Prosecuting Somali Pirates in the Seychelles: A Great Idea

I recently blogged on IntlawGrrls about my trip to the Seychelles (click here: http://intlawgrrls.blogspot.com/search/label/Milena%20Sterio). Below, I explore additional issues related to the prosecution of Somali pirates in countries like the Seychelles.

After a week in the Seychelles,
where I attended meetings with the Seychelles’ Attorney General and Supreme
Court judges, I am back in the United
States, and would like to take this opportunity to reflect on some of the legal
issues related to Somali piracy and prosecutions in the Seychelles’ national
courts.
For any nation interested in
prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to
prosecute pirates, it must amend and expand its jurisdictional statute to allow
for such prosecution on the broadest possible basis. The Seychelles has thus revised its national
law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows
countries like the Seychelles to prosecute acts of piracy to which they have no
nexus. Many countries, including the
Seychelles before this revision, have jurisdictional statutes that allow for
pirate prosecutions only if the act of piracy is committed in that country’s
territorial sea, a stretch of sea extending 12 nautical miles from the
country’s shore. Thus, acts of piracy
committed outside of such countries’ territorial sea cannot be prosecuted in
those countries’ national courts because of a basic jurisdictional
shortcoming. Mauritius, another island
nation in the Indian Ocean and another potential partner in the global fight
against Somali piracy, has also started tampering with the idea of expanding
its jurisdictional statute to allow for national prosecutions of Somali
pirates. It is unclear however how Mauritius
will revise its statute. Some reports
indicate that Mauritius’ law will only allow for prosecutions of piracy acts
committed in the Mauritius exclusive economic zone, a stretch of sea extending
200 nautical miles from the country’s shore.
This kind of a revision would seriously limit Mauritius’ ability to
prosecute Somali pirates, as acts committed on the high seas would be excluded
from Mauritius’ jurisdictional reach. In
the Seychelles, it appears that jurisdiction will not pose problems, in light
of the new universal jurisdiction statute that this country passed. One issue that remains unclear is whether the
Seychelles’ government will demonstrate an ongoing political willingness to
support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal
jurisdiction statute, the Seychelles’ authorities may prove unwilling for
policy reasons to extend their courts to prosecutions of Somali pirates who
have not threatened the Seychelles’ national interests in any way.
Another possible mode of
jurisdiction that countries like the Seychelles may adopt in the future is the
protective principle – a type of jurisdiction that allows for prosecutions of
acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction
has been used to prosecute offenses such as treason, counterfeiting of national
flags, currency and emblems, and immigration violations, it is possible that
acts of piracy could be conceived of as violating the national interests of
certain countries and thus prosecuted under this model of jurisdiction. The advantage of using the protective principle
may be in the fact that it could allow for the prosecution of acts committed in
preparation of piracy, that do not qualify as piracy itself. For example, certain acts that do not
constitute piracy may nonetheless constitute presumptive offenses, such as
sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal
jurisdiction is of no help because universal jurisdiction statutes only cover
true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the
other hand, could be used to cover these kinds of crimes and countries like the
Seychelles may successfully make the argument that the planning of a piratical
act could threaten their national interests, because the act of piracy, even if
committed on the high seas, could potentially be harmful to such countries if
it can be shown that pirates were about to target such countries’ vessels or
nationals or enter such countries’ exclusive economic zone. Using a combination of universal jurisdiction
to cover true acts of piracy with the protective principle to cover preparatory
offenses would enable countries like the Seychelles to prosecute the maximum
number of piracy-related violations occurring on the high seas.
The next issue related to the
prosecution of pirates for countries like the Seychelles is the ability to
prosecute Somali pirates in situations where the latter are detained by the
naval authorities of another country.
Here, the Kenya model of MOU’s which I discussed in my IntLawGrrls post proves useful. The
Seychelles, like Kenya, have thus concluded transfer agreements with the
European Union and the United Kingdom pursuant to which Seychelles has accepted
to prosecute Somali pirates detained by the EU or UK forces on the high
seas. The Seychelles’ Attorney General
has informed us that eleven successful piracy trials have already taken place
in the Seychelles’ courts; in all these cases the pirates had been detained by
the EU/UK forces and transferred to the Seychelles. The pirates have been prosecuted for the
offense of piracy existing under the Seychelles’ domestic criminal law. Moreover, pirates have been prosecuted under
the theory of “common intention,” a mode of joint criminal liability which
allows for combined prosecutions of all pirates involved in a single piracy
incident. This has enabled the Attorney
General to prosecute pirates in groups of ten or eleven, as well as to charge
all those involved in a piracy incident with the same offenses, irrespective of
their role in the incident itself. Thus,
the prosecutors in these cases did not have to bother with proving what exact
role each pirate played in the piracy incident.
Rather, each pirate is charged with the act of piracy itself and each
pirate will potentially be imposed the same criminal sentence. According to the Attorney General, convicted
pirates have received sentences ranging from five to twelve years of
imprisonment, and several other pirates are currently detained and awaiting
trial.
The next issue that countries like
the Seychelles face is prison capacity and the adequacy of detainment
conditions. The Seychelles as well as
Kenya have benefitted from financial assistance by major maritime nations as
well as the United Nations. Thus, in the
Seychelles a new prison wing has been built; this wing is “reserved” for the
detention of Somali pirates and arguably coincides with international detention
standards. This in turn will preempt the
non-refoulement human rights argument, that would prevent countries signatory
to major human rights treaties from transferring pirates to any place where
pirates would be likely mistreated. In
fact, the Seychelles has clearly demonstrated that its prosecutions are fair
and neutral, and that pirates are detained pre- and post-trial in humane
conditions. Capturing nations should not
face non-refoulement type issues when deciding whether to transfer detained
Somali pirates to the Seychelles’ authorities.
Finally, countries like the
Seychelles may be faced with post-detention issues – in other words, once
Somali pirates have finished serving their sentences, they may choose to apply
for political asylum in the Seychelles.
While nobody should be blamed for wanting to live in this tropical
haven, it is reasonable for the Seychelles’ authorities to question the need to
extend their country’s protection to individuals who have committed heinous
offenses such as piracy. It is one thing
to detain Somali pirates for a set number of years, it is quite another to
offer them political asylum and the possibility to freely live in the
Seychelles forever. I would be loath to
discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention
issues remain a complex issue that the Seychelles’ authorities may have to
ponder in the near future.
I look forward to blogging about
Somali piracy in the future, and hope that other countries, like Mauritius,
will follow in the footsteps of the Seychelles and seriously consider opening
their courthouse doors to piracy prosecutions.

Does Libya Have the "Right" To Prosecute Gadhafi's Son?

Luis Moreno-Ocampo, Prosecutor of the International Criminal Court (ICC), announced today that Libya could prosecute Saif al-Islam Gadhafi, son of the recently ousted and killed Libyan dictator Moammar Gadhafi (click here to read the story: http://www.cnn.com/2011/11/23/world/africa/libya-icc/index.html?hpt=wo_c2). Al-Islam, his father's heir
apparent, was captured by the Libyan authorities last weekend. Both Moammar
Gadhafi and his son had been indicted by the ICC on charges of crimes against
humanity earlier this year. Moammar Gadhafi was killed shortly after his
capture, but al-Islam was captured alive. Thus, Moreno-Ocampo originally announced that the ICC would try al-Islam- possibly because this is the only Gadhafi who would face
international justice, and possibly because such a high-profile prosecution
would enhance the legitimacy of the ICC and mark the last grandiose achievement
of the outgoing prosecutor, Moreno-Ocampo, whose term will be expiring at the
end of this year. However, in a stark reversal of position, Moreno-Ocampo announced that Libya had the right to try Gadhafi's son, if it could prove to the ICC judges that it had the capacity to
do so. In fact, Libyans will have to demonstrate to a panel of ICC judges that
their country has a functioning and independent judiciary. If ICC judges confirm that this is true, then al-Islam will face justice in Tripoli instead of at the Hague.
Many may wonder about Moreno-Ocampo's seemingly sudden
change of heart. The ICC prosecutor stated to the media today that Libyans "are proud," and that it would be a "matter of national pride to show that Libyans can do the case."
While this may be true, is Moreno-Ocampo correct in his assessment that Libyans
have the "right" to prosecute Gadhafi's son? Yes, but only if Libyans
can demonstrate a true capacity to conduct a fair, neutral criminal case
against Gadhafi's son. The ICC system functions based on the principle of complementarity
- the idea that national jurisdictions take precedence over international
prosecutions at the Hague, if they (national courts) are willing and able to prosecute
charged defendants. Thus, the ICC should only prosecute in those cases where the concerned state is unwilling and unable to prosecute a defendant. In the case of
al-Islam, the relevant inquiry becomes Libya’s willingness and ability to
prosecute him. While Libya is certainly "willing" to put Gadhafi's son before its judges, it is uncertain if it is "able" to do so. "Ability" in this context refers to the possibility of
conducting a fair and just trial, with impartial judges and the application of reasonable
national or international criminal laws. Under this standard, is Libya truly "able" to prosecute
al-Islam? This is what Libyans will have to prove to ICC judges, and if ICC
judges are satisfied, then arguably Libyans do have the right to prosecute Gadhafi's son.
Is Moreno-Ocampo's decision advantageous for the future of the ICC and its overall
reputation and legitimacy? In the context of Libya, this decision signifies
that any other Gadhafi collaborators caught by the new Libyan authorities could
also be prosecuted in Libya (that is, if ICC judges determine that Libya is
"able" to prosecute Gadhafi’s son), based on the al-Islam precedent. This could mean that the ICC may never get its hands on any Libyan defendants, despite several existing arrest
warrants. If national prosecutions in Libya
are conducted in a fair manner, them the lack of ICC prosecutions may not be
too disadvantageous. If Libyan prosecutions turn out to be a sham, however, then the ICC may appear as yet another international law organ: a player capable of issuing legal orders, but
incapable of enforcing them. And in terms of a global deterrence message to other rogue leaders across the world, a potential ICC prosecution carries significantly more weight than a national one where proceedings may be carried out behind closed doors and where the
international law community may have very little impact. Thus, leaders in countries like Yemen and Syria may not be particularly deterred in their abusive governance by a Libyan prosecution
of Gadhafi's son, especially if such Libyan prosecution is marred by irregularities. If ICC judges grant Libya the right to prosecute Gadhafi's son, and if Libyan prosecution of Gadhafi's son is not
properly conducted, Moreno-Ocampo may forever regret his decision.

Hoping for an Arab Summer: The Need for Democracy Building in North Africa

The world community applauded when popular uprisings throughout North Africa resulted in overthrows of long-standing dictators. As a consequence of the so-called Arab Spring, Tunisia, Egypt, and now Libya, managed to rid themselves of Ben Ali, Mubarak and Gaddafi and to position themselves for a transition to democracy. Alas, democracy seems to have bypassed this region of the world. In Tunisia, right wing political parties emerged and seem to be winning more and more popular ground (click here for the story: http://www.cnn.com/2011/10/28/opinion/adib-moghaddam-tunisia-islam-shift/index.html?iref=allsearch). It is questionable whether Islamist victory in Tunisian elections would be compatible with true democracy, allowing for freedom of speech and racial and gender equality. In Egypt, human rights activists who were instrumental in bringing down Mubarak now face detention and the threat of torture at the hands of the new government's authorities. Allegations surfaced that a prominent activist was recently tortured to death while in official state custody (click here for the story: http://www.cnn.com/2011/10/28/world/africa/egypt-detention-death/index.html), while another human rights crusader was recently detained at one of the most notorious Cairo prisons. By all accounts, the current Egyptian government consists of the same military leaders who supported Mubarak, and cynics have opined that the military took advantage of the Arab Spring to oust Mubarak and reclaim all the power for itself. Thus, any prospect of a true democracy seems far-fetched in Egypt today. In Libya, UN Security Council authorized a military intervention to protect civilians against Gaddafi's forces; such intervention resulted in the ousting, and ultimately, capture and death of Gaddafi. Now, rivalries rage among fighting regional militias, all vowing for a prominent position in the new Libyan government (click here for the story: http://www.cnn.com/2011/11/02/world/africa/libya-infighting/index.html). Once again, it is uncertain whether democracy will prevail.

Such unfortunate developments in North Africa highlight the need for further democracy building. The world powers cannot stop at military intervention; rather, they should invest brain power and resources in the rebuilding of democracy post-Arab Spring revolutions. As we all know, revolutions may result in the creation of new, even more troubling regimes, and Ben Ali, Mubarak and Gaddafi could be quickly replaced by rogue leaders of the same caliber and propensity toward dictatorship. In order to prevent this outcome and to foster stability in North Africa, world super powers should participate enthusiastically in the reshaping of a new democratic Tunisia, Egypt, and Libya. If world powers embrace this role, we may experience an Arab Summer: a prospering of democracy in these post-revolution societies.

The Iranian Murder Plot: A True Attempt or Fabrication?

News spread over the last few days that members of the Iranian Revolutionary Guard Corps- Quds Forces plotted to assassin the Saudi ambassador in Washington, D.C. (click here for one of the news stories: http://www.cnn.com/2011/10/12/justice/iran-saudi-plot/?hpt=hp_t1). If true, this allegation would be more than serious for Iran: it could face diplomatic and economic sanctions, as well as a possible military strike by the United States. Carrying out murder on foreign soil is a serious affair and a violation of sovereignty of the country where the murder is carried out. If this murder plot were true, then a retaliatory strike by the United States against Iran could be justified under international law.
World leaders around the globe seemed to accept the truthfulness of the plotted murder story. U.S. Secretary of State, Hillary Clinton, called for accountability for Iran, and stated that Iran's actions were reckless and would undermine international norms. David Cameron, the British Prime Minister, stood by the United States' allegations and proclaims Britain's support of its long-standing ally. The French Foreign Ministry called the plot "an outrageous violation of international law." And the Saudi prince, Turki al-Faisal, an important member of the Saudi royal family, vowed that "someone in Iran" would "pay the price" for this kind of behavior.
However, the alleged Iranian murder plot reads more like a mystery novel than the work of a serious governmental security force. First, there seems to be no apparent motivation for the attempted murder. Although Iran is a predominantly Shi'a state, whereas the Saudis are mostly Sunni Arabs, this fact alone does not justify the attempted murder of a Saudi ambassador. Moreover, the ambassador was not a very prominent member of the Saudi ruling regime, and it is doubtful that Iran would achieve anything significant by eliminating this lone, mid-level Saudi diplomat. Second, even if Iran had wanted to eliminate the Saudi ambassador, it would be ludicrous to plan the attack in the United States, let alone in Washington D.C. Iran could have carried out the attack in any other third country that the ambassador was visiting, such as Jordan or Syria or Yemen - a country which would not have the political and military cache of a super power, like the United States. Third, it is incredulous that the Iranian Quds Forces would attempt to contact a Mexican drug cartel to execute the murder. Quds forces certainly have the necessary training and capability to execute any type of murder, which casts doubt on their willingness to involve Mexican organized crime in this affair. Moreover, Mexican drug cartels are profitable businesses, not interested in entering into risky ventures on American soil, such as the execution of a Saudi ambassador. It is extremely likely that Iranian Quds Forces would have known this about the Mexican drug cartels, as Iranians themselves have faced drug-related problems coming from Afghanistan. Thus, it is more than likely that Quds Forces would have never thought of involving the Mexicans in an attempted murder of a foreign diplomat in Washington D.C. Finally, even if Quds Forces truly had wanted to contract out the execution to a Mexican drug cartel, one would have to wonder about the sloppiness of the alleged operation. Numerous international telephone conversations were taped, where the parties were allegedly conspiring about the murder; moreover, money that was to be paid for the execution was internationally wired. Anyone of the Quds Forces' savvyness would know not to discuss murder plans over international phone lines, and not to wire money into the United States, as these actions would necessarily trigger FBI scrutiny.
In light of the above observations, I have to wonder about the truthfulness of the allegations against Iran in the attempted murder plot. Is this just an American tactic, fabricated in order to increase tension between the United States and Iran, in order to deflect public attention from the ongoing financial and economic crisis within America? Is this similar to the weapons of mass destruction story in Iraq - an allegation fabricated in order to increase public support of an attack on Iraq, in order to oust Saddam Hussein? Hillary Clinton in her remarks was careful to indicate that the American response against Iran would be purely diplomatic and economic (sanctions), and that no military response would be attempted as of now. It is almost as if she did not believe the story herself. Other commentators have pointed out that Iran could very well be the culprit here. Quds Forces have certainly carried out other murders on foreign soil, and this kind of an attack would fit perfectly within the current Iranian regime's provocative tactics. Furthermore, there seems to be some solid proof against the persons involved in the alleged scheme - enough to warrant a federal indictment and the global announcement about the murder plot.
More news and a further investigation into the story are certainly warranted. As of today, I remain skeptical about the veracity of the attempted murder plot, as I curiously await more information.

The North African Revolutions: The End of an Era

The start of 2011 has been revolutionary in North Africa. Civil unrest exploded first in Tunisia, when demonstrators managed to oust long-time ruler, Ben Ali, after days of protests threatening to transform into a civil war. The people of Egypt followed. Following two weeks of clashes between thousands of civilian protesters in Cairo and elsewhere, and the Egyptian police and army forces, the Egyptian president, Mubarak, announced that he was stepping down. Libya followed: thousands of protesters invaded the streets of Tripoli and other major cities, demanding the abdication of power by Colonel Gaddafi, who has ruled Libya with an iron fist for 41 years. However, unlike in Tunisia and Egypt where police and army forces were unwilling to inflict serious damage on civilian protesters, eyewitness reports indicate that Gaddafi employed ruthless mercenaries to fire and shoot civilians. As of today, Gaddafi remains officially in power, although it appears that parts of eastern Libya have already fallen under the protesters' control.
The West has been cautiously supportive of these revolutions. All three of these rulers, Ben Ali, Mubarak and Gaddafi, had been supported by the West for various reasons, such as their renouncement of the Soviet philosophy during the Cold War, their willingness to trade in oil and other important commodities, their commitment to abide by nuclear non-proliferation regimes, and their importance in the geo-political equilibrium of the North African region. Thus, it was somewhat embarrassing for the Great Powers of the West to witness these revolutions, all rooted upon democratic principles which the western democracies embrace. The Great Powers were forced to applaud the revolutions, but remained cautious to abandon the dictators right away, fearing what such quick cutting of support might do to the regional stability. President Obama and Secretary of State Clinton urged Mubarak to step down, if his people no longer wished to have him as their leader. Similarly, they implored Qaddafi to leave peacefully - to no avail.
On March 1, the United Nations Security council voted unanimously to refer the Libyan situation to the International Criminal Court (ICC). In fact, the ICC, according to the referral, should investigate violations of international law by the Libyan security forces in their treatment of the civilian protesters. It is somewhat unsurprising that the Security Council so swiftly condemned Gaddafi. Qaddafi has been openly critical of the ICC, and was vocal in condemning the court's decision to issue an arrest warrant for the Sudanese president, Al-Bashir. Libya is not a member of the ICC, and has not been cooperating with the tribunal. Moreover, historically, Qaddafi has offended the west many times. He was the main culprit in the Lockerbie bombings, and sanctions that had been imposed on Libya were lifted only relatively recently, when Gaddafi accepted to cooperate in a nuclear non-proliferation program. Thus, it is hardly a surprise that western leaders would not support Qaddafi today, and that they would refer his alleged crimes to the ICC. We can only hope that Gaddafi will step down before inflicting more needless violence upon the Libyan population.
The three revolutions in North Africa are not isolated in the world. Unrest has recently been plaguing Bahrain, as well as Gabon. Other non-democratically ruled nations may follow. Similar to the fall of the Iron Curtain in 1990, now, 20 years later, we are witnessing another wave of revolutions against oppressive dictatorships and toward the idea of governance through democratic principles. Democracy has been prevailing and may turn out to be the only legitimate form of government in the 21st century.

The Southern Sudan to Vote on Secession: A Precedent-Setter or Sui Generis?

The people of Southern Sudan recently voted in a public referendum on whether they want to separate (secede) from the state of Sudan (click here for the full story: http://www.cleveland.com/world/index.ssf/2011/01/voters_in_southern_sudan_head.html). Sudan has been plagued by a bloody civil war for the last decade. The vote in a week-long referendum is the last step in a United States-backed peace plan. However, tensions and uncertainty remain. For one, the vote itself has been accompanied by reports of violence (click here for the full story: http://www.cbc.ca/world/story/2011/01/10/sudan-referendum-day2.html). More importantly, it is unclear how the Sudanese president, Omar al-Bashir, will react to the results of the referendum. Full results are not expected before February, and although al-Bashir has promised to allow the south to secede if the results of the referendum pointed toward that direction, it is unclear whetheral-Bashir will respect his word. After all, he has been indicted in the International Criminal Court (ICC) and has been accused of sponsoring violence in the southern region of Darfur, which has claimed the lives of thousands of Sudanese over the last several years. The south contains most of the country's oil reserves, and is an important natural resource to the Khartoum government. The civil war in Sudan has opposed the mostly Muslim Arab north and the Christian and animist south, with the north attempting to retain its control over the oil-rich south. Thus, despite al-Bashir's assurances to the contrary, it is uncertain that the northern government will respect its promise and allow the south to secede peacefully. According to the 2005 peace plan, if the south were to vote yes on the issue of secession, then the actual secession wouldn't take place until July 2011, and further negotiations may be needed to hash out issues like border lines, water rights, and the Sudanese overwhelming debt.
The Sudanese secession triggers important issues in international law and politics. Secession, although allowed under international law, remains frowned upon in practice. Examples of successful secession have been rare, excluding possibly the most recent example of Kosovo. In that case, the International Court of Justice even went as far as to proclaim that the Kosovar unilateral declaration of independence, leading to its secession from Serbia, was legal. Yet, the United States State Department, as well as several other governments, although supportive of Kosovo, have called its case sui generis, probably for fear of precedent-setting for future separatist groups. In fact, such groups in places as South Ossetia and Abkhazia have already relied upon the Kosovo precedent to claim secession rights. Significantly, countries which haven't recognized Kosovo as a new state virtually all have important separatist movements functioning within their borders and are too afraid to support even a sui generis Kosovo. Thus, what will the recent example of southern Sudan do for international law and the right to secession therein? Is Sudan sui generis like Kosovo, or is it a precedent for the idea that if a people's rights are abused by its mother state, it accrues the right to so-called external self-determination, leading toward remedial secession. If the people of southern Sudan deserve independence, should Tibetans, South Ossetians, and Abkhazians also get their own states? Should courts, scholars and politicians fully endorse the right to remedial secession in all such instances? Or, will the world witness a bunch of sui generis Kosovos and southern Sudans in the future, without any significant changes brought thereby to the international law of secession? I fear the latter, but as an academic support the former. And hope for a peaceful and precedent-setting secession of southern Sudan.