Jurisdictional Exception and Piracy - Essay Example

Whether and to what extent the practice of these Piracy affected s may be interpreted as evidence of the exercise of universal jurisdiction? (Word count 2720 excluding table of contents, bibliography, list of cases, list of statutes) Table of Contents S.No Heading Page No 1 Introduction 3 2 Universal Jurisdiction – An Analysis 3 3 Jurisdiction over Piracy 5 4 Jurisdictional Exception and Piracy 6 5 Somali Piracy and Invocation of UJ 7 6 Conclusion 13 Introduction The Harvard research study carried on in 1935, which is the first private study on the piracy offered a definition of piracy as an offense under international law and also offered the definition of universal jurisdiction over the piracy offence. It is to be noted that the recommendation of the Harvard research on piracy was endorsed by the International Law Commission (ILC)1. The draft article offered by ILC expressed that “ on high seas or in any other place (for example , hijacking a plane) which falls outside the jurisdiction of any State , in such scenarios ,every State has the jurisdiction to seize the attacked ship “ and this was codified in the Geneva Conventions on the High Seas(1958). As per” Michael P. Scharf “(1995), for more than five centuries, governments have opted universal jurisdiction over piracy on the high seas2. This research essay will make an attempt how universal jurisdiction can be applied by the piracy affected States in apprehending and sentencing the pirates despite of their laws may impede the same. “Universal Jurisdiction – An Analysis” Of late, courts around the globe have banked upon universal jurisdiction (hereinafter will be referred as UJ) which is being used to defend proceedings against supposed perpetrators of crimes on international sea waters. The doctrine of UJ explains that a country can initiate legal action to indict offences to which it has no link or connection at all- the jurisdiction will be footed upon purely on the extraordinary barbarousness of the said conduct. As per UJ, any country can initiate legal action for universal offenses, not taking into consideration at all the objection of the victims and defendants’ home nations. However, there is no globally codified definition of UJ, the notion, it has been signified, allows nations under international law to initiate legal action on some offenses that are committed in foreign nations, in spite of any link with crime and in the absence of any nexus provided by other grounds of prescriptive jurisdiction acknowledged by international law. An assertion of UJ can usher conflict and possibly create hostility among nations since it can be assumed as an encroachment on the sovereign authority of the nation that has traditional prerogative or jurisdiction over the offense3. For many hundreds of years, UJ was made applicable to only to piracy offenses. Proponents of UJ have tried to establish its legality by invoking piracy as a precedent, inspiration and justification4. As per Randall, under UJ, any state is having the right to punish an offender who is indulged in serious crime like piracy, and only requirement is that the physical presence of the alleged offender should be there within the jurisdiction of that state when offence was made.5 However, the Democratic of Congo, on 17 October 2000, filed a case (famously known as Arrest Warrant6 case) against Belgium for issuing an arrest warrant against its minister. After trial, ICJ (International Court of Justice) endorsed his immunity and but, ICJ kept silent over legality of the UJ in absentia asserted by Belgium7. As per Yee, the UJ movement seems to be a speeding train without its engine8. In “USA v. Layton”9, it was held that under the Restatement (Second) of Foreign Relations Law (1965), piracy was named as the only globally cognisable offense10. Jurisdiction over Piracy Criminal jurisdiction is regarded by the international law as a prerogative of sovereign states. Occasionally, states have jurisdictions over crimes committed not in their jurisdiction, which is known as extraterritorial jurisdiction and the extraterritorial jurisdiction will frequently involve competing jurisdictional assertions between nations11. The extraterritorial jurisdictions come to rescue to redress such issues by segregating jurisdictional accountabilities among nations in those scenarios where these accountabilities are likely to overlap. Thus, a country can use extraterritorial jurisdiction over a crime only it has an obvious nexus with the crime that offers it jurisdictional priority over the other countries. Under the protective principle, a state can exercise jurisdiction over some activities carried over in foreign jurisdiction that has resulted in the harmful outcomes in the prosecuting state12. Jurisdictional exception and Piracy Some critics argue that universal jurisdiction existed just because of the traditional kinds of jurisdictions did not cover piracy. When a particular nation’s ship is attacked by pirates on high sea, that nation has the authority to try the offenders within its passive jurisdiction. As of date, international law as authorised by Convention on the High Seas (1958) and the United Nations Conventions on the Law of Sea (1982) continues to consider the piracy as an internationally recognisable offense. The legality of the universal jurisdiction over piracy in the last many centuries had been acknowledged by scholars and jurists of every major maritime country as held in USA v. Smith13. In this case, U.S. Supreme Court early as in 1820, upheld the exercise of UJ by U.S. courts over piracy and held that pirates being hostis humani generis which connotes foes of humankind and are punishable in the tribunals of all countries14. However, in these days, it is difficult to find any authority confronting the global principle as applied to piracy15. In USA v Yunis16, the defendant was indicted for hijacking and demolition of a foreign aircraft in Lebanon. Yunis, a Jordanian citizen, was later and he was charged in the USA for the acts of aircraft piracy. Turing down his Yunis argument that USA had no jurisdiction to try him for offenses committed in the Lebanon, the District court opined that there existed the cannon of universal jurisdiction was well founded and offered adequate foundation for claiming jurisdiction over an alleged offender17. Somali Piracy and Invocation of UJ To overcome jurisdictional issues, United Nations Security Council passed Resolution 1816 on 2 June 2008, which stated that piracy crimes and armed robbery against vessels will include if such crimes carried out both in the high seas and in the territorial waters of Somalia18. The origin of UJ over piracy offence can be traced to the Harvard Research. Hence, we can come to a conclusion that ILC has codified a traditional rule of UJ over piracy. This gives a way to significant questions as regards to present response to Somali piracy and the application of UJ. Somali piracy is a major concern to the UK economy and for the international economy. About 90% of the merchandises traded globally are being moved by sea, and about forty percent of the merchandises are transported by 28,000 ships through Somalian coast annually through Arabian Sea, Indian Ocean and Gulf of Aden19. The annual cost of piracy is estimated between $7 and $12 billion, which includes the cost of prosecutions, insurance premiums, security and deterrent equipment. Henry Bellingham, UK minister, observed that the British shipping industry is worth about £10.7 billion of UKs GDP20. Further, UK is highly relying on huge volume of merchandises, which are transported to the UK by sea and this makes UK as a state whose vulnerabilities and strengths are distinctly maritime and hence, the UK should assume a prime role in the international reaction to piracy. As per Oxford Economics study, the aggregate contribution of the maritime services to the UK economy is estimated at £26.5 bn or 1.8% of its GDP. Further, the maritime sector acts as a major element of UKs banking, insurance and legal service industry. Large international ships passing through Gulf of Aden are being insured in UK. About $350 million is paid by the UK insurance companies towards ransom demand by Somalian pirates21. Over 20 governments either acting individually or collectively, established joint naval forces in the Gulf of Aden to combat Somali piracy. This will really help the international community to try the captured pirates in any one of the above-mentioned states in their domestic courts by applying UJ without transferring them to the victim states. It is to be noted that about 1186 pirates had been booked or awaiting the prosecution in 21 States and there is no clear idea is available whether the actions are initiated against them under CJ or UJ or some other ground of jurisdiction22. The Article 105 of UNCLOS states that every state has the right to seize a pirate ship or aircraft, whether on the high seas or in any other places outside the jurisdiction of any State (so, this will include territorial waters also), and can arrest such culprits and can seize the property on the board23. Countries like France, USA, Netherlands, Germany, Japan and Italy have provision in their domestic law the right to impeach pirates in their domestic courts provided their vessels or citizens have been attacked or murdered through the act of piracy24. The Netherlands was the first ever European nation that decided to charge Somali pirates. The Rotterdam court found that Netherland’s legislature is vested with UJ for criminal proceedings in respect of piracy cases thereby relying on the Article 105 of UNCLOS. This case demonstrates that UJ can be employed for prosecuting pirates who have been captured in Somalian High Sea, and Somalia cannot claim jurisdiction issues over it25. Netherland was the first state to take the possession of pirates and awarded them with five years’ imprisonment. In another case, Germany made a request for extradition of ten pirates from Netherlands, who involved in Germany-flagged carrier Taipan in June 2010. Thus, it can be concluded that as on date only very few of all detained piracy suspects have been booked by the seizing State and only just two non-seizing victim States were ready to book the said suspects for prosecution. This demonstrates that many seizing States are reluctant to employ UJ against Somali piracy26. Further, it looks like that the states are using nationality, territorial and protective principles rather than exercising UJ. MV Taipan having German flag was attacked by the Somali pirates in April 2010. Germany is applying UJ against the pirates, and the maximum sentence against Pirates will be 15 years under German law27.Applying UJ is an important milestone on the part of the Germany in piracy cases in their domestic courts. In U.S. v Abduwali Abdukhadir Muse28, Maersk Alabama, an American vessel was attacked by Pirates and its captain was held as a hostage. Later, US Navy rescued the capital and killed three pirates, and one pirate was arrested. The accused pirate pleaded guilty of offenses of kidnappings, maritime hijackings and hostage-taking and not for piracy as piracy charges were ignored as part of the plea compromise scheme29. Why piracy charge was withdrawn in this case is a million dollar question. Perhaps, to avoid to attract UJ, it may assumed that piracy charges might have been withdrawn by the U.S.A. In US v Said, in 2010, the US court found that piracy is restricted to “robbery at sea only.” This case elucidates that US courts are rather reluctant to expand the meaning of piracy beyond that demonstrated by the 19th Century treaties. Further, US was reluctant to subject piracy to customary law, where it would constantly by striding to cater transforming needs of society30. U.S. v Hasan et al 31was first ever case in US where Somali pirates who were arrested in Somali international waters and later were sentenced for the piracy offense in U.S.A. Since 1820, on November 24, 2010, the first ever conviction was made for piracy offense in the U.S. For attack made on USS Nicholas, five Somali men were convicted for piracy by invoking UJ by USA32. In” U.S. v Dire et al” 33, it was held by the US court that the piracy is an offense under the universal law, in spite of whether an act of robbery has happened or not and there is availability of a right of UJ over it. US court finding in this case in 2012 had an opposite view what was held in US v Said in 2010. 34Kenya was the first ever third- nation that prosecuted pirates arrested by the U.S. and U.K. In Republic of Kenya v Hassan Mohamud Ahmed and 9 Others35, Kenyan court found that it had jurisdiction to try alleged piracy under international laws (UJ) even though that was forbidden by Article 69 of the Kenyan Penal Code. Kenyan court, in this case observed that piracy was a crime against the humanity which lies outside the protection by any state36. Conclusion The Article 105 of UNCLOS states that every state has the right to seize a pirate ship or aircraft, whether on the high seas or in any other places outside the jurisdiction of any State. Geneva Conventions on the High Seas (1958) is also helping to prosecute piracy crimes. Convention on the High Seas (1958) and the United Nations Conventions on the Law of Sea (1982) continues to consider the piracy as an internationally recognisable offense. United Nations Security Council passed Resolution 1816 on 2 June 2008, which stated that piracy crimes and armed robbery against vessels will include whether such crimes carried out both in the high seas and in the territorial waters of Somalia37. As on date, only very few of all detained piracy suspects have been booked by the seizing State and only just two non-seizing victim States were ready to book the said suspects for prosecution. This demonstrates that many seizing States are reluctant to employ UJ against Somali piracy. Further, it looks like that the states are using nationality, territorial and protective principles rather than exercising UJ. Hence, it is necessary to consider the piracy as international crime, and it is recommended that the international community should come forward to legislate a separate international criminal law for piracy, which could authorise victim states to prosecute the pirates in international criminal court, which would resolve the present jurisdictional issues witnessed by many States around the world. 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(Cambridge University Press) Schofield C H & Lee S, The Limits of Maritime Jurisdiction (Martinus Nijhoff 2013) Shaw M N, International Law (CUP 2014) Journal Articles Eugene K,’ Modern Universal Jurisdictions Hollow Foundation’ [2004] Harvard International Law Journal, v 45 (1) 190 Guilfoyle D, ‘Prosecuting Somali Pirates. A Critical Evaluation of the Options’ [2012] 10 JICJ 767 Huang Y, ‘Universal Jurisdiction over Piracy and East Asian Practice’ [2012] 11 Chinese JIL 623 Randall K C, ‘Universal Jurisdiction under International Law’ [1988] 66 Tex. L. Rev. 785 Treves T, ‘Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia’ [2009] European Journal of International Law, 20 (2), 399-414 Yee S,’ Universal Jurisdiction: Concept, Logic and Reality’ [2011] 10 Chinese ILJ 503 Web www.parliament.uk, ‘Somali Piracy ‘(2012) < http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/1318/131806.htm> accessed 1 December 2012 List of Cases Republic v Hassan Mohamud Ahmed and 9 others Criminal Case No. 434 of. 2006 U.S. v Abduwali Abdukhadir Muse No. 1:09-cr-00512-LAP (S.D.N.Y. 19 May 2009 U.S. v Dire et al (4th Cir. 23 May 2012), at pp. 14-18, 38, 41 U.S. v Hasan et al (2010) 747 F. Supp. 2d 599 (E.D. Va. 2010) US v Said (2010) USA v Yunis 681 F.Supp. 896 (1988) USA v. Layton 509 F. Supp. 212, 223 (N.D. Cal. 1981) USA v. Smith 18 U.S.5 Wheat.) 153, 162 (1820) List of Conventions Geneva Conventions on the High Seas (1958) United Nations Conventions on the Law of Sea (1982) List of Law Restatement (Second) of Foreign Relations Law (1965) Read More