Hawaiioceanlaw.com

Defending Against Pirates - Guidelines for Self Defense and Firearms

Captain Bryant has a great post on three recent Coast Guard Port Security Advisories related to defending U.S. flagged, commercial vessels from the threat of piracy.  The three advisories are available for download at his blog.

From the Coast Guard's advisory:

Working with our interagency partners we have identified at least three options under which firearms could be exported and used aboard vessels in compliance with the ITAR, 1) obtaining a temporary export license (DSP-73), 2) temporarily exporting firearms and ammunition under an exemption to the ITAR, and 3) purchasing foreign firearms and filing for a temporary import license (DSP-61) when entering U.S. ports. The option that provides the most flexibility for an owner or operator of a vessel would be to obtain a DSP-73 temporary export license in accordance with 22 CFR 123.5. (Please note that in order to apply for a DSP-73, you must first register with the Department of State. Information on registering is available below.) This license is valid for up to four years, may be used for multiple entries and exits, and would require the operator to identify and list on the license application the firearms or other defense articles (e.g., ammunition) to be carried aboard the vessel. Once the license is obtained the operator could then stow the firearms on board the vessel in a U.S. port and keep them stored aboard the vessel until needed for use within the High Risk Waters by the crew or contracted security teams. Prior to entering or exiting the United States the license holder or their authorized freight forwarder would present the DSP-73 to CBP officials as part of clearing customs. Prior to leaving the United States the license holder or their authorized freight forwarder would have to submit the Electronic Export Information (EEI) through the Automated Export System.

To be sure, this only applies to U.S. vessels carrying firearms when departing U.S. ports and there is a personal exemption detailed in the post. 

Right Service to Combat Piracy - Coast Guard or Navy...How About Both?

Last week, I posted an Op-Ed from Newsweek asserting that the Coast Guard was the better service to address Somali piracy (post here).  The "war" on drugs has required the use of Coast Guard Law Enforcement Detachments (LEDETs) embarked on Navy ships (typically, less capable frigates) to extend the reach of U.S. law enforcement without requiring the nation to build more Coast Guard cutters.  The model works well and has been employed in the Persian Gulf since the first Gulf War.  In fact, the first Coast Guardsman killed in combat since Vietnam, Petty Officer Nathan Bruckenthal, lost his life with two sailors while intervening in a suicide bomb attack on an Iraqi oil platform in 2004.

Per the Navy's post on flickr.com:

GULF OF ADEN (May 13, 2009) Members of a visit, board, search and seizure (VBSS) team from the guided-missile cruiser USS Gettysburg (CG 64) and U.S. Coast Tactical Law Enforcement Team South Detachment 409 capture suspected pirates after responding to a merchant vessel distress signal while operating in the Combined Maritime Forces (CMF) area of responsibility as part of Combined Task Force (CTF) 151. CTF 151 is a multinational task force established to conduct counter-piracy operations under a mission-based mandate throughout the CMF area of responsibility to actively deter, disrupt and suppress piracy in order to protect global maritime security and secure freedom of navigation for the benefit of all nations. (U.S. Navy photo by Mass Communication Specialist 1st Class Eric L. Beauregard/Released) 

 

 

 

Newsweek Article - More Opinions On Somali Piracy - Coast Guard vs. Navy

Found this interesting article in Newsweek which suggests that the U.S. Coast Guard and not the Navy is better suited to address the Somali piracy situation.

The counterpiracy plan outlined Wednesday by Secretary of State Hillary Clinton was short on specifics, but long on nuance. Clinton committed to tracking and freezing the Somali bandits' finances—something that could prove difficult—while also working with shipping conglomerates and insurance companies to address "gaps in their self-defense measures." With a heavy military presence in the region all but off the table, given officials' remarks on the subject, what could that mean?

John Patch, a retired Navy commander who now teaches at the U.S. Army War College, has one possible answer. In the past few months, Patch has repeatedly said the global security threat posed by pirates is "overstated." But if Washington now feels compelled to respond to the surge in piracy in the Gulf of Aden, Patch argues, the best approach would be to treat the problem as a law-enforcement issue, not a military mission. NEWSWEEK's Katie Paul spoke to him about why, if the U.S. is to play any armed role in responding to the Somali pirates, the Coast Guard might be its best bet.

While the Coast Guard is likely the best maritime military force worldwide to address Somali piracy, bar none, it is plainly too small to take on another mission.  Law Enforcement Detachment (LEDETs) embarked on Navy or other allied ships could provide a crucial, internationally viable response to the pirate threat.  Endgame remains a vexing issue and absent political will for prosecution/incarceration in other countries, the Gulf of Aden's cat and mouse game will continue.

Op-Ed on Somali Piracy and International Law

The Pacific Business News published an Op-Ed I drafted on International Law and Somali Piracy. (PBN has published here).

 

My text is repeated below:

 

Until recently, we viewed “piracy” to be teenagers downloading internet songs or copying a DVD.  Now, armed hijackings, crews and cargos held hostage in the Gulf of Aden bring real piracy to the forefront.  Modern pirates sail “go-fasts” and instead of cutlasses or flintlocks, they are armed with AK-47s and rocket-propelled grenades.

For 18 months, Somali pirates with easy access to a major international shipping lane have attacked merchant ships, including, in April, a U.S.ship carrying humanitarian cargo. The captain was taken hostage and was rescued by the U.S. Navy. Somali pirates have grabbed the world stage when coastal nations’ stability is threatened by global financial crises.  Other criminal organizations, to include terrorist ones, are assuredly watching these events and considering piracy as a revenue source.  To date, world naval powers, especially the United States, are understandably reluctant to exercise criminal jurisdiction over bandits, yet it is overdue.

Realistic responses to piracy involve multi-national military and law enforcement intervention. The United Nations International Maritime Organization currently discourages carriage of firearms on merchant vessels and potential gunfights may trouble insurance companies.  Professional security and non-lethal technology could prove too expensive for smaller vessels.  Avoiding the Gulf of Aden altogether will substantially drive up shipping costs.

The U.S. Congress has enacted domestic and international piracy laws through powers granted by the Constitution “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Under the Law of the Sea, piracy is a universal crime and any nation can prosecute pirates.  The U.S. recognizes the Law of the Sea treaty provisions on sea and air piracy as “customary international law,” but it has never ratified the treaty.

The case of Shi Lei, which touches Hawaii, is an example of how the U.S. legal system, through an international agreement, resolved an international crime. U.S. authorities apprehended Shi Lei, a Chinese cook, killed the captain and first mate, then took control of the Seychelles-flagged, Taiwanese-owned fishing vessel Full Means No. 2. 

Shi Lei’s crime was not traditional piracy.  However, the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Treaty extends coastal countries’ jurisdiction to prosecute certain crimes on the high seas.  The U.S. is a signatory with the necessary domestic law required by the treaty. So, Shi Lei was prosecuted in Honolulu.

The U.S. provided Shi Lei with a defense attorney.  He was prosecuted, convicted and, exercised his right to appeal, even to the U.S. Supreme Court. In this case, the U.S.established that its legal system can assist in peaceable, fair resolution of matters arising outside any nation’s territory.

The United States should use its international stature to develop agreements that both protect national interests and ensure a legal framework to address emerging transnational issues like piracy, environmental protection and Arctic warming.  The Senate should ratify the Law of the Sea treaty.  And, the legal infrastructure of U.S. coastal states, like Hawaii, should be ready to resolve inevitable civil and criminal maritime issues. 

Maersk Alabama Mariner Sues for Pirate Attack

A Maersk Alabama mariner, Richard Hicks, has brought suit against Maersk for negligence, maintenance and cure and other damages allegedly suffered during the piratical attacks off Somalia recently. 

The suit was brought in Houston, Texas.  Thanks to gCaptain for the tip and Terry Bryant for posting the complaint online.

Complaint available here.

Somali Pirate - Criminal Complaint Outlines Charges

The criminal complaint outlining the charges against Somali pirate, Abduwali Abdukhadir Muse is available here.  Based on the charges, he faces life imprisonment.

The four charges he faces are:

1.  Piracy, 18 U.S.C. 1651, related to the seizure and robbery of the Maersk Alabama.

2.  Violence against maritime navigation, 18 U.S.C. 2280(e), which criminalizes acts which, among other things, destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship.

3. Use and carriage of a firearm in the commission of a crime of violence (specifically, violence against maritime navigation), 18 U.S.C. 924.  This carries a mandatory minimum sentence of 10 years if the firearm is discharged.

4. Hostage taking, 18 U.S.C. 1203.

5.  Use of a firearm during the hostage taking in violation of 18 U.S.C. 924.

Because piratical acts in U.S. waters are unheard of, this case will be the first piracy prosecution in a long time.  I would be cautious about saying that it is the first piracy case in 100 years because the crime could have been charged as murder or robbery or the crime may have not been reported on or decided in a published opinion. 

The exercise of criminal jurisdiction over extraterritorial crimes is not unprecedented.  As the complaint notes, the United States successfully asserted jurisdiction over Ramzi Yousef, Osama Bin Laden (tried in absentia) and Shi Lei.  The Ninth Circuit decision in Shi Lei is the only reported case interpreting the Violence Against Maritime Navigation statute.  [Disclosure: while serving as a Coast Guard JAG, I was a Special Assistant U.S. Attorney and worked on the Shi Lei case]. 

Per the Ninth Circuit in Shi Lei:

Article I, Section 8, Clause 10 of the United States Constitution (the “Offense Clause”) empowers Congress to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Because the high seas, by definition, lie outside United States territory, see United States v. Davis, 905 F.2d 245, 248 (9th Cir. 1990), the Offense Clause grants Congress the authority to apply federal law beyond the borders of the United States, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).

Section 2280 is an exercise of Congress’s constitutional authority to define and punish “Felonies on the high Seas” because it proscribes felony offenses and expressly applies to international waters. See 18 U.S.C. § 2280(e). In addition, § 2280(a)(1)(A) and (B), the provisions under which Shi was charged, proscribe offenses which meet the definition of piracy. “Piracy” traditionally has been defined as “robbery, or forcible depredations upon the sea.” United States v. Smith, 18 U.S. 153, 161 (1820). “Depredation” is “the act of plundering, robbing, or pillaging.” Black’s Law Dictionary 397 (5th ed. 1979).

All three acts require the use of force.3 Section 2280(a)(1)(A) prohibits “seiz[ing] or exercis[ing] control over a ship by force or threat thereof,” and § 2280(a)(1)(B) prohibits “act[s] of violence against a person on board a ship” that are “likely to endanger the safe navigation of that ship.” Because such offenses involve interference with property on the open sea through the use of force, they are within Congress’s power to define and to punish crimes of piracy. See Smith, 18 U.S. at 158-59 (treating “Piracies,” “Felonies on the high Seas,” and “Offenses against the Laws of Nations” as three separate offenses).

My earlier posts on Somali piracy are: here, here, here, here, here, here.  This list is getting long, I'll put together a resource page later.

History of Piracy - Speech by Professor Andrew Jameson

I was fortunate to attend a lecture by Professor Andrew Jameson at Honolulu's Pacific Club on April 22.

Professor Jameson is a renowned expert on Near Asia. With a Harvard PhD, he was a longtime professor at the University of California-Berkeley and has consulted throughout the world.

He traced the history of piracy from its first written mention in Homer's Iliad through the golden era in the late 1600's. 

He traced today's notion of the swashbuckling pirate from Robert Louis Stevenson's Treasure Island and expressed some criticism of the romanticized notion of pirates.  In truth, pirates are, and have always been, criminals bent on unlawfully obtaining prize (whether treasure or the victim ship) by force, often involving murder, rape and mayhem. 

He highlighted the hotspots of piracy today:  Somalia, the Strait of Malacca and the Phillipines.

Jameson is rather unique for pirate historians because he actually was on a ship that narrowly escaped Somali pirates in 2005.  He was an instructor on the ship Seaborne Spirit.  This cruise ship was assaulted with automatic rifles and rocket propelled grenades but was able to outrun the pirates.

U.S. = +1 Captain, Somalia = -3 Pirates

More resources on the Maersk Alabama piratical attack and hostage-taking incident. 

• Admiral Thad Allen, Commandant of the U.S. Coast Guard was interviewed on ABC's This Week (transcript here).  At issue is his call for an international framework to address Somali piracy.  This appears to call for a need to address the "endgame" or what-do-we-do-with-the pirates we capture.  While this is probably more of a political issue than a legal one, the shipping nations of the world must take steps to protect their fleets.  In my mind, a practical endgame is that the top 20 shipping nations agree that for any pirate apprehended by any naval force, the shipping nation agrees to prosecute the offenders.  When conceiving criminal prosecutions in domestic courts, however, there are certainly practical concerns (i.e. envision Indian Navy personnel testifying in U.S. courtrooms about how Somali pirates were apprehended, 5th Amendment warnings, etc).  Kenya appears to be emerging as an option for prosecution with the benefit of proximity to the pirate area.  The effectiveness of the Kenya option is certainly an issue to watch.

• Survey of the blogs, news outlets:  Marinelog article here, gCaptain live press conference here, New ABCNews article.

• Reflecting on our nation's early brush with piracy in Africa, the NY Times has an interesting piece about the Barbary pirates, here. 

My initial thoughts on the Maersk Alabama incident here. 

Somali Pirates and American Shipping Interests - Messing with the Wrong Target?

The pirate attack on the Maersk Alabama is unfolding in dramatic proportions. 

My thoughts, in no particular order: 

Mariners are wising up to the reality of Somali piracy.  Americans are a bit more sensitive about letting violence happen to them.  Perhaps a lesson from 9/11 and Flight 93?

America is extraordinarily restrained when it comes to exercising its powers of violence.  I disagree with the tone of the NY Times article which somehow equates these events as showing a "limit" on U.S. power.  NY Times here.

You, and not the Navy or any government, are your best weapon, note the escape attempt here.

Anti-piracy patrols need a small boat, beefy tactical response.  If the Navy ships do not already have them, Coast Guard LEDETS or shipboard Marine Detachments could be used by patrolling vessels. Incidents requiring a more violent response would require Coast Guard MSRT or SEAL, resources which can take time to mobilize. Any forcible takedown will be very difficult, though, given the target "vessel"  (lifeboat here).

The U.S. Coast Guard is getting organized to handle these missions:

Blogs and other social media are instantaneous news sources, seegCaptain's live blog here. 

In the short term, negotiation provides the best option for a peaceful ending, but with the caveat that ransom payments do not deter future attacks.

Finally, the United States needs to ratify the Law of the Sea.  Based on the U.N. resolutions, customary international law and robust domestic authority, the United States has every bit of legal authority to combat these pirates, but as the world creeps towards global financial crisis, criminal elements in coastal areas can take advantage of the vulnerabilities of merchant vessels for financial gain.  Ratification of the Law of the Sea will assist in the U.S. efforts to address boundary disputes and these events of violence in a cogent, rational framework.

Somali Pirates - Laws of the United States

In dealing with Somali pirates, from a U.S. law perspective, the pirates can be prosecuted in American courts.

The SUA Treaty is a start. In the wake of the Achille Lauro murders, many countries signed and ratified the Suppression of Unlawful Acts (or SUA) Treaty (a.k.a. Rome Treaty). The Commandant of the Coast Guard’s blog has some good insight into the geo-political issues, vis a vis, the Rome Treaty (a.k.a. SUA) The SUA treaty required signatories to enact domestic legislation to fulfill its aims.

The United States adopted such legislation at 18 U.S.C. 2280, which provides:

Sec. 2280. Violence against maritime navigation

(a) Offenses. -

    (1) In general. - A person who unlawfully and intentionally -

        (A) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation;

         (B) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;

        (C) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship;

        (D) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship;

        (E) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of a ship;

        (F) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of a ship;

        (G) injures or kills any person in connection with the commission or the attempted commission of any of the offenses set forth in subparagraphs (A) through (F); or

        (H) attempts or conspires to do any act prohibited under subparagraphs (A) through (G), shall be fined under this title, imprisoned not more than 20 years, or both; and if the death of any person results from conduct prohibited by this paragraph, shall be punished by death or imprisoned for any term of years or for life.

    (2) Threat to navigation. - A person who threatens to do any act prohibited under paragraph (1)(B), (C) or (E), with apparent determination and will to carry the threat into execution, if the threatened act is likely to endanger the safe navigation of the ship in question, shall be fined under this title, imprisoned not more than 5 years, or both.

    (b) Jurisdiction. - There is jurisdiction over the activity prohibited in subsection (a) - (1) in the case of a covered ship, if -

        (A) such activity is committed -

            (i) against or on board a ship flying the flag of the United States at the time the prohibited activity is committed;

            (ii) in the United States; or

            (iii) by a national of the United States or by a stateless person whose habitual residence is in the United States;

        (B) during the commission of such activity, a national of the United States is seized, threatened, injured or killed; or

        (C) the offender is later found in the United States after such activity is committed;

    (2) in the case of a ship navigating or scheduled to navigate solely within the territorial sea or internal waters of a country other than the United States, if the offender is later found in the United States after such activity is committed; and

    (3) in the case of any vessel, if such activity is committed in an attempt to compel the United States to do or abstain from doing any act.

(c) Bar To Prosecution. - It is a bar to Federal prosecution under subsection (a) for conduct that occurred within the United States that the conduct involved was during or in relation to a labor dispute, and such conduct is prohibited as a felony under the law of the State in which it was committed. For purposes of this section, the term "labor dispute" has the meaning set forth in section 2(c) (!1) of the Norris-LaGuardia Act, as amended (29 U.S.C. 113(c)).

(d) Delivery of Suspected Offender. - The master of a covered ship flying the flag of the United States who has reasonable grounds to believe that there is on board that ship any person who has committed an offense under Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation may deliver such person to the authorities of a State Party to that Convention. Before delivering such person to the authorities of another country, the master shall notify in an appropriate manner the Attorney General of the United States of the alleged offense and await instructions from the Attorney General as to what action to take. When delivering the person to a country which is a State Party to the Convention, the master shall, whenever practicable, and if possible before entering the territorial sea of such country, notify the authorities of such country of the master's intention to deliver such person and the reasons therefor. If the master delivers such person, the master shall furnish to the authorities of such country the evidence in the master's possession that pertains to the alleged offense.

(e) Definitions. - In this section -

    "covered ship" means a ship that is navigating or is scheduled to navigate into, through or from waters beyond the outer limit of the territorial sea of a single country or a lateral limit of that country's territorial sea with an adjacent country.

    "national of the United States" has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).

    "territorial sea of the United States" means all waters extending seaward to 12 nautical miles from the baselines of the United States determined in accordance with international law.

    "ship" means a vessel of any type whatsoever not permanentlyattached to the sea-bed, including dynamically supported craft, submersibles or any other floating craft, but does not include a warship, a ship owned or operated by a government when being used as a naval auxiliary or for customs or police purposes, or a ship which has been withdrawn from navigation or laid up.

    "United States", when used in a geographical sense, includes the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands and all territories and possessions of the United States.

The U.S. criminal code further provides: 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 shall be imprisoned for life. 18 U.S.C. 1651.