PIRACY, UNDER INTERNATIONAL LAW |26 September 2009

A pirate, in international law, is considered as a ‘hostis humani generis’ (an enemy of every state) and thus an outlaw.

He, therefore, loses his national character and the protection he would otherwise be entitled to from his own state. And the vessel or aircraft he has used to commit the act of piracy loses the right to sail under a certain state’s flag, which it may have earlier possessed.

Whether the pirate vessel also loses its nationality is determined by the law of the state from which such nationality was originally derived.
 
A pirate can be prosecuted by any nation into whose jurisdiction he may come. The Geneva Convention on the High Seas 1958 and the Convention on the Law of the Sea (UNCLOS) 1982 make it obligatory on states to cooperate to the fullest possible extent in repressing piracy on the high seas or in any other places outside the jurisdiction of any state.

According to article 14 of the Geneva Convention, any state having an opportunity of taking measures against piracy, and neglecting to do so, would be failing in a duty laid upon it by international law.

The two conventions do not specify the nature of the cooperation expected of a state or what is meant by the phrase “having an opportunity of taking measures against piracy and neglecting to do so”. 

The extent of the cooperation for the repression of piracy and the measures a state could take against piracy before being said to have neglected to comply with its international obligations would, however, be dependent on the capacity of each state.

This is a matter the state alone can decide, unless it is clear to the international community that having the capacity, a state is failing in its international obligations. Financial and human resources, infrastructure, economic, social and political considerations may all have a bearing on the capacity of a state to cooperate.

Sometimes the need to cooperate may arise from the specific needs of the state to deal with piracy, for example where its non-repression may have an impact on its tourism, as in the Seychelles context.

Seizure of pirates’ vessels

Any nation can prosecute a pirate who is within its jurisdiction. This gives any state the right to seize the pirate vessel, its property and arrest the persons therein. The right of seizure may be exercised on the high seas, in any other place outside the jurisdiction of any state or within the territorial waters of a state in respect of a piratical act committed on the high seas or in any other place outside the jurisdiction of any state.

One state cannot exercise the right of seizure at a place under the jurisdiction of another state. If a pirate is chased on the high seas and flees into the territorial maritime belt of another state, the pursuers may – after giving notice to that state – follow, attack and arrest the pirate there, but they must give him up to the authorities of the littoral state.

Generally it is for the state that carried out the seizure to determine the penalties and the action to be taken with regard to the vessel or other property subject to the rights of third parties acting in good faith. The question of the property in the seized pirate vessel, and the goods thereon, has been the subject of much controversy. During the 17th century, the practice of several states conceded such vessels and goods to the captor as a premium. The Geneva Convention and UNCLOS leave a large discretion to the municipal courts of the seizing state whilesafeguarding the rights of third parties, which include the rightful owners in good faith.

Warships can capture

The seizure of pirates can only be carried out by warships or military aircraft or other ships or aircraft on government service authorised to that effect. In the latter situation, UNCLOS adds the requirement that they should be clearly marked and identifiable as being on government service.

There is nothing to prevent a pirate ship being captured by its intended victim acting in self-defence and subsequently handing over the pirates over to a governmental authority. Where a seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the seizing state is liable to the state of nationality of the ship or aircraft for any loss or damage caused by the seizure.

Jurisdiction of states to try offences of piracy

This is on the basis of the Principle of Universal Jurisdiction, which any state may assert, in relation to crimes against humanity regardless of where the crime occurred. Piracy in international law is considered a crime against humanity.

Under the Principle of Nationality, a state can assert jurisdiction over behaviour involving its citizens who have been involved in any act of piracy, regardless of where the crime occurred.

The Effects Principle gives a state the right to assert jurisdiction over behaviour that affects their national interests, regardless of where it may have originated.

The Principle of Extraterritorial Jurisdiction gives a state the right to assert jurisdiction against crimes committed partly in its territory and partly outside its territory, where the result of the offence occurs in its territory or on board of one of its aircraft or ships.

Offence under our law

In Seychelles, piracy has been made into an offence under section 65 of the Penal Code. Section 65 states: “Any person who is guilty of piracy or any crime connected with or relating or akin to piracy shall be liable to be tried and punished according to the law of England for the time being in force.”

The words “time being in force” needs examination. Does it mean the law of England at the time the Penal Code came into force, namely February 1, 1955 or the law of England at the time the act of piracy is committed?
To interpret in accordance with the latter meaning will not militate against the principle of retroactivity since article 19(4) of our Constitution provides that “except for the offence of genocide or an offence against humanity, a person shall not be held to be guilty of an offence on account of any act or omission that did not, at the time it took place, constitute an offence, and a penalty shall not be imposed for any offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.”

According to Stroud’s Judicial Dictionary – Volume 5, page 2,773 – the phrase “for the time being” may, according to its context, mean the time present or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may – and probably will – vary from time to time.

The extent of jurisdiction of the courts of Seychelles for the purpose of the Penal Code in accordance with chapter III of the code extends to every place within Seychelles. When an act which, if wholly done within the jurisdiction of the court, would be an offence against the Penal Code is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this code in the same manner as if such an act had been done wholly within the jurisdiction.

It is clear that the offence of piracy as found in the Penal Code will not include an act of piracy which is wholly done outside the territorial waters and historic waters of Seychelles.
 
Section 65, which creates the offence of piracy, cannot be said to have altered chapter III’s provisions pertaining to the extent of jurisdiction of the courts of Seychelles, which is limited to being essentially a Territorial Jurisdiction. The principles of Universal, Nationality, of Effects and Extraterritorial Jurisdiction have not been recognised by the Penal Code. Seychelles may, however, invoke any one of these jurisdictions to deal with piracy depending on the circumstances of each case, in view of its international obligations to take measures against piracy. The time has come for the legislature to enact an anti-piracy law.

The definition of piracy jure gentium – under international law

Piracy jure gentium should be distinguished from piracy according to the municipal laws of different states. A state may punish its own subjects for a few acts or a wider range of acts of violence than those which international law defines as piracy. Piracy on the territorial sea has as little to do with international law as other robberies within the territory of a state. However, since a state cannot enforce its municipal laws on the high seas against other than its own subjects, it cannot treat foreigners on the high seas as pirates, unless they are pirates in accordance with international law.

Article 101 of the United Nations Convention on the Law of the Sea 1982, which is identical to article 15 of the Geneva Convention on the High Seas 1958, defines piracy thus:

“Piracy consists in any of the following acts:

(a) Any illegal act of violence, detention or any act of depredation committed for private ends by the crew or the passengers of a private ship or private aircraft directed;

(i) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any state.

(b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.

(c) Any act of inciting or of intentionally facilitating an act described in sub-paragraph (a) or (b).”

Some of the phrases in this definition need clarification.

‘Any illegal act of violence’:

The motive and the purpose of such acts of violence do not alter their piratical character, since the intent to plunder (animo furendi) is not required. If, for instance, a private neutral vessel, during war, without being commissioned by a government, were to attack and sink vessels of a belligerent out of hatred and without plundering at all, she would yet be considered as a pirate.

In the normal case of piracy, the pirate is after booty, his interest being the cargo of the attacked vessel or aircraft, and often the vessel or aircraft is released after the cargo has been appropriated. Whether he only appropriates or whether he takes over the vessel or sinks her and kills the crew, he is treated as a pirate. The cargo need not be the object of his violence.

It is piracy if he stops a vessel or aircraft and abducts a passenger with the intention of asking for a ransom or if he stops a vessel merely to kill a person on board, although the vessel, crew and cargo are thereafter freed.
 
Thus piracy may be prompted by hatred or revenge as well as for gain. Any illegal act of violence, detention or any act of deprivation, if committed for private ends, would amount to piracy.

Piracy may be committed by any unauthorised act of violence, whether it is direct application of force or by threats of intimidation. A ship which forces another ship to deliver up its cargo or a person on board, by threats to sink it, commits piracy. The act of violence need not be consummated, a mere attempt – such as attacking or even chasing a vessel for the purpose of attack – by itself constitutes piracy.

The question has arisen whether persons cruising in armed vessels with the intention of committing piracies are liable to be treated as pirates before they have committed any act of violence. In the case of the Ambrose Light, the courts held the vessel to be a pirate, although no attempt to commit a piratical act was made by her.

The Ambrose Light was found carrying 60 armed soldiers, one cannon and a considerable quantity of ammunition. It bore a commission from Colombian insurgents and was designed to help in the blockade of the port of Cartegena by rebels. It may in some cases be difficult to distinguish between an intention to commit piracy and intention to commit terrorist attacks, and the decision to treat the vessel as a pirate would be dependent on the other circumstantial evidence available.

‘Committed for private ends’:
 
There is some difficulty in applying the law of piracy to acts of terrorism on ships on the high seas as acts of terrorism are not treated as committed for private ends. Such acts are dealt with under the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988, and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf 1988.

The Rome Convention was partly the result of the seizure in the Mediterranean Sea of the Italian registered cruise ship Achille Lauro in 1985. The terrorists threatened to kill the passengers (there were 454 on board) unless 50 Palestinians held in jail in Israel were released.

Eventually the terrorists surrendered, but one US citizen of Jewish origin was killed.

Parties to these conventions are obliged to prosecute or extradite offenders and to cooperate in preventing such offences. The Pan-American Convention of 1928 provides in effect that vessels which have risen in arms against their government must not be treated as pirates even if they have committed acts of depredations upon vessels of the state concerned.
 
In 1929 the USA refused to treat as piratical the Falke, a vessel registered in Germany which was boarded by Venezuelan rebels and taken to Venezuela with a cargo of munitions on board. However, the Belgian Court of Cassation in 1986 held that the members of an environmental group called Greenpeace who boarded, occupied and damaged two Dutch vessels on the high seas were guilty of piracy, because the acts were committed for ‘private ends’ being in furtherance of a personal point of view on a particular  problem.

The general view is that an act committed for political motives cannot be piracy. It is because of this that some argue that terrorism cannot be piracy. There is, however, another school of thought which believes that any act of violence on the high seas which is not attributable to a state (a public act) is piracy (a private act). This is a matter open to debate. 

‘By the crew or the passengers’:

Where persons on board are united in purpose, the ship or aircraft is a pirate if those persons who are in “dominant control” intend to use it for piratical acts and would remain a pirate so long as it remains under the dominant control of such persons.

‘Of a private ship or private aircraft’:

Acts of piracy can be committed not only by ships on the high seas, but also by aircraft. Acts committed in the air by one aircraft against another aircraft are piracy. The UNCLOS provisions clearly assimilate ships and aircraft both as subjects and objects of piratical acts.

Piracy can be committed only by private vessels

A warship or other public ship or aircraft under the orders of a recognised government or belligerent cannot be treated as a pirate vessel, and if it commits unjustified acts of violence redress must be sought from the flag state.

However, if such a vessel were to revolt and cruise the sea for its own purposes, it would cease to be a public ship, and acts of violence committed by it would be piracy. If the mutiny is suppressed and lawful authority is restored, it would continue to be treated as a state vessel.
 
Vessels of unrecognised insurgents interfering with ships of third states may be treated as pirate ships. In 1877 when a revolutionary outbreak occurred at Callao in Peru, and the Huscar – which had been seized by the insurgents – stopped British steamers and took a supply of coal without payment, it was considered a pirate and was attacked by the British navy.

On the other hand in 1873, when an insurrection broke out in Spain and Spanish warships stationed at Cartagena fell into the hands of the insurgents and the Spanish government proclaimed these vessels as pirates, Great Britain, France and Germany instructed the commanders of their warships in the Mediterranean not to interfere as long as these insurgent vessels abstained from acts of violence against the lives and property of their subjects.

Vessels acting under the orders of a recognised government cannot be guilty of piracy. In September 1941, President Roosevelt issued orders to American naval forces to fire at sight upon German and Italian submarines and surface vessels in defence against piratical attacks in violation of international law. This view that piracy comprises generally ruthless acts of lawlessness on the high seas by whomsoever committed did not find recognition in the Geneva Convention and UNCLOS. Consequently there can now be little doubt that piracy jure gentium remains an offence of a private vessel or aircraft committed for private ends.

‘And directed on the high seas or in a place outside the jurisdiction of any state’:

Article 58.2 of UNCLOS confirms that piracy can take place in an exclusive economic zone. This is because the EEZ, whether regarded as part of the high seas or as being an area sui generis, is certainly not territorial.

Islands which are terra nullius, or on the shores of any territory not subject to a territorial jurisdiction, like Antarctica, would be considered as outside the jurisdiction of any state. One may argue that the airspace above the high seas is also outside the jurisdiction of any state.

‘Against another ship or aircraft, or against persons or property on board such ship or aircraft or against a ship, aircraft, persons or property in a place outside the jurisdiction of any state’:

The piratical act should always be directed, if on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft or if in a place outside the jurisdiction of any state against a ship, aircraft, persons or property therein. Thus to attack a person in Antarctica, or a building there, may amount to piracy.

A mutinous crew and passengers, that is a crew, or passengers, who revolt on the open sea and convert the vessel and her goods to their own use, are not pirates. However, if after the vessel or aircraft has been converted to the use of the mutinous passengers or crew it cruises against other shipping or aircraft, it would be piracy.

By Justice Anthony Francis Tissa Fernando