lawfare the Long War 05/22 by Midrats on Blog Talk Radio:
Never in our history have we fought a war where law, lawyers, and layers of legalese have impacted all levels of the war, Political, Strategic, Operational, and Tactical.

Why do we find ourselves here and in what direction are we going?

From Pakistan, Afghanistan, Iraq, Libya and even domestically, the legal definition of the use of military power is evolving.

To discuss the impact of Lawfare for the full hour with Sal from the blog "CDR Salamander" and EagleOne from "EagleSpeak" will be David Glazier, CDR USN (Ret.).

David is a Professor of Law at Loyola Law School in Los Angeles. Prior to Loyola, he was a lecturer at the University of Virginia School of Law and a research fellow at the Center for National Security Law, where he conducted research on national security, military justice and the law of war. He also served as a pro bono consultant to Human Rights First.

Before attending law school, Glazier served twenty-one years as a US Navy surface warfare officer. In that capacity, he commanded the USS George Philip (FFG-12), served as the Seventh Fleet staff officer responsible for the US Navy-Japan relationship, the Pacific Fleet officer responsible for the US Navy-PRC relationship, and participated in UN sanctions enforcement against Yugoslavia and Haiti.

Glazier has a JD from the University of Virginia School of Law, an MA from Georgetown University in government/national security studies, and holds a BA in history from Amherst College.
So, with experience ranging from warrior to law of war scholar, Professor Glazier has some interesting (and sometimes unexpected) views on the matters described above.

Join us this Sunday at 5pm Eastern as we delve into the world of "lawfare." I promise that the name of Hugo Grotius will be invoked somewhere along the way.

Friday, April 15, 2011

Somali Pirate Negotiator Nabbed in Somalia by U.S. forces, Interesting Legal Issues to Follow

Four dead Americans on an American yacht, and now the negotiator for the pirates involved in that messy ended has been arrest in Somalia and is facing U.S. charges, as set out here:
Mohammad Saaili Shibin is the first alleged pirate to have been arrested on-shore in Somalia. He was brought to the United States in early April, but was indicted by a federal grand jury earlier for his alleged role in the killings.

The Wall Street Journal reported that US forces, with the help of Somali army, had apprehended the alleged pirate on land. It was the first time that the US had carried out a similar operation on-shore.

Neil MacBride, US Attorney said "The arrest of Mohammad Shibin is a significant breakthrough in the United States' battle against Somali pirates."

"Today marks the first time that the US government has captured and charged an alleged pirate in a leadership role - a hostage negotiator who operated in Somalia.

"We hope that this indictment will strike at the heart of the piracy business and send a strong message to all pirates that they are not beyond the reach of the FBI, whether they board the ships or remain on-shore in Somalia," he said.

Shibin has been charged in US federal court in Norfolk, Virginia, over the alleged pirating of an American yacht, and the taking of four US citizens hostage.
I guess we must have some sort of treaty deal with some government we recognize in Somalia that allowed this.

More later as I sort through it.

Thursday, April 14, 2011

" Hard National Security Choices" as set out at Lawfare Blog

I'm attending the same conference covered (and participated in) by some real legal experts in matters of trying to balance national security needs with individual privacy and other concerns. These are being recaptured by Benjamin Wittes at Lawfare: Hard National Security Choices and I’m from the NSA, and We Don’t Get Out Much.


Not a field in which I have had much experience, but as I sit there listening, it is easy to see what a challenge it is working through these issues as, in many case, events and technology have sped far beyond the legal systems efforts to try and assemble itself to deal with the new issues.

For example, with the law of armed conflict driven, for the most part, by nation states and uniformed armies in the field, how do you derive rules for a war that is not being fought by national armies nor by uniformed forces nor even by nationals in the state in which battles are being fought?

More has this goes on tomorrow.

Tuesday, March 15, 2011

Somali Pirates Get Life Sentences in U.S. Court

Reported as US sentences Somali pirates to life :
Five Somali men, convicted of attacking a US Navy ship, have been sentenced to life in prison by a Virginia court.

Tuesday’s sentencing is the harshest yet for accused pirates as the US tries to halt piracy off Africa's coast.

The federal prosecution relied upon rarely-used 19th century maritime laws, and was the first piracy case to go to trial since the Civil War, when a New York jury deadlocked on charges against 13 Southern privateers.

The five Somali men were convicted on federal piracy charges on November 24 last year.

Prosecutors argued during trial that the five had confessed to attacking the USS Nicholas on April 1 after mistaking it for a merchant ship.

Defence lawyers had argued the men were innocent fishermen who had been abducted by pirates and forced to fire their weapons at the ship.

However, John S Davis, an assistant US attorney, had argued that three of the men were in a skiff that opened fire on the Nicholas with assault rifles, then fled when sailors returned fire with machine guns.

Davis said all the men later confessed to the attack in remarks to an interpreter on board the ship. He said they expected to make anywhere from $10,000 to $40,000 from the ransom, a comparatively small sum.
More here:
Somali pirates in action (not from the Nicholas case)
The sea brigands in March last attacked 'USS Nicholas' patrolling the east coast of Africa as part of an anti-piracy mission. But the warship's crew returned fire and captured the pirates after chasing down their vessel.

Presiding judge Mark Davis also sentenced them to an additional 80 years in prison for firearms charges in connection with the hijack attempt. The trial held at Norfolk, home port to USS Nicholas and one of the largest naval bases in the world, also witnessed the first-ever conviction by a U.S. jury in a piracy case since 1820.

Defense lawyers said they planned to appeal the conviction as well as the sentencing.

Attorney Neil MacBride told reporters that the sentence pronounced by the trial court was the longest ever in a piracy case. The buccaneer convicted in 1820 was executed. MacBride added that the punishment meted out to the five should serve as a deterrent to others embarking on the career beyond the law.
***
In November, the trial court had found the defendants guilty of the charges. However, the defense has maintained that the men had been abducted by Somali pirates who forced them to fire from their weapons.
Report of capture of pirates here. Report of original conviction here.

Tuesday, March 01, 2011

Somali Pirates: U.S. Senator Proposes Legislation for Counter Piracy

U.S. Senator Mark Kirk (R. IL) has some suggestions on fighting Somali pirates, as set out in a press release from his office:  Kirk to Advance Anti-Piracy Legislation in Wake of Slaying of Four Americans on Arabian Sea:
In the wake of the killings of four Americans last week, U. S. Senator Mark Kirk (R-Ill.) drew attention Monday to a recent New York Times report detailing the escalating threat to the international shipping industry from increasingly demanding and violent Somali pirates.

Senator Kirk said he will advance anti-piracy legislative options to safeguard U.S. economic and security interests off the coast of east Africa.

“The murder of four Americans shows the requirement for a tough response to Somali pirates,” Senator Kirk said. “This is a growing problem, not only victimizing innocent Americans handing out bibles, but also the safe passage of oil-filled tankers bound for the United States.”
***
Senator Kirk said he is studying the advancement of several anti-piracy legislative options, including but not limited to, establishment of:

•A ‘Pirate Exclusion Zone’ that would allow the immediate boarding and/or sinking of any vessel from Somalia not approved and certified for sea by allied forces;


•An Expedited Legal Regime permitting trial and detention of pirates captured on the high seas;


•Blockade of pirate-dominated ports like Hobyo, Somalia.


•Broad powers and authority to on-scene commanders to attack or arrest pirates once outside Somalia’s 12-mile territorial limit, including the sinking of vessels if a local commander deems it warranted.

Through his position on the Senate Banking Committee, Senator Kirk will explore financial links between pirates and the terrorist groups al Shabaab and IQIM, and target pirates with financial sanctions in the same way as other terrorist networks. (emphasis added)
It should be noted that Sen. Kirk is also a U.S. Navy Reservist according to his biography.

Update: NPR report on legal issues in trials of pirates-



An interesting look at prosecuting pirates at The United States Must Prosecute Pirates from the National Security Law Brief site (and a hat tip them for the NPR link):
The recent deaths of four Americans at the hands of Somali pirates is leading military and legal scholars to question the ways in which the United States and the world community attempt to prosecutes pirates. The recent standoff involved Somali pirates shooting a rocket propelled [grenade] at Pirates hijack yacht with four Americans on board naval forces and abruptly firing on board a vessel in which they had four Americans as hostages. By the time special forces arrived on deck two hostages were already dead and the remaining two died shortly thereafter.

Wednesday, February 23, 2011

"Combatting Piracy in International Waters"

From the computers of James Kraska (U.S. Naval War College) and Brian Wilson (U.S. Navy Attorney) and found at the World Policy Institute blog: Combatting Piracy in International Waters:
We face an ocean of problems. Naval air and sea operations by even the most capable maritime powers have been unable to slow Somali piracy because they cannot prosecute the endgame. Piracy thus flourishes at the seams of globalization because jurisdiction is unclear and pirates exploit the inherent isolation of individual vessels and nations.
***
In this setting, international law is more important than adding another warship to the equation—it has become the most effective force multiplier for developing and maintaining maritime security. A truly international process would create a network of interested states that could begin to co- ordinate in real time, working effectively across legal and jurisdictional lines of demarcation to bring collective action against this threat. Long-term maritime security capacity building will make the coordination even more effective. Only greater collaboration and the rule of law will calm the dangerous waters off the Horn of Africa. In the words of Tony Blair: “Our ultimate weapon is not our guns, but our beliefs.” History tells us that piracy along the Somali coast will ultimately subside. Returning to these placid waters, however, requires adaptability, partnering, innovation, and leadership.
Yes, well, the biggest word in the English language is "if" and this article, while valuable, is another "if" effort.

"If" examples from the piece:
"While it is impossible to eradicate maritime piracy completely, the threat can be greatly reduced if we broaden efforts to work with international partners."

"The ability to deal successfully with Somalia’s maritime pirates would improve if the country is stabilized under a responsible government."

"If nations in East Africa develop the legal architecture to deal with piracy, including adequate lawyers, courtrooms, and confinement facilities, they will be more willing and better able to enforce the maritime rule of law in the neighborhood."

Such aspirations of international comity and cooperation always remind me of the problem of mice deciding they would be safe "if" only someone would agree to take the lead in "belling the cat.".

Oh, and, by the way, the Blackwater anti-pirate ship mentioned in the piece no longer exists. Blackwater is now "Xe" and the ship never found gainful employment. Not to fault the authors, because they may have written this piece some time before it was placed on the blog where it resides, but somebody should have fact checked a little.

Despite the demise of Blackwater and its ship, there are a number of active private security companies offering counter-piracy services in the Gulf of Aden/Indian Ocean area and another large number of enterprises offering various forms of defensive tools to ship owner/operators ranging from sonic pirate busters (LRAD) to barbed wire with which to "armor" a merchant ship. I think I've even seen an ad for some sort of boiling oil dispenser, but I might have that slightly wrong.

In any event, the authors raise many good points, full of hope that a coalition of willing pirate fighters might quell the threat raised by Somali pirates. Perhaps I am too cynical, but in my experience, the trouble with coalition warfare is a coalition does not always act like united command and coalition partners have a tendency to decline the hard jobs while being more than willing to accept "being there" as a substitute for "doing things."

The time is past for gathering everything into nice legal bundles.

The 25 to 40 warships bobbing about in the Indian Ocean need to move inshore to Somalia and blockade the pirate base ports (historically 4) and take steps to put a dent in the pirate operations. Cut off the pirate's access to too much ocean, as set out here.

Some countries - England, Turkey, Denmark, Spain, France and the Netherlands- have shown courage in attacking pirate craft inshore and at anchor- and others should follow their lead while acting in a coordinated manner.

Heck, the French took action to retake some ransom paid by actually landing a force to intercept the "getaway" vehicle of the pirates who had the money. See here.

The pirates depend on outboard motors to power their attack craft. How about putting an embargo on such motors heading to Somalia?


I'm for hunting pirates!
Let the Somalis know that every single boat that attempts to leave Somalia must report into a "control ship" for inspection and that failure to do so will result in instant sinking by gunfire. As I wrote earlier:

My own personal option is a blockade of known Somali pirate ports and an announcement of "no warning shots" by the various international naval units in the area if a small boat is found firing on a ship at sea. Aim for the motors on the boat and let the survivors drift home. They better have life jackets and oars.

In any event, the time is now to start shrinking the amount of sea space available to the pirates and begin to push them back to Somali home waters.

No "ifs" "ands" or "buts."

UPDATE: Pirates add ammo, men to ships after 4 US deaths:
Pirates in Somalia said Wednesday they are ferrying ammunition and men to the 30 hijacked vessels still under their control, and they threatened to kill more captives following the violent end to a hostage standoff that left four Americans dead.
***
A pirate in Somalia who gave his name as Adowe Osman Ali said fellow "soldiers" had ferried the reinforcements to hijacked ships in their hands on Wednesday in a bid to deter more hostage rescue attempts. He said after Tuesday's incident, captains of hijacked ships have been ordered to tell navies not to approach or hostages would be killed.

"In the past, 20 or so soldiers used to guard every ship but now the numbers are ranging between 60 and 70 soldiers," said Ali, a pirate in the coastal village of Gara'ad.

"We are more alert than anytime before," he said. "In the past, we allowed the foreign navies to approach us but now we have warned them to not get nearer to us."
Which may or may not be true, as given that they are holding 37 ships, that's army of over 2000 "ship guards" and must make for a pretty big logistics train to keep them in khat, food and water. Not to mention the portion of the cut of the ransoms these numbers will eat into.

No, I take this as a sign that the pressure by the various coalitions, no matter how uncoordinated, is eating at the pirates.

I don't really see these guys willing to devote months awaiting attacks that may or may not ever arrive.

In which case, more coordinated pressure, sooner rather than later, please.

Wednesday, February 16, 2011

Somali Pirate Convicted and Sentenced to 33 Years - But Not for Piracy

Abduwali Abdukhadir Muse, Somali Man Accused In Ship Hijackings Sentenced to Over 33 Years In Prison:
Muse pleaded guilty last May to hostage taking, kidnapping, hijacking and conspiracy and was sentenced to 33 years and nine months in prison on Wednesday.
Muse now is entitled to free cable TV, 3 squares a days, legal aid, education, books and a cot.

Which, not surprisingly,  is better than what he had in Somalia.

Except for that confinement thing.

Stone walls can a prison make.

Thursday, February 10, 2011

Somali Pirates: Security Firms Dump Weapons to Comply with Law

Glug!
There are a lot of quirks in the legal systems of the world, but some of these quirks are having an effect on armed guards plying the waters where Somali pirates operate.

The story is reported by Bradley Hope as "Firearms an odd casualty of piracy":
Thousands of guns are being dumped in the ocean by private security companies hired to protect ships against pirate attacks, top security executives say.

As Somali pirates grow bolder and launch attacks further into the Indian Ocean, shipping companies and yacht owners are increasingly using armed security to protect their vessels.

Dumpable? TheAK-47- Accurate, Tough and Cheap
But there are varying laws and regulations about taking weapons into ports across the region, leading some security companies to cut costs and save time by getting rid of their guns before arriving in various countries' territorial waters.

"This is happening on a daily basis," said Richard Skinner, the Dubai director at the security company the Orchid Group. "I suspect there are literally thousands of semi-automatic and automatic weapons down there at the bottom of the Red Sea for fish to swim around."

These practices and others have led security companies and government officials to call for increased regulation of armed teams operating on the high seas. Rogue security companies could endanger the lives of their clients and innocent fishermen by failing to follow proper rules for using force against perceived threats.
Expensive? Less than the cost of complying with the law in most cases and eliminates the risk that the ship being protected might be seized by authorities for violation of guns laws. Much less than the cost of lawyers to fight weapons charges.

Smart business practice.

Monday, November 08, 2010

Somali "Pirates?" - Definition issue in new U.S. pirate trials

As set out in Federal courts in Norfolk wrestle over definition of piracy from The Virginia Pilot:
For the first time since the 19th century, piracy suspects will go on trial in a federal court in a case that legal experts see as precedent-setting.

Already there are conflicting rulings in the cases against two groups of Somali nationals charged with attacking Navy ships off the Horn of Africa earlier this year.
***
U.S. District Judge Mark S. Davis last month upheld piracy and related charges in a 14-count indictment against the five Somalis charged in the April 1 attack on the Nicholas, a Norfolk-based frigate.

Davis' conclusion was opposite the one reached by Judge Raymond A. Jackson, sitting two floors below Davis in the same courthouse, in August in a case involving the April 10 attack on the Ashland, based at Joint Expeditionary Base Little Creek.

Jackson determined that he must interpret the piracy statute as it was meant at the time it was enacted, which was 1819. He found, citing an 1820 Supreme Court case, that piracy is defined only as robbery at sea. Since there was no robbery of the Ashland, he threw out the piracy charge. The government appealed and the case was halted.
Dueling judicial opinions, disagreeing law professors and a bunch of thugs getting ready for trial.

What fun.

You can find the Judge Davis decision in U.S. v. Hasan here. UPDATE:My upload of a less commerical version: Hasan Piracy Op 178!                                                            

And the Judge Jackson decision in U.S. v. Said can be downloaded here.

Lots of good discussion over at Opinio Juris and at the links therein.

UPDATE: And an earlier post on the possible Said case appeal here.

Sunday, September 12, 2010

Somali Pirates: US aims at reversing dismissal of piracy indictment

The U.S. attorneys in Norfolk's Somali pirate trial are aiming at the judge's dismissal of the "piracy" count of the charges brought against the defendants, as reported by the Washington Examiner US appealing dismissal of piracy indictment :
The U.S. government is appealing a federal judge's decision to dismiss piracy charges against five Somali defendants accused in an April attack on a U.S. Navy ship off the coast of Africa.

Prosecutors signaled their intent to appeal to the 4th U.S. Circuit Court of Appeals in a filing Friday in federal court in Norfolk, where the five are scheduled for trial. They also are seeking to delay the start of the trial, scheduled for Oct. 19, while they seek to have the piracy ruling overturned by the Richmond appeals court.

U.S. District Judge Raymond A. Jackson on Aug. 17 dismissed the most serious charge against the Somali nationals, concluding the government failed to make the case that the men's alleged actions met the legal definition of piracy.
I suspect a basis for the appeal will be the trial court's failure to accept that certain international treaties should be used in considering what the definition of "piracy" is. While the United States is not a party to the United Nations Convention on the Law of the Sea, it is a signatory to the predecessor to that Convention - the 1958 Convention on the Law of the Sea. Article 15 of the 1958 Convention reads:
Article 15
Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.
Shooting at ships, even if boarding is not accomplished, would seem to fall under paragraph 1 of Article 15. This argument was raised at the pretrial hearing and dismissed by the judge.

We'll see if the Court of Appeals in Richmond has a differing view.

As noted in my first post on this dismissal (here), lots of legal wise men feel the judge was in error:
. . . Prof. Eugene Kontorovich quoted here:
...The Law of the Sea treaty clearly includes attempts as part of piracy. Here the judge errs in claiming the U.S. did not ratify the treaty: it ratified the 1958 version of the treaty that had the same piracy language. And Washington accepts the current UNCLOS as stating customary international law. Moreover, the Executive has in recent times treated attempt as part of piracy. In 2006 the US Navy captured some Somalis in the Gulf of Aden and turned them over for trial in Kenya on piracy charges (the first such handover). The incident involved an attempted piracy.

The opinion’s due process argument is also pretty weak. If one is on notice that piracy is illegal under international law, isn’t one also on notice that trying to commit it will also get you in trouble, especially when as in this case the attempt failed not through lack of trying, but solely because of resistance by the would-be-victim?

Perhaps we'll see a ruling that "piracy, like pornography, is hard to define, but you know when you see it." (see Justice Stewart's concurring opinion in JACOBELLIS v. OHIO, 378 U.S. 184 (1964)).

Tuesday, September 07, 2010

A Piracy Conviction in Kenya

European Union Naval Force Somalia - Operation Atalanta | Verdict for the first EU NAVFOR case in Kenya:
The conviction involved seven Somali men accused of acts of piracy. The presiding Chief Magistrate, the Hon Rosemelle Mutoka CM, delivered the verdict at the Mombasa Law Courts on 6 September, sentencing the seven Somali men accused to prison sentences of five years as from the judgement date.

The conviction relates to the attack on the FGS SPESSART, a Rhoen – class tanker of the German Navy, on 29 March 2009. The attack by seven men aboard a single pirate skiff was repelled by the onboard security detail. The skiff was then tracked through the combined efforts of three multinational taskforces and finally apprehended by the German frigate FGS RHEINLAND-PFALZ, operating as part of EU NAVFOR.

EU NAVFOR has to date transferred 9 groups of suspected pirates comprising 75 individuals to the Kenyan authorities for prosecution in the Kenyan national courts.
It's a start.

Sunday, September 05, 2010

Somali Pirates: The UN offers Seven Options

Reported by the AP as UN chief offers anti-piracy options :
U.N. Secretary-General Ban Ki-moon offered the Security Council seven options for grappling with the piracy problem, ranging from simple legal support for individual nations to a full international court established by the council, the U.N.'s most powerful body.
An effort instigated by the Russians, no less.

The seven options:
  1. basic support for nations in prosecuting suspected pirates; 
  2. establishment of a Somali court, applying Somali law, in a third state in the region; 
  3. two variants for helping a regional state or states to establish a special court inside its existing judicial system to conduct piracy trials;
  4. a regional court establishment by regional states and the African Union;
  5. an international "hybrid" tribunal with national participation by a state in the region;
  6. a full internatinal tribunal, established by the Security Council.
Number 3 counts as two options, I gather, thus giving a total of 7.

I suppose it might be useful to have an internationally recognized definition of piracy and/or armed assault at sea and some minimal level  of required evidence needed to prove attempted piracy.

Further, there has to be some system in which sworn video evidence of mariners may be used in court so that shipping companies will not be forced to send deck hand or officers from remote corners of the planet to testify against "suspects."

Make it too hard to get the captured pirates to trial and you will just get a continuation of the current situation - a "catch and release" program for misguided Somali youth.  Though some forms of this treatment are more harsh than others - see here.

My own personal option is a blockade of known Somali pirate ports and an announcement of "no warning shots" by the various international naval units in the area if a small boat is found firing on a ship at sea. Aim for the motors on the boat and let the survivors drift home. They better have life jackets and oars.

Of course, this probably violates their human rights.

I have an idea for a low-cost anti-pirate vessel with just the right weapon to take out small boats:


Put a UN flag on it.

Saturday, January 09, 2010

Whale Boors: Silly Sea Shepherds File Frivilous Lawsuit Against Japanese Whalers

Publicity whores that they are, the maritime incompetent Sea Shepherds turn to the courts of the Netherlands to allege that they were "pirated" by Japanese whalers, as set out in Whale Wars: Sea Shepherd lodges piracy charge against Japanese whalers:
On Friday, Sea Shepherd filed a legal complaint against the Japanese whaling fleet in the Netherlands, where Mr. Watson's flagship, the Steve Irwin, is registered. "We filed a complaint for criminal prosecution with our prosecutor, requesting the start of an investigation into what we consider to be a crime -- piracy, actually -- committing violence on the high seas," Liesbeth Zegveld, a legal adviser for the group, told Reuters.
***
But it's far from certain that legal filings will lead anywhere, and legal analysts say a charge of piracy against the Maru, which had been consistently harassed by the smaller Gil, is unlikely to stick.
***
But the consensus of experienced mariners and sea captains who have e-mailed me is that, while it's the responsibility of all vessels at sea to take every precaution to avoid a collision, and so to a certain extent there is blame to be spread around, that smaller, more maneuverable boats like the Gil are generally expected to have more responsibility for avoiding collisions, since they can turn faster.

"Under the long established international rules of maritime navigation, the smaller, more agile vessel is expected to remain clear of and not impede the operations or navigation of the larger, less nimble vessel," is how one former mariner put it.
***
The Collision Regulations of the International Maritime Organization, issued in 1972 and still in force, would seem to back up the stance that more of the fault lies with the Gil, since it had spent days deliberately approaching and interfering with the operations of the Maru, by darting across its bow, aiming lasers designed to temporarily blind the Japanese mariners, and seeking to foul its propeller with cables.
***
Watson's group has long said these sorts of regulations don't apply to their efforts, because they deem the actions of the Japanese whalers to be illegal and say that they are vigilantes enforcing laws that vested authorities refuse to do.
Is this the same as parking your car on a railroad track in the face of an on-coming train and then arguing that the train is at fault? What if you argue that the train is not there legally because it illegally emits too much pollution or makes too much noise?

Lasers? Watch this:
video

Trying to foul Japanese ship screw? See this:
video

More video available from the Japanese ICR here.

By the way, the skipper of the Gil asserts his boat was trying to avoid collision by turning to starboard at the time of the collision. Check the video and see if you detect any alteration in the wake of the boat:

Wednesday, January 06, 2010

Somali Pirates: Turkey calls for UN-sponsored trials of captured pirates

"Somali pirates should be tried under watch of UN"- Turkey says:
Suspected pirates off the coast of Somalia should be prosecuted under the supervision of the United Nations, according to a letter sent by Turkey to UN Secretary-General Ban Ki-moon and made public here on Wednesday.

In the letter, Turkey's permanent representative to the UN, Ertugrul Apakan, suggested the formation of a judicial system to punish perpetrators and deter potential pirates from a life of criminality.

"Turkey believes that it would be useful if a mechanism is put in place in one of the countries of the region, under the supervision of the United Nations, to effectively prosecute persons suspected of piracy and armed robbery at sea off the coast of Somalia," said Apakan.

Currently, no clear legal regime exists to hold pirates off the coast of Somalia accountable. Normally, under the United Nations' Law of the Sea Treaty, Somalia would try its citizens. But Somalia never ratified the treaty, and is largely deemed a lawless nation without a viable government.

To make do, countries like the United States and Britain have signed Memorandums of Understanding with the Kenyan court system to try suspected pirates in a kind of Hague international tribune.

But without a clear international legal framework, many countries, like Turkey, are calling for the United Nations to coordinate a comprehensive judicial mechanism.
Nice idea,though it shows a degree of faith in the UN that I personally don't see much justification for.

"Suspected pirates?" Unless and until it's an international crime to sail in international waters with rifles (which is currently is not), RPGs and ladders "suspects" are all you are going to have unless you catch pirates boarding or occupying a ship. "Catch and release" is a bad choice, but it may be the best choice currently available.

Tuesday, May 05, 2009

Tuesday Reading: Pirates and more

Fred Fry's Maritime Monday 160 over at gCaptain.com, featuring timely nautical topic linkage outnumbering the military ships trying to stop the Somali pirates. Photo links this week to "laid up" ships in various corners of the world.

At his home blog, Fred has pictures and video of the French taking down some pirates, including the error prone bunch that attacked a French warship. The photo shows some of the pirate fishing supplies.

As noted here earlier, the Somali pirate awaiting trial in New York has a defense lawyer "wannabe". he may want to travel to France, too, where there will be several more trials... that would demonstrate something in addition to publicity seeking...

The Turkish Navy has assumed command of CTF-151, the pirate-fighting task force off Somalia:
The U.S. Navy transferred command of the Combined Maritime Forces' (CMF) counterpiracy task force to the Turkish Navy May 3 in a ceremony held aboard Naval Support Activity Bahrain.

During the ceremony, Rear Adm. Caner Bener relieved Rear Adm. Michelle Howard as commander, Combined Task Force (CTF) 151. Howard was not able to attend the ceremony as she was conducting operations at sea.

Established in January, CTF 151 was initially commanded by the U.S. Navy. Turkey is the second nation to command the counterpiracy task force.

"As I take command, I would like to emphasize that CTF 151 will continue its critical contribution to regional maritime security and lawful maritime order," said Bener.

"Obviously, it will take time, passion and perseverance, but I believe that during my command our sincere efforts will aide in achieving the goals and objectives of the task force and will bring more stability and peace to the region."
Steeljaw Scribe takes to the movies and whaling. From the relevant to the old guys standing around the bar talking about the "good old days," sorta.

What do you do with a drunken sailor? Send the Coast Guard, then call the sheriff, as set out here. Save the drinking for the beach. By the way, May 16 kicks off National Safe Boating Week.

Some fixable issues with Marine V-22 tilt rotor aircraft on some Navy ships here:

Sustained shipboard deployment of the V-22 also has posed a slight challenge to the service. It was discovered that on smaller deck amphibious ships, heat from the downward-pointing nacelles could potentially warp the stringers underneath the deck plates. “We’re concerned with heat on the LPD and LSD decks because the steel is so thin,” Trautman said, adding that the service has “worked through that challenge.”

One solution is to tilt the nacelles forward slightly, which gives 35 minutes of operational time on deck.

The other option is deck plates that provide protection up to 90 minutes. The Marine Corps is working with the Defense Advanced Research Projects Agency and the Office of Naval Research to find coatings for the deck, particularly in light of the F-35 Joint Strike Fighter (JSF). The exhaust from the JSF’s auxiliary power unit has the potential to cause similar heating problems, so the joint program office is working on the issue now, Trautman said.

Sunday, April 26, 2009

Death by ACLU

The ACLU has pushed for and now, apparently, gained a "victory" in getting photos of military investigations of alleged prisoner abuse released. Wow. Good for them.

Reactions on the conservative side have a range from something akin to a mild rebuke from the Wall Street Journal editorial page titled The ACLU's Photo Shoot:
The ACLU may think that humiliating the U.S. and indicting the Bush Administration are more important than protecting American interests. American soldiers and diplomats may have a different view.
"Mild," that is, by comparison to Steve Schippert at National Review Online, Obama Administration's Assault on the American Warrior Commences :
The aim of the release is to assault America in the court of public opinion, using the wholly owned media PR subsidiary as the armored assault vehicle. And the administration, through its acquiescence, is at minimum enabling this, choosing consciously to end the public defense of the American warrior class and its very legacy. Perhaps the administration is acting with willful disregard for them by taking direction from the ACLU/Soros/Moveon.org hard Left in a form of electoral quid pro quo. At worst, the administration is directly aligned with them and acting in concert rather than taking direction from them.

Either way, the principled defense of the warrior is over, by choice of the Obama administration in directing the Pentagon to end the defense short of SCOTUS. It is an outright abdication.

Steve and the WSJ are concerned, as they should be, that the release of photos (made as part of investigations into abuses and not as part of a cover up) will spark ugliness in those easily roused areas where American soldiers, sailors, marines and airmen may bear the brunt of said ugliness while the "winning" ACLU lawyers are drinking wine and toasting their "glorious" victory.

Meanwhile, the Taliban, not being a current threat to the ACLU and it odd ideas of "justice," will continue to kill, murder, maim, stone to death and assassinate all who stand in their way. Al Qaeda does not read victims their "rights" before setting off a bomb in a crowded market.

Too bad the ACLU isn't interested in taking action to stop the Taliban from their torture, their imposition of their religious views on others at the point of a gun or to stop al Qaeda from using car bombs and bomb belts. You know, 'cause I don't think an injunction will cut it. ACLU types might have to go out there and actually do something . . .

But no, the ACLU will go for the low hanging fruit, keeping its dresses clean while letting the hard work be done by others, some of whom do not always react with the cold, clear logic of the ACLU lawyer who knows who the enemy is - George Bush. And that ACLU lawyer knows how to use lawfare not merely to punish the guilty, but to place in harm's way those who had nothing to do with the prisoner abuses but who happen to serve in the military or the Department of State.

"Guilt by association" is not a principle I once would have linked to the ACLU though now it seems to be one of their basic tenants that anyone in the military or serving the U.S. overseas is fair game. I guess it's all part their rush to undo the horrors of the Bush years, when all those ACLU lawyers weren't sent to re-education camps and weren't forced to ... do anything. Except bitch about how bad it was having BushHitler for president.

I used to believe that the ACLU felt "Better ten guilty men go free than one innocent man be punished....". In the new politics of the ACLU, there now seems to be a new ACLU rule that "many innocents may be put at risk to publicize the wrongs of a few." Even if the few are already being punished for those wrongs. And "it's all Bush's fault."

I hope the ACLU lawyers and those who support and foster them can live with the blood of innocents on their hands and on their writs because any death or injury of an American that results from the release of the photos I personally will tie back to the ACLU.

You know, "because freedom can't protect itself." Nope, sometimes it takes more than ACLU lawyers, though. Sometimes, it takes warriors. A lesson the ACLU needs to learn.

UPDATE: A confession that will please the ACLU types, a plea to move on that will be ignored. H/T: The Yankee Sailor.

UPDATE2: Another sharp stick, but, again, reality has nothing to do with this witch hunt.

Whack a Dolt: "The Pirate and the Talk Show Lawyer"

Nice take down of a pirate defense lawyer wannabe at ExportLawBlog in "The Pirate and the Talk Show Lawyer":
Of course, that hasn’t stopped lawyer-turned-radio-host Ron Kuby, who is seeking to defend Muse, from trying to concoct a dubious theory questioning U.S. jurisdiction over Muse.

I think in this particular case, there’s a grave question as to whether America was in violation of principles of truce in warfare on the high seas. This man seemed to come onto the Bainbridge under a flag of truce to negotiate. He was then captured. There is a question whether he is lawfully in American custody and serious questions as to whether he can be prosecuted because of his age.
Presumably this is a reference to Article 32 of the 1907 Hague Convention Respecting the Law and Customs of War on Land (Hague IV), which at least might arguably be said to also state the international law regarding wars at sea. That provision states:

A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.
Even leaving aside the formality of the white flag, and there is no indication that Muse carried one, Hague IV and the international law governing conflicts at sea only applies to nations at war. Historically pirates have been considered hostes humani generis (”enemies of all mankind”) and completely outside protection of maritime law. Conventions relating to the conduct of war by nations have no application to them. Instead, the only protections that pirates have are those set forth in the UNCLOS and the 1958 Convention on the High Seas, both of which give the pirates a right to a trial.
The initial court hearing seems to have taken care of the age issue (here).