MMS PLUS NG – Maritime, Aviation, Business, Oil and Gas News Online Newspaper with coverage in Maritime, Oil and Gas, Aviation, Power and Energy as well as Financial News
Kamal-Deen Ali, PhD
Executive Director
Centre for Maritime Law & Security Africa
Dr. Kamal Deen Ali is the Executive Director, Centre for Maritime Law and Security Africa, Accra, Ghana. He delivered the paper titled: Piracy and Armed Robbery at Sea: “Judicial Interpretation and Economic Implication”, at the recent International Maritime Seminar for Judges. It was one of the highly commended papers at the gathering. Enjoy it.
INTRODUCTION
Piracy and armed attacks against shipping represent an enduring threat to maritime trade.
The “golden age” of piracy took place in the latter part of the seventeenth century into the
eighteenth century – a period celebrated and embedded in popular imagination through
novels and films such as Treasure Island and the Pirates of the Caribbean.1 Indeed, some
ancient kingdoms and their rulers were beneficiaries and perpetrators of piratical activities
during this period, with pirates generally being regarded as noble people.2
However, piracy was subsequently considered a heinous crime and a threat to the good
order of the oceans, and pirates were thus outlawed in many kingdoms as hostis humani
generis (enemy of mankind).3 This crystallised into a rule of customary international law,
making piracy a universal crime, thus allowing every state to exercise jurisdiction over
pirates.4
Given the fact that piracy has existed for a very long time and has indeed been a subject of
intense international attention, one is tempted to think that the legal framework and judicial interpretation regarding piracy would be well defined or fairly settled. That is far from the case. As in many areas of law (both international and domestic), the legal evolution of the law of piracy has been marked by difficult questions of legal definition, interpretation and even more problematic issues regarding practical application of the law to facts. Perhaps, what is true to say is that these contending positions, which occupied a prominent place in legal jurisprudence and juristic reasoning, including on the platform of the International Law Commission (ILC), subsided in much of the 19th Century. However, as piracy rebounded in substantial numbers in the 20thCentury, the legal debacle is back with us. Particularly so, as a crime of universal jurisdiction, and sharing that class with only a few other crimes – genocide, war crimes and crimes against humanity – legal interest in piracy can only be expected to be high. Also the continuous growth of global shipping, with contingent maritime, economic and national concerns, imply that interest in the legal framework of piracy and armed robbery will remain high on global agenda.
This paper examines the complex issues of legal interpretation and judicial application of the law of piracy and armed robbery at sea. The first part interrogates the legal definition of piracy as provided for in the United Nations Convention on the Law of the Sea (LOSC) 5 – a definition that looks simple at first look but raises serious questions of law when deeply
examined. The second part highlights practical issues of law, judicial interpretation and
enforcement that deserve policy attention at both global level, while the final part takes a
closer look at legal complexities in the Gulf of Guinea.
INTERROGATING THE MODERN LAW ON PIRACY
Contemporary definition of piracy is codified in the United Nations Convention on the Law
of the Sea (LOSC), 1982. The LOSC has achieved broad international recognition with 168
State Parties.6 Aspects of the Convention are also seen as reflecting or codifying customary
international law. Under the Convention, State Parties are committed to cooperate in the
suppression of piracy. Articles 100-107 contain the provisions on the law of piracy. Article
101 defines “piracy” as:
(a) 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 or a private aircraft, and
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 inciting or of intentionally facilitating an act described in sub-paragraph
(a) or (b).
The above definition may appear simple at first glance, upon close examination, however, it
becomes clear that the wording contains complex issues that require detailed legal and
judicial discourse. Without pretending to be exhaustive, some of the key issues are discussed
below.
Locus Delicti – Must Be Committed on the High Seas
One of the peculiarities of maritime crime is that the place of the commission of the crime,
locus delicti, has implications, first, for the definition of the crime, and second, the question
of jurisdiction.
Normally, the place of commission of a crime does not determine the categorization of the
crime. Thus, assault is assault whether it occurs in Ghana or Nigeria; so is murder. Whereas
states may have administrative arrangements that demand that a court or judicial body close
to a crime should assume jurisdiction, it does not mean other courts within the state cannot
legally assume jurisdiction if necessary. When it comes to piracy, however, the locus delicti,
is important.
Fundamental to the definition and exercise of jurisdiction over piracy is the place of the
offence. For an act to be classified as piracy, the activity must take place on the “high seas” or
a “place outside the jurisdiction of any State.”7 In this context, “high seas” includes the
contiguous zone and the Exclusive Economic Zone (EEZ).8 The reference or requirement of
“high seas” implies that, the same acts that qualify a crime as piracy will otherwise make the
crime armed robbery at sea if the acts occurred within 12nm – and it will also mean that only the coastal state will have exclusive jurisdiction over the crime. Of course, this is a customary law codification, and the distinction was probably not so problematic when the territorial sea was at most, only a narrow belt of 3nm. But as the territorial sea has expanded to 12nm, retaining this customary law position (legal distinction between piracy and armed robbery at sea) implies that states are accorded exclusive jurisdiction over crimes in larger areas than traditionally the case. This leaves other states handicapped or unable to act even when their interest is at stake.
It is also logical to infer that the concept of exclusive jurisdiction over armed robbery was
premised on the understanding that, it was usually local/coastal dwellers (generally
citizens) of the state that will be involved in theft and depredation in coastal waters – so the
littoral state will necessarily be the one to exercise jurisdiction over them and and other
states would hardly have a major interest in the incident. The case of the Gulf of Guinea has
defied this historical reasoning – a subject I shall return to later in the paper.
Finally, on the subject of lucus delicti, there is the tendency to be confused over the
expression “in a place outside the jurisdiction of any State” in the definition of piracy (see Art
101 above). The temptation is to think that the phrase is also a reference to the “high seas.”
Those who take this view may rationalize their position on the basis that the high seas can
be conceptualized either as a res nullis or ares communis and therefore outside the
jurisdiction of any state. To equate “high seas” to “in a place outside the jurisdiction of any
State” is, however, not supported by both a textual analysis of Article 101 and the travaux
preparatoires of the Convention. That would in fact imply that the drafting of the article
suffered serious redundancy – by repeating the same thing in different words. It should be
noted that the phrase contemplates regions such as Antarctica, which is not subject to the
jurisdiction of any State.
Actus Reus – Elements of the Crime (Acts of Violence, Detention, Depredation)
In legal and judicial application of law, theactus reus of a crime is key. In fact, withoutactus
reus there cannot be a crime. For the crime of piracy to be made out, it must involve acts of
violence, detention or depredation directed against a ship, goods on board the ship or
persons on board the ship.9
Although the elements of the crime of piracy may look straight forward, in practice the
significance of elements may not be fully appreciated and at times completely missed or
misunderstood. It must be emphasised that the crime of piracy does not require that goods
or some form property must be stolen. A close reading of Article 101 reveals that, the LOSC
9 UNCLOS, Art 101(a). treats the very act of violence or depredation against a ship, its crew, goods on board the ship as piratical acts, provided the other elements of the crime are present. Arguably, once violence is directed against a ship or its crew, it amounts to piracy, whether or not anything has been stolen. Thus domestic legislation seeking to incorporate the piracy provisions of UNCLOS should be broad enough to encompass assault, injury or damage to property not as ancillary crimes but as acts of piracy.10
Facilitation
Article 101(c) also classifies the act of inciting or intentionally facilitating piracy, as well as
voluntary participation in the operation of a pirate ship, as piratical acts.11 Of course, it is
generally the case that the facilitation of a crime is considered a crime so one may ask if there
is any special need to emphasise this point. The truth is that although we generally
understand that facilitation can be a crime, we traditionally classify facilitation and other
conducts like aiding and abetting as ancillary crimes. And when it comes to piracy, people
may treat the facilitation of piracy as an ancillary crime rather than see it as an act of piracy,
especially if the acts of facilitation do not take place at sea.
A 2013 decision by the United States Appellate Court, United States vs. Ali, involving the trial of a Somali ransom negotiator, provides a perceptive interpretation of the scope and nature of the offence of facilitating piracy.12 In the Court’s view, since the phrase “on the high seas” has been used in Article 101(a) (which covers acts of violence or depredation), but is missing in Article 101(c) (which focuses on inciting or facilitating the crime of piracy), the two sections must be interpreted differently.13 The Court took the view that while the offence of facilitating piracy must be in aid of acts committed on the high seas, the charge or crime of facilitating piracy is not contingent on the person having physically participated in the crime at sea. Rather, it is sufficient that the person has played a role in facilitating the offence. And once the person has facilitated piracy, the person has in fact committed piracy.
This reasoning may be criticised as overstretching the bounds of Article 101,14but the
interpretation is logical, well-grounded and a potent tool for combating piracy networks in
10 Eugene Kontorovich, “A Guantanamo on the Sea: The Difficulty of Prosecuting Pirates and Terrorists,” a regional and global context.15 Obviously acts that facilitate, encourage or support piracy
may be remote from the sea. The interpretation of Article 101(c) to treat such acts as acts of piracy is a purposive application of the law and should be encouraged.
Private Ship or Aircraft against Ship or Aircraft
The “ship to ship” rule is a crucial requirement of the crime of piracy. This element demands that acts constituting piracy be committed by the crew or passengers of a private ship (or aircraft) against another ship or aircraft. As in the other cases analysed above, the “ship to ship” requirement may appear to create no difficulties. After all, piracy is a maritime crime and thus expected to be committed at sea. There are, however, some nuances that must be noted. First, the ship to ship rule excludes attacks committed on offshore installations that do not qualify as a ship.16The requirement also excludes situations where crew or passengers hijack a ship on which they are on board. In other words, if persons were to sneak on board a vessel in port and subsequently hijack her at sea, that will not satisfy the ship to ship requirement. Examples of these types of hijacking include the Santa Maria and Achille Lauro. In the case of the Santa Maria, her crew mutinied and took control of the ship, 17 while the Achille Lauro was hijacked by persons who illegally hid within the ship.18 Both incidents fell outside the definition of piracy, although they posed serious threats to the security and safety of the shipping industry and the crews on board. Attempts to cure these jurisdictional gaps led to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA 1988) and its Protocols.
Committed for Private Ends (Lucri Causa)
International Convention for the Prevention of Pollution from Ships (MARPOL) 1973 treats fixed platforms as
ships for the purpose of pollution control. See Chester Brown, “International Environmental Law in the
Regulation of Offshore Installations and Sea Bed Activities: The Case for a South pacific Regional Protocol,” off the Egyptian coast and demanded the release of Palestinian prisoners held in Israel.
One of the important ingredients of the crime of piracy is that it must have been committed
for “private ends”. What does this phrase mean and how can it be judicially interpreted
applying both traditional and purposive rules of interpretation?
First, a point that should not escape our attention, although we will not dwell on it, is the use of the plural “ends” rather than “end” in Art 101(a). Does this mean there must be more than one private end? This uncertainty was created by the drafters of Article 101.
The second, and perhaps main issue is what “private ends” really means. There is the
tendency to equate the phrase to economic or pecuniary benefit (lucri causa). Those who
take this view are thus inclined to argue that piracy is undertaken for economic gain and
therefore does not include or extend to politically motivated acts.19 This restrictive
interpretation means that a person may escape conviction on grounds that the piratical acts were committed for public or political ends. Yet Article 101 does not in any way state that private ends is restricted to personal or economic benefit. Indeed, if the Article had intended economic, pecuniary or personal gain as the scope of “private ends”, that could been explicitly stated by using the words “undertaken for economic or personal benefit.”
The Achille Lauro incident is a classic example of the difficulty associated with the “private
ends” requirement. Assuming the ship to ship requirement had been met, there was still the issue of whether the crime qualified as piracy, since the hijackers were purportedly acting on behalf of the Palestinian Liberation Organization (PLO).20 Also in the context of Nigeria, where in the beginning of their campaigns, elements of the Movement for the Emancipation of Niger Delta (MEND), attacked vessels to agitation rather than for economic or monetary benefit, a person with learning towards the lucri causa interpretation would say that the acts cannot be classified as piracy.
As indicated earlier, there is nothing in the wording of Article 101 to suggest that the
motivation of attack or hijacking must be pecuniary in nature.21 Indeed, as Douglas Guilfoyle
has argued, the expression “private ends” may have been used to echo the expression
“private ship” (which is also used in Article 101), and also to clarify that the piratical-style acts sponsored by a State do not amount to piracy.22 This interpretation provides a
perceptive application of the law and also helps us solve the conundrum of proving the
private or economic motive of a crime.
Practical Difficulties of Exercising Universal Jurisdiction
Piracy is a crime of universal jurisdiction.24Under international law, the jurisdiction of states may be classified into four different types – territorial, nationality, extra-territorial and universal.25 The concept of territorial jurisdiction is founded on the sovereignty of States over their territory. According to this idea, states have control over all matters in their territory, thus making territorial jurisdiction the primary mode of jurisdiction.26 In
exercising territorial jurisdiction, states have the right to enact and enforce laws and
regulations, as well as punish those who violate such laws in their territory.27 In relation to
maritime domains, coastal states enjoy similar territorial jurisdiction in their ports, internal waters and extending to their territorial sea.28
Nationality jurisdiction is based on the binding relationship between a state and its citizens, such that citizens may remain subject to the jurisdiction of their state even when they are outside its territory.29 Similarly, states have jurisdiction and responsibility over vessels flying their flag, regardless of the location of the vessel. However, a coastal state may have Douglas Guilfoyle.
It is noted that there are varying views on the classification of jurisdiction under international law. Some
commentators refer to only two types of jurisdiction – prescriptive and enforcement, preferring to treat
territorial, nationality, extra-territorial and universal jurisdiction as examples of the exercise of the other two types of jurisdiction. Other writers discuss only territorial and nationality jurisdiction, treat the other two as exceptions. It is important to note, however, that the classification of jurisdiction adopted in this chapter does have the support of several commentators.
The right to legislate is often referred to as an example of prescriptive jurisdiction, whilst enforcement
jurisdiction refers to the right to investigate, arrest, prosecute and punish perpetrators for violations.
This principle was elaborated in the Nottebohn Caseconcurrent or overriding jurisdiction where the vessel is in its ports or territorial sea, or otherwise engages in activities over which UNCLOS vests primary jurisdiction in coastal states.30 However, where a vessel is on the high seas, only the flag state will have jurisdiction over the vessel, except in exceptional circumstances provided by UNCLOS.31
Extra-territorial jurisdiction is largely a derivative of territorial and nationality jurisdictions, which are exercised in special circumstances. For example, an offence outside the territory of a state may nonetheless affect or impact on the state, thus allowing it to assume jurisdiction in respect of the activity.32 This head of jurisdiction is sometimes referred to as the protective principle.33
In contrast to the other three forms of jurisdiction, universal jurisdiction is a unique creation of international law, vesting states with the right to legislate and take enforcement measures over crimes that neither relate to their territory nor their citizens.34 Since the declaration of pirates ashostis humanis (enemies of mankind), international law has treated piracy as a crime of universal jurisdiction, along with war crimes, genocide and crimes against humanity.35 These crimes are considered heinous, and thus the objective of universal jurisdiction is to suppress or prevent their commission.
Pirates may therefore be arrested and prosecuted by the legal system of any State,
irrespective of the flag of the vessel attacked, the flag of the vessel used to commit the piracy, or the nationality of the pirates.36 In practice, however, states may show reluctance in taking counter-piracy measures. This posture may be informed by practical constraints including logistics and judicial inadequacies, or dictated by a national policy that justifies prosecution of non-nationals only when a well-defined national interest (political, security or economic) 30 For example, the rights of coastal States in the Contiguous Zone, Article 33; in the EEZ, Articles 55 and 73; and over the Continental Shelf, Article 77.
31 UNCLOS, Article 92.
32 See Attorney-General of the Government of Israel v Eichmann 36 International Legal Materials 5 (1961).
33An example is the Barcelona Traction Case, where the ICJ upheld the right of Belgium to claim jurisdiction to
protect the investment interest of its nationals who were principal shareholders in a company.
Recent acknowledgement of the applicability of universal jurisdiction in regard to heinous crimes can be found in the ICJ’s ruling in Arrest Warrant of 11 April is affected.37 Prosecution may also be stalled because of the inadequacy of the domestic legal framework of the State concerned.38This last point is examined in the case studies of Nigeria and Ghana later in this chapter.
Armed Robbery at Sea – Nature, Definition and Jurisdiction
In contrast to piracy, the phrase “armed robbery against ships” or “armed robbery at sea”
(or simply “sea robbery”), denotes robberies or acts similar to piracy that are undertaken
within the territorial sea, internal waters, ports or anchorages.39 Since the sovereignty of
coastal states extends to these maritime spaces, jurisdiction over armed robbery against
ships comes under the exclusive authority of these states.40
Since the crime of armed robbery against ships comes under the exclusive jurisdiction of
coastal States, UNCLOS has no provisions dealing with the offence. Therefore, the particular
acts that constitute the crime must be expressed in the domestic legal system of coastal
states.41 This has both positive and negative implications. On the negative side, states will
have varying and sometimes conflicting approaches to the exercise of jurisdiction which can hamper maritime security enforcement.42 Conversely, it could be argued that the exclusive jurisdiction of coastal states over armed robbery at sea gives such states the opportunity to enact their own legislation, thus circumventing the difficulties inherent in the definition of piracy under international law. It must be emphasised that nothing obliges a state to define the crime of “armed robbery at sea” in the terms as the crime of piracy, although there is a tendency to do so.
Implications of the Somali Experience for the Future Development of the Law on
Piracy and Armed Robbery at Sea
As a result of the legal analysis above (especially the distinction between piracy and armed
robbery), international efforts aimed at combating the activities of Somali pirates were often
hampered. 43 These legal and conceptual challenges were compounded by the fact that the
State of Somalia claimed a territorial sea of 200 nautical miles, thus adding to the difficulty
in implementing counter-piracy measures. 44Additionally, the Somali State has been subject
to widespread violence and instability for many years, and has often been without a
functioning government.
To obviate the above legal and practical difficulties, the UN Security Council adopted
Resolution 1846, granting authority to naval forces to enter Somali territorial waters and use
“all necessary means” to repress piracy.45Additional resolutions were also adopted,
including Resolution 1851, which permits the pursuit of pirates into Somali land territory.46
Though the resolutions do not stipulate specific measures, their scope has been interpreted
as including the right to seize and dispose of boats, vessels, arms and related equipment
being used by the pirates or robbers, as well as the right to arrest and prosecute such
offenders.47
In maritime security literature, these resolutions have been described as creating the regime
of “reverse hot pursuit”.48 Arguably, the resolutions reflect a progressive development in the law on piracy and armed robbery against ships. 49 This view, however, can be rebutted on grounds that the resolutions were meant to address a specific situation, and are not intended to have a wider application. 50Also, since the resolutions required the permission of the Transitional Federal Government of Somalia, it is possible to argue that the resolutions merely reflect existing principles of international law – namely, the exclusivity of territorial jurisdiction, with the caveat that States have the right to waive their sovereignty and exclusive jurisdiction.51 The resolutions may also be construed as an exercise of the authority of the Security Council on matters of peace, rather than a new direction in international law.52 No matter which one of these positions is taken, the fact remains that the Somali resolutions have brought a new dimension to countering piracy and armed robbery against ships, and may be able to be replicated in other situations.53
GENERAL ISSUES AND CHALLENGES FOR POLICY ATTENTION
Despite the fact that piracy has long been regarded as a crime subject to universal
jurisdiction,54 a number of practical and legal challenges arise in respect of the prosecution
and incarceration of pirates. By no means do all states have adequate and up to date domestic laws to criminalise piracy. Further, the costs of prosecuting and incarcerating pirates have proved strong disincentives to action. Additional disincentives to action on the part of capturing states include the practical difficulties of handling prisoners on board naval vessels, potentially for considerable periods of time, and the absence of rules relating to the transfer of apprehended pirates to countries willing to investigate and prosecute them, as Comparative Law 1, 3, 2012, pp. 81-106. Douglas Guilfoyle, Piracy off Somalia: A sketch of the legal framework,
April 2009, Blog of European Journal of International Law, Available: http://www.ejiltalk.org/piracy-offsomalia-
a-sketch-of-the-legal-framework/, 16 July 2013.
50 See for example paragraph 11 of Resolution 1851.
51 The counter-argument is that the requirement of prior permission is often inserted in such resolutions
merely for political expediency, as the actions of the Security Council under Chapter VII of the UN Charter are
enforceable without the consent of the particular State.
52 Articles 25 and 39, Charter of the United Nations, San Francisco 1945. Generally on the effects of Security
Council decisions, see Bruce Russet and James Sutterlin, “The UN in a New World Order,” Foreign Affairs, Spring well as the question of the eventual fate of convicted pirates once they have served their sentences. Will they be returned to their state of nationality?
It was these and other factors, that made many navies operating off the Horn of Africa to
adopt an approach of ‘catch and release’, where captured pirates are disarmed but otherwise face no real consequences for their actions such as prosecution and imprisonment. Indeed, in his report to the UN Secretary-General, the Secretary-General’s Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, Jack Lang, suggested that “more than 90 per cent of the pirates apprehended by States patrolling the seas will be released without being prosecuted.”55
In the context of Somali piracy, the US and European States negotiated bilateral transfer
agreements allowing for the prosecution of alleged pirates in third States such as Kenya, the Seychelles and Tanzania.56 This practice has, however, placed great strain on the criminal justice systems of the States receiving the alleged pirates as well as raising concerns over handing suspect over to such jurisdictions on human rights grounds.57
The other legal debacle is the collection and preservation of evidence and the procuring of
witnesses. Normally, the crew who are the primary victims and witnesses of a piracy
incident, are not located within the jurisdiction. How do you get them to testify in a trial? And who bears the cost? Even if there is readiness to bear the cost, they may not be interested in testifying. There is also the question of sentencing. Different states have different scales of punishment and this has reflected in highly uneven nature of the sentences handed down to pirates when prosecuted and convicted in different jurisdictions.58
LEGAL AND JUDICIAL COMPLEXITIES IN THE GULF OF GUINEA SETTING
Gulf of Guinea piracy raises additional peculiarities beyond the general issues discussed so
far. Whereas the legal developments and experiences from Somalia have relevance for the
Gulf of Guinea, piracy and armed robbery in the region present distinct legal challenges.
Hybrid of Traditional-Insurgent Piracy
The successful prosecution of any crime depends, first and foremost, on the ability to
establish jurisdiction over the suspects, followed by an assembling of the requisite evidence to prove the crime. Although Somali pirates operated with considerable skill and resolve, aided by sophisticated criminal networking, their modus operandi fitted largely into the paradigm of traditional piracy.59 In this context, a ship is hijacked, held in a safe haven, while ransom is negotiated and paid. This profile makes both the establishment of jurisdiction and the relevant evidence for prosecution not too complicated; especially so when the pirates are generally Somalis.
The Gulf of Guinea presents a different scenario with its hybrid of traditional andinsurgent
piracy. Here, unlike Somalia, pirates in the Gulf of Guinea frequently disable ship’s
equipment and take control of the ship altogether thus endangering the safety of ships. This
necessitates not just combating ‘crime of piracy’ but those provided under the Convention
for the Suppression of Unlawful Acts at Sea (SUA) and its Protocols that are directed at
safeguarding the safety and security of the ship.60 This gives rise to mix jurisdiction in relation to the ‘heads’ of crime and therefore multiple criminal investigation and prosecution requirements.
Outward-Inward Piracy
There are further complications of mixed jurisdiction as well. Piratical incidents in the Gulf
of Guinea are both inward and outward. This characteristic makes the distinction between
piracy and armed robbery at sea problematic and also renders the jurisdictional interests
complex. For example, there are instances where elements of MEND or pirates operating
from other countries come into the territorial sea, and at times, port areas of other states
(especially Benin and Togo) to hijack ships which are commandeered to the shores of the
Niger Delta.61 Ghana’s experience with theMarine 711, on 25th March, fits into the same
59 On the operations and tactics of Somali piracy, see Raymond Gilpin, “Counting the Costs of Somali Piracy,”scenario. From the perspective of Benin, Togo and Ghana, these are inward-outwardcases of piracy, and in relation to Nigeria it may be described as an outward-inwardpiracy. To make it more complicated, the pirates might have commenced their operations by ceasing a fishing vessel in Nigerian territorial sea, which has been used as a major ship. This presents a very complex situation. The law can simply categorize the scenario into piracy and armed robbery at sea, but the reality goes beyond that.
Issues of Evidence
From the scenario above, where long distance piracy is conducted into the territorial sea and port areas of states, each state would have immediate and significant jurisdiction founded on sovereignty and the protection of national security and economic interest; leading to multiple jurisdictional interests. This may be viewed as positive because it allows any of the states to investigate and prosecute, but that is in theory, the reality is another thing. In practice, the evidence would be split; some within the possession of Benin and some within the possession of Nigeria; certainly also, the witnesses would be dispersed. More significantly, if any of the state refuses to cooperate or exclusively views the crime as falling within its sovereignty (armed robbery at sea) the jurisdictional fault lines would be even more profound.
Articles and Proceeds of Crime
Another key challenge in the Gulf of Guinea context relate to the article of crime, and
consequently the proceeds of crime. Stealing of petroleum cargo is the primary motivation
of pirates in the Gulf of Guinea. The cargo is often transferred and sold at sea while the
hijacked ship released. Even in the case of hijacking for ransom, the victims are kidnapped
and the vessel released. Hence, the duration of the crime is generally short, compared to the Somali coast. More significantly, it is difficult to trace both the article and proceeds of the crime. This is an additional limiting factor for successful prosecution of piracy offences in the Gulf of Guinea.
Further Jurisdictional Complexities
There are also indications that unlike Somalia, Gulf of Guinea pirates, including the case of
the Niger Delta, may not be of single nationality. Therefore, additional jurisdiction may be
founded (and should be founded) on the basis of nationality by third states especially where suspects are within the territory of the state. All this aside, the flag state and the state of nationality of any of the victims of the crime, and indeed the generality of states, would have jurisdiction on the basis of international law. These intricate overlays, lead to a conundrum of jurisdictional interests and imperatives with grave implications for effective investigation, evidence gathering, procuring of witnesses and successful prosecution.
