Pirates

[Wraith]

I haven't had the time nor patience to read through every post, and such if my suggestion has already been made, I apologise in advance.

I would suggest, in a situation like this, that one possible course of action is to tackle these pirates in the same way America did in Colombia with the drug lords. As these operations are business like and well organised, they are very similar to the drug cartels operating in Colombia. The use of organisations such as the now officially 'dismantled' ISA to gather a variety of intel such as humint and a variety of electronic forms of intelligence gathering to paint a picture of the layout of the hierarchy of the pirate's organisation. After said intel is gathered and consolidated, passing it on to Spec Ops teams would allow them to target weaker points in the hierarchy and slowly dismantle it person by person until it collapses. The co-operation between the intel services and the Ops teams is vital, but it obviously worked in Colombia, so why not try it with the pirate organisations. instead of just trying to protect the ships, why not eradicate the problem from its base. The use of satellite imagery and humint should provide enough information to start such a process, with attacks on known bases and ships while picking out and removing key figures in the structure of the organisation.

 

[Feanor]

I think the main problem is committing the necessary resources to deploy these forces in what is essentially a state-less territory with various warlords in control. In Colombia there is a government with which the US could cooperate.

 

[Wraith]

Ahh, point taken and noted. Still, it would be possible, just far more time consuming to set up and keep running, with trying to please the warlords and all.

 

[zoolander]

The thing that makes me mad is the fact that navies around the world arrest pirates from time and time but they then release them. I understand they dump the evidence, but sometimes they have something(bullet casing, etc.) We should prosecute them and not let them off. If laws are not enforced what is the point of laws? This is like trying to rob your local liquor store, getting arrested and then being let go! This is ridiculous!

 

[OPSSG]

The thing that makes me mad is the fact that navies around the world arrest pirates from time and time but they then release them.

(A) In many cases, the navies would seek to have the pirates captured in international waters tried locally in Africa and in most cases, this would mean imposing on Kenya's legal system. There is already bilateral agreements in place between US/UK and Kenya. Several countries are now calling for piracy cases to be prosecuted in the Kenyan port city of Mombasa and to establish a special piracy tribunal in Mombasa. Previously the U.S. turned to Kenya in 2006 to try 10 pirates captured by one of its warships. Kenyan Penal Code, Section 69 provides that:

“Any person who in territorial waters or upon the high seas commits an act of piracy jure gentium is guilty of an offence of piracy.”​

These 10 pirates were convicted and are serving prison sentences in Kenya of seven years each. Further, a US $1.3 million programme to boost the criminal justice systems of Kenya, Djibouti, Yemen and Tanzania was approved in Dec 2008.

(B) In the case the the sole surviving pirate in the Maersk Alabama hijacking incident, he will most likely be tried in New York, as the US has jurisdiction. The Maersk Alabama is a US flagged ship and the laws of the US apply.

(C) On 2 Jan 2009 a Danish warship arrested pirates who attempted to hijack Dutch Antilles cargo ship Samanyulo in Gulf of Aden. However, on 16 Jan 2009 Danish Government announced pirates will be handed over to the Dutch for prosecution (as Denmark may not have jurisdiction to prosecute). [Following text in 'blue' deleted to reflect gvg's comments on Dutch law: Dutch have jurisdiction because the vessel that was attacked was registered in Netherlands Antilles.]

(D) For a Singapore flagged ship, if an act of piracy occurs, Section 130B of the Singapore Penal Code applies, and the provisions are as follows:

(1) A person commits piracy who does any act that, by the “law of nations”, is piracy.

(2) Whoever commits piracy shall be punished with imprisonment for life and with caning with not less than 12 strokes, but if while committing or attempting to commit piracy he murders or attempts to murder another person or does any act that is likely to endanger the life of another person he shall be punished with death.​

I understand they dump the evidence, but sometimes they have something(bullet casing, etc.) We should prosecute them and not let them off. If laws are not enforced what is the point of laws? This is like trying to rob your local liquor store, getting arrested and then being let go! This is ridiculous!

(E) 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS) provides the legal framework setting out which States have jurisdiction over illegal activities at sea. Dr Bev Mackenzie has written a guide explaining 'What is UNCLOS' and he provides an explanation of the key provisions.

(1) As of 5 Feb 2009, 156 States and EU are parties to the 1982 UNCLOS. Other than the US, all other States with warships in the area are parties to the 1982 UNCLOS. BTW, the piracy provisions in 1982 UNCLOS are identical to those in the 1958 Convention on the High Seas.

(2) Article 58(2), provides that the piracy provisions are applicable in the exclusive economic zone (EEZ) and under Article 107, the navy ships on patrol are entitled to seize the pirate ships. If a vessel is hijacked by pirates and remains under their control, it is a pirate ship.

(3) The right of all States to seize pirate ships on the high seas and arrest persons on board is also an exception to the principle of exclusive jurisdiction of the flag State and these rules regarding piracy also apply to ships in the EEZ of any State.​

(F) Under the United Nations Charter, the Security Council (SC) has primary responsibility for the maintenance of international peace and security. If the SC acts under Chapter VII of the Charter, its decisions are legally binding on all UN members and they prevail over obligations in other conventions. And under SC Resolution 1816 of 2 June 2008 (authority currently valid till Dec 2009 under SC Resolution 1846), States cooperating with the Transitional Somali Federal Government (TSFG) in the fight against piracy and armed robbery at sea off the coast of Somalia, for which advance notification has been provided by the TSFG to the Secretary‐General, may:

(1) Enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery at sea, in a manner consistent with such action permitted on the high seas with respect to piracy under relevant international law; and

(2) Use, within the territorial waters* of Somalia, in a manner consistent with action permitted on the high seas with respect to piracy under relevant international law, all necessary means to repress acts of piracy and armed robbery.​

(G) Just having a warship presence in the area is insufficient, there must be facilities for intelligence collection, a law enforcement detachment to preserve evidence and holding facilities issues must also be addressed as part of the anti-piracy naval logistics. The US led combined task force 151 (CTF 151), have provided for facilities in the USNS Lewis and Clark to hold up to 26 captured piracy suspects and the flag ship of CTF 151, the USS San Antonio can hold some more piracy suspects.

*Note: Territorial waters is waters within the 12 nautical miles limit (22 km) of the Somalia coast.

 

[LazerLordz]

(D) For a Singapore flagged ship, if an act of piracy occurs, Section 130B of the Singapore Penal Code applies, and the provisions are as follows:

(1) A person commits piracy who does any act that, by the “law of nations”, is piracy.

(2) Whoever commits piracy shall be punished with imprisonment for life and with caning with not less than 12 strokes, but if while committing or attempting to commit piracy he murders or attempts to murder another person or does any act that is likely to endanger the life of another person he shall be punished with death.​

I wonder if this means our lads can detain any pirates for acts committed, and bring them back for trial here.

 

[OPSSG]

I wonder if this means our lads can detain any pirates for acts committed, and bring them back for trial here.

If an act of piracy is committed against a Singapore flagged ship outside of Somali territorial waters (ie. in international waters), legally on the question of jurisdiction, there should be no problem bringing back these pirates back to Singapore for trial. The logistics (including preserving the evidence and having relevant witnesses) of such a measure is another problem and there is also the question of how to repatriate the accused back to Somalia if or when the jail term is over.

If other navies are involved in the rescue of the Singapore registered merchant ship, I'm sure they would not be too keen to send their naval officers to Singapore (in the middle of their naval patrol in that area) for the duration of the trial. That is why it is crucial to have our own naval presence there, so that our people can potentially be the ones responding. However, given the large area, it would be a long, long stretch to say that the RSN can be on-scene (with just one naval vessel deployed).

I've simplified the legal issues so that forum members can read and understand them but the actual legal and practical reality of prosecuting Somali pirates in Singapore (under our common law system) is a bit more complicated when it actually happens. It's got to be done but it is going to be a pain. There may be other applicable charges and the Singapore Evidence Act is relevant. Further, as the death penalty will be in play, the Singapore High Court will have jurisdiction.

 

[OPSSG]

I wonder if this means our lads can detain any pirates for acts committed, and bring them back for trial here.

I've simplified the legal issues so that forum members can read and understand them but the actual legal and practical reality of prosecuting Somali pirates in Singapore (under our common law system) is a bit more complicated when it actually happens. It's got to be done but it is going to be a pain. There may be other applicable charges and the Singapore Evidence Act is relevant. Further, as the death penalty will be in play, the Singapore High Court will have jurisdiction.

I choose not to deal with the conflict of laws issue (as this is a matter for legal experts) for piracy matters within territorial waters as that is fairly complex and I also don't expect Singapore flagged commercial ships to voluntarily enter Somalia's territorial waters. Further, I would also have to deal with the applicability of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and it's conflicting provisions relative to the 1982 UNCLOS. If you are interested, please read paragraphs 42 to 49 of the link previously provided for some basic information.

 

[LazerLordz]

I choose not to deal with the conflict of laws issue (as this is a matter for legal experts) for piracy matters within territorial waters as that is fairly complex and I also don't expect Singapore flagged commercial ships to voluntarily enter Somalia's territorial waters. Further, I would also have to deal with the applicability of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) and it's conflicting provisions relative to the 1982 UNCLOS. If you are interested, please read paragraphs 42 to 49 of the link previously provided for some basic information.

You've provided a lot of information. Thanks!

It does seem that we are fairly covered legally in this aspect.

 

[OPSSG]

You've provided a lot of information. Thanks!

It does seem that we are fairly covered legally in this aspect.

You are welcome.

Under our common law system (which is at its heart, an adversarial system), the burden of proof is on the prosecution to proof each element of his case for every charge beyond a reasonable doubt. As it is often said, constitutional law is the last refuge of scoundrels and criminals. The more complex the legal issues, the more procedural, substantive and constitutional law issues the defence lawyers for the alleged pirates can bring up to get their clients off.

Further, there is a presumption against the extraterritorial application under common law. The leading case dealing with this issue under Singapore law is Public Prosecutor v Taw Cheng Kong [1998] 2 SLR 410, a case that went to the Court of Appeal. PP v Taw Cheng Kong confirms that the extraterritorial provisions under the Singapore Prevention of Corruption Act is applicable and not inconsistent with article 12(1) of the Constitution of the Republic of Singapore.

Since the alleged pirates (if any) will have no source of income, the defence lawyer in Singapore may have to do the work pro-bono. The defence lawyer is likely to be a senior counsel in complex capital cases involving foreigners, as a flock of human rights organizations will usually descend to observe capital cases to ensure that the human rights of such alleged pirates, if any, are properly protected and the prosecution's case robustly challenged by defence counsel.

The fact that Danish Government handed over the pirates involved in the attempted to hijack the Samanyulo (a Dutch Antilles ship) to the Dutch for prosecution gives us an indication of the complexity of the legal issues (in relation to the conflict of laws) that can arise in the prosecution of pirates under our respective national laws and legal systems.

I've tried my best to state the issues accurately without going too much into the complex legal details that is frankly dry and boring.

 

[gvg]

....
(C) On 2 Jan 2009 a Danish warship arrested pirates who attempted to hijack Dutch Antilles cargo ship Samanyulo in Gulf of Aden. However, on 16 Jan 2009 Danish Government announced pirates will be handed over to the Dutch for prosecution (as Denmark may not have jurisdiction to prosecute). Dutch have jurisdiction because the vessel that was attacked was registered in Netherlands Antilles.
.....

That's not correct. The Dutch have no jurisdiction because the vessel was registered in the Netherlands Antilles. The Netherlands Antilles are a different country altogether, even if they are part of the Kingdom of the Netherlands (which is bigger than the Netherlands itself, it includes the separate countries in the Carribean).
The Dutch have jurisdiction because their laws make it possible to prosecute anyone they arrest for piracy in international waters, it doesn't have to involve Dutch nationals or vessels registered in the Netherlands.
In this last episode, last sunday, they just didn't contact the appropriate authorities in the Netherlands and ask them what they should do with the pirates.
I'm pretty sure the Ministers of Justice, Defence and Foreign Affairs were pretty glad they made this mistake.

 

[gvg]

error, repost

 

[OPSSG]

The Official Website of Denmark says:

Navy to hand over pirates

Denmark lacked the jurisdiction to prosecute captured Somali pirates, but now the Netherlands has volunteered to take the case

The Defence Ministry confirmed that five Somali pirates being held on Danish ship Absalon will be handed over to the Dutch Justice Ministry for prosecution.

The pirates were captured on 2 January after attempting to hijack a Netherlands Antilles-registered cargo ship. The cargo ship fired a flare at the pirate boat, which caught fire and resulted in the Absalon rescuing the pirates and sinking their vessel.

Concerns were raised about the Absalon having the free the pirates as Denmark has no legal jurisdiction over them. The Absalon previously had to release 10 pirates for the same reason and could not hand them over to Somali authorities for fear of reprisals.

Nine EU countries have banded together to actively pursue pirates in the Gulf of Aden off the coast of north Africa and are sending a fleet to the area to relieve the Nato mission currently patrolling the waters. However, due to EU opt-outs, Denmark is not part of the new task force.

A spokesman for the ministry said that the ‘Dutch government wants to start the process for the handover’, but that details of how and when have not yet been agreed.

Defence Minister Søren Gade said he was relieved by the news.

‘It sends a strong signal to the pirates in the area that there are countries which can and will prosecute them if they are captured in connection with piracy,’ Gade told public broadcaster DR.

Please see this link for another conflicting report and I can say with some confidence that many reporters posting reports on the Somalia pirates understand much, much less about the applicable maritime laws than me, even though I don't consider myself an expert in this area.

That's not correct. The Dutch have no jurisdiction because the vessel was registered in the Netherlands Antilles....

The Dutch have jurisdiction because their laws make it possible to prosecute anyone they arrest for piracy in international waters, it doesn't have to involve Dutch nationals or vessels registered in the Netherlands.

While I understand your point on the Netherlands Antilles on the 1982 UNCLOS and the principle of exclusive jurisdiction of the flag State, in this case, I have no idea what you are talking about in your post. I would appreciate it if you could provide me with a link to support your point that I am not correct.

Currently, your critique lacks details and the relevant applicable Dutch law that applies to prosecute the pirates. I don't mind being corrected, especially if you have more updated information or other information for me to consider.

 

[gvg]

Yes, I know the Dutch asked for a handover. That handover has happened already.

I'm saying that since the Netherlands Antilles are a seperate country, that the reason it says "Netherlands" before Antilles is, likely, the reason the Dutch want to prosecute, not why they can.

Why they can is because the dutch Wetboek van Strafrecht (Criminal Law) in Titel 1, Artikel 4 states that Dutch Criminal Law is applicable to anyone outside the Netherlands who renders themselves guilty to:
....
5. One of the crimes described in articles ...... 381-385....
....

And articles 381-385 are about piracy.

You can read the Dutch Wetboek van Strafrecht here (all in Dutch):
http://wetten.overheid.nl/BWBR0001854/geldigheidsdatum_13-04-2009

You can also read pages 7-8 (paragraph 'hoe om te gaan met opgepakte piraten') from this letter on the Dutch MoD site. It's a letter by all 3 Ministers of Defence, Justice and Foreign Affairs to Dutch parliament (also in Dutch.):
http://www.defensie.nl/_system/hand...- regeringsreactie Knoops[1]_tcm46-130392.pdf

 

[OPSSG]

Yes, I know the Dutch asked for a handover. That handover has happened already.

I'm saying that since the Netherlands Antilles are a separate country, that the reason it says "Netherlands" before Antilles is, likely, the reason the Dutch want to prosecute, not why they can.

Why they can is because the dutch Wetboek van Strafrecht (Criminal Law) in Titel 1, Artikel 4 states that Dutch Criminal Law is applicable to anyone outside the Netherlands who renders themselves guilty to:
....
5. One of the crimes described in articles ...... 381-385....
....

And articles 381-385 are about piracy.

1. Thanks, your follow up post is clearer.

You can also read pages 7-8 (paragraph 'hoe om te gaan met opgepakte piraten') from this letter on the Dutch MoD site. It's a letter by all 3 Ministers of Defence, Justice and Foreign Affairs to Dutch parliament (also in Dutch.):
http://www.defensie.nl/_system/hand...- regeringsreactie Knoops[1]_tcm46-130392.pdf

2. BTW, I have taken a look at the letter on the Dutch MoD site and it looks very interesting as the letter seems to deal with both the 1982 UNCLOS and the SUA Conventions. Unfortunately, I don't understand the Dutch language it is written in. If you come across an English version of this letter (or can have it translated), I would appreciate it if you could post it.

That's not correct. The Dutch have no jurisdiction because the vessel was registered in the Netherlands Antilles....

The Dutch have jurisdiction because their laws make it possible to prosecute anyone they arrest for piracy in international waters, it doesn't have to involve Dutch nationals or vessels registered in the Netherlands.

3. Since I can't read the contents of the letter on the Dutch MoD site, I reserve my comments on the matter.

4. In other legal news relating to the Somali pirates:

APRIL 22, 2009 - Somali Is Charged With Piracy
- Accused Leader of Crew That Attacked U.S.-Flagged Ship Arraigned in New York Court

NEW YORK -- A Somali man was charged in federal court Tuesday with piracy and other crimes stemming from a foiled attack on a U.S.-flagged cargo ship and the kidnapping of its captain off the African coast.

Abduwali Abdukhadir Muse was taken into custody April 12 following a five-day standoff on the high seas, after U.S. Navy Seals shot and killed three men holding Maersk Alabama Capt. Richard Phillips hostage in a lifeboat.

Mr. Muse was charged in a five-count criminal complaint with piracy; conspiracy to seize a ship by force; discharging a firearm and aiding and abetting the discharge of a firearm in a conspiracy to seize a ship; conspiracy to commit hostage taking; and brandishing a firearm and aiding and abetting the brandishing of a firearm during a conspiracy to commit hostage taking.

The piracy charge is a toughly worded and rarely used throw-back to another era: "Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."

According to a statement by acting U.S. Attorney Lev Dassin and others, Mr. Muse conducted himself as the pirates' leader and demanded, among other things, that the captain stop the Maersk Alabama. The ship's crew fended off the attackers, and after they took the captain hostage in a lifeboat and at times threatened to kill him, Mr. Muse requested and was permitted to board the Navy's USS Bainbridge, the statement said.

According to authorities, Mr. Muse then demanded safe passage for him and his confederates in exchange for the captain's freedom. After Navy sharpshooters killed the others, Mr. Muse was detained and turned over to the Federal Bureau of Investigation on April 20.

U.S. Magistrate Judge Andrew J. Peck ordered that Mr. Muse remain in detention following his appearance in U.S. District Court, and his lawyer didn't object. A preliminary hearing is set for May 21.

Confusion about Mr. Muse's age prompted the judge to close the courtroom briefly to consider whether he is a juvenile. The judge said the defendant's father, who spoke by phone through an interpreter, gave inconsistent testimony: After saying that Mr. Muse, his eldest son, was born in November 1993 -- which would make him 15 years old -- the father later said his fourth son was born in 1990.

Assistant U.S. Attorney Brendan McGuire said Mr. Muse told Navy personnel he is as young as 16 and as old as 26. Mr. Muse later told authorities he is 15, but then said he is 18 and apologized for lying, Mr. McGuire said. Mr. Muse's brother also indicated Mr. Muse is 18, Mr. McGuire said.

Mr. Muse, speaking through an interpreter, said little before the hearing was closed, other than short responses to the judge. When asked if he understood that attorneys were being appointed for him, Mr. Muse said, "I understand. I don't have any money."

As expected, the alleged Maersk Alabama Somali pirate has been charged in NY on multiple counts.

 

[gvg]

OPSSG, you can also read this article in English. But it doesn't mention all the Wetboek van Strafrecht stuff.
http://www.google.com/hostednews/ap/article/ALeqM5jteUk4rIeHAfTBTDfxM_oIzxEHnAD97MUACG0

There is no English version of that letter, because it's for the Dutch Parliament.

 

[zoolander]

screw the courts, we should let the bullet do the ruling. See if he lives after a few shots to head. :nutkicknfloorl:nfloorl::vamp

 

[swerve]

I see. You approve of murder by the agents of the state. Do you also think that your local police should be allowed to kill anyone they catch committing a crime? Take them down to the cells bullet in the head - save the cost of a trial, save feeding & housing him in prison?

That is exactly the same as you are suggesting here.

BTW, I find it rather sickening that you think killing human beings is amusing.

 

[OPSSG]

@zoolander, while I understand your frustration with the Somalia pirates and the trouble they cause, I have to agree with swerve that we need to respect the 'rule of law'. Our navies patrolling the area should have robust rules of engagement (ROEs) but these ROEs are drafted in accordance the relevant laws. IMHO, executing captured suspected Somalia pirates/fishermen cannot be an option, if we are to respect the 'rule of law'.

@swerve, I forgot to thank you for explaining the problems with the speed limitation of the Endurance Class (for performing certain roles) via PM a few days earlier.

@gvg, thanks for the links, I have enjoyed reading them and you have triggered my interest in the Dutch Wetboek van Strafvordering (criminal procedure code) and Wetboek van Strafrecht (criminal code). I did not know that "piracy is the oldest international crime in Dutch law books and can be prosecuted regardless of where it happens and who is targeted."

Please forgive my ignorance of the Dutch civil law system (which is related to the French Code Civil) as I live in a common law country. Please read my earlier post on the presumption against the extraterritorial application under Singapore's common law, which led me to assume that it was necessary for specific enabling legislation (coupled with relevant case law on key legal principles) for the extraterritorial application of relevant laws to prosecute pirates for the Dutch. In Singapore's case, there are specific provisions under the Singapore Penal Code and our country is a party to the 1982 UNCLOS.

 

[Sea Toby]

I see. You approve of murder by the agents of the state. Do you also think that your local police should be allowed to kill anyone they catch committing a crime? Take them down to the cells bullet in the head - save the cost of a trial, save feeding & housing him in prison?

That is exactly the same as you are suggesting here.

BTW, I find it rather sickening that you think killing human beings is amusing.

If the criminals point a gun at a policeman, the policeman has my blessing to shoot the criminal. And if a criminal uses a gun to commit a crime, the policeman has my blessings to shoot the criminal. Gun laws should be a two way street for the police, or the police end up dead. There should be rules of engagement with the police handling guns.