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Modern Day Piracy Current Events, Legal Issues, and Political Responses RADM William Baumgartner Judge Advocate General September 21, 2009 1.

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Presentation on theme: "Modern Day Piracy Current Events, Legal Issues, and Political Responses RADM William Baumgartner Judge Advocate General September 21, 2009 1."— Presentation transcript:

1 Modern Day Piracy Current Events, Legal Issues, and Political Responses RADM William Baumgartner Judge Advocate General September 21,

2 Overview of Modern Day Piracy Straits of Malacca and Singapore Gulf of Guinea Off the Coast of Somalia (HOA Region) 2

3 2008 Worldwide Pirate Attacks 49 vessels hijacked 46 other vessels fired upon 889 crewmembers taken hostage 32 crewmembers injured 11 crewmembers killed 21 crewmembers missing – presumed dead “Where there is a sea, there are pirates.” - Greek proverb 3

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15 SOM – HOA Piracy Comparison Straits of Malacca Small geographic area Nearly all within territorial waters Functioning governments (patrol forces, surveillance, judicial) “Hit and run” property crimes, kidnapping, or complete takeovers Horn of Africa Large geographic area Mostly international waters No functioning government in Somalia; others vary in capability “Open and notorious” hostage taking (sanctuary) 15

16 Seychelles 16

17 M/V Faina Hijacked 28 September 2008, with its cargo of 33 T-72 tanks and other weaponry. 17

18 M/V Faina Released 5 February 2009 after paying $3.2 million. 18

19 M/T Sirius Star –Saudi super- tanker loaded with $100 million worth of crude oil –Hijacked 15 November

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22 Released 11 January $3 million ransom paid 22

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33 Piracy is big business in Somalia –Ships and crews are hijacked for ransoms –Average detention: two months –Average ransom: $1 - $2 million –$80 million ransom paid to Somali pirates since 2008 (est.) 33

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36 Principles of jurisdiction Piracy as a universal crime Domestic legislation 1988 Convention on the Suppression of Unlawful Acts against Maritime Navigation (SUA) United Nations Security Council Resolutions 36

37 PRINCIPLES OF JURISDICTION TERRITORIAL NATIONALITY PROTECTIVE UNIVERSAL PASSIVE PERSONALITY 37

38 UNCLOS Article 101 Piracy is defined as any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship … and directed (i) on the high seas against another ship… or against persons or property on board; (ii) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State. 38

39 UN Convention on the Law of the Sea Article 100 All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State. 39

40 RIGHT OF VISIT - ART 110, LOSC Warship May Board Foreign Vessel on High Seas / EEZ if Reasonable to Suspect: – PIRACY – SLAVE TRADE – UNAUTHORIZED BROADCASTING – WITHOUT NATIONALITY – the ship is in reality THE SAME NATIONALITY AS WARSHIP 40

41 FOREIGN FLAG ON HIGH SEAS - ART 92, LOSC Flag State Consent Required Exceptions: – Crimes of Universal Jurisdiction – Right of Visit – Hot Pursuit – Constructive Presence (Motherships) – Continental Shelf Resources 41

42 Article 105 UNCLOS provides that – Every State may: – Seize a pirate ship or aircraft or a ship or aircraft taken by pirates; and –Arrest the persons and seize the property on board. The courts of the State which carried out the seizure may: –Decide upon the penalties to be imposed; and –May determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Article 107 UNCLOS provides that any warship or military aircraft, or other clearly marked government vessel may seize pirates. 42

43 UNIVERSAL PRINCIPLE Crimes of Universal Jurisdiction – Piracy – Slave Trade – War Crimes – Genocide – Crimes Against Humanity – Aircraft Piracy 43

44 NATIONAL LEGISLATION 44

45 IMPORTANCE OF NATIONAL LEGISLATION International Law - What May Be Regulated Domestic Law - What Is Regulated 45

46 Ensure courts are competent to hear piracy offenses Process to handle claims for compensation Assisting Other Nations Facilitating Transfer Logistics Incident Reporting Requirements 46

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48 THE 1988 CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AT SEA (SUA) 154 of the world's States are parties Establishes a framework whereby a coastal State Party is obliged to accept custody of suspected SUA offenders The coastal State Party is required to investigate and then prosecute or extradite SUA offenses are violence against maritime navigation (may overlap with piracy offenses) 48

49 UNITED NATIONS SECURITY COUNCIL RESOLUTIONS Most recent is 1851(2008) IMO Assembly Resolution (A.1002(25)) was part of foundation for the series of 2008 UNSCR’s 1851(2008) authorizes into Somali territorial sea territory and to fight counter piracy (with consent of TFG) Will be revised/renewed in the coming months 49

50 Military/Operational Political/Diplomatic United States Government Counter Piracy Plan 50

51 Australia Belgium Canada China Denmark France Greece Germany India Iran Italy Japan Malaysia Nether- lands Norway South Korea Russia Saudi Arabia Singapore Spain Sweden SwitzerLand Turkey United Kingdom United States 51

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53 The Coast Guard Role Authorities/Missions Armed Force at all times Primary U.S. maritime law enforcement agency with worldwide authority Regulate maritime industry for safety & security Primary U.S. voice at International Maritime Organization (IMO) U.S. Competent Authority for primary international maritime security instruments 53

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56 Prevention Response Prosecution 56

57 Prevention Establish Contact Group MSPA Vessel security measures Strategic Communications 57

58 Response Counter-Piracy Coordination Center Seize/Destroy Pirate Vessels Interdiction Capable Presence Shiprider/Regional Agreements Dismantle Pirate Bases Ashore Disrupt Pirate Financing 58

59 Prosecution Custody and Prosecution Agreements and Arrangements Encourage SUA Jurisdiction Encourage Other Conventions Use (TOCC, Hostage Taking, Terrorist Financing, etc.) Enhance Regional State Prosecution Capabilities 59

60 National prosecutions by victim States Kenya (US, UK, EU) Seychelles (UK) Yemen Puntland 60

61 Sole surviving suspected pirate (Muse) Charged in Southern District of New York Charged under range of statutes including: –SUA (18 USC 2280) –Piracy (18 USC 1651) –Kidnapping (18 USC 1201) –Hostage Convention (18 USC 1203) 61

62 Kenya 62

63 Prosecution – M/T POLARIS 63

64 Prosecution – M/T POLARIS

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66 Armed security has been effective Legal concerns include: –Direct and vicarious criminal liability –Civil liability –Potential difficulties in obtaining insurance –Compliance with arms laws 66

67 Questions??? 67

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