Adjudicating Somali Piracy Cases – German Courts in a Double Bind

 Posted by: Ahlborn Christiane

Cross-posted on the CJICL blog

On 19 October 2012, a court of first instance in Hamburg sentenced ten Somalis to prison in what was the first piracy case before German courts in over four hundred years (the decision has not yet been released but for a comprehensive press release of the court in German see: here). The acts of piracy took place on 5 April 2010 when the Somalis entered the German container ship “Taipan”, which was on its way from Haifa to Mombasa, with a distance of about 530 nautical miles from the Horn of Africa. The heavily armed Somalis intended to take the crew of the Taipan hostage and to hold them for ransom, but the crew fled into a hidden safe room and cut the ship’s energy supply. Shortly thereafter the Somalis were arrested by the Dutch frigate “Hr. Ms. Tromp”, brought to the Netherlands and handed over to Germany on 10 June 2010. The procedure began on 22 November 2010, and ended with prison sentences ranging from two to seven years for extortionate kidnapping (§ 239 (a) para. 1 of the German Criminal Code) and attacking sea transportation (§ 316 (c) para. 1 no. 1 of the German Criminal Code).

The recent increase in piracy trials before domestic courts in Europe and beyond – also including courts in the Netherlands, Italy, France, and the United States – is the result of intensified efforts to fight piracy off the Horn of Africa. In 2008, the Somali government had asked the UN Security Council for support in this regard. The UN Security Council reacted to the request by passing resolutions 1814 (15 May 2008), Resolution 1816 (2 June 2008) and 1838 (7 October 2008), which authorised UN member states to take measures to fight piracy in Somali waters. The resulting international anti-piracy efforts are led by the EU’s ATALANTA operation (EU-NAVFOR Somalia), which the Council of the EU established by means of EU Council Joint Action 2008/851 and EU Council Decision 2008/918, on 8 December 2008. Since 2009 ATALANTA’s efforts are further reinforced by NATO’s Operation Ocean Shield and the US-led Combined Task Force (CTF-151). The international security presence has undoubtedly had a deterrent effect on pirates in the Indian Ocean, which should not be underestimated. Nonetheless, despite the UN Security Council mandates, warships are somewhat reluctant to arrest suspected pirates on the high seas, possibly anticipating the legal difficulties related to their treatment back home. For instance, the German navy – following orders by German or EU authorities – has repeatedly released suspected pirates for lack of authority over them (for press reports see here and here).

In view of President Guillaume’s statement in the Arrest Warrant case that piracy is the only true case of universal jurisdiction under customary international law (p. 37, para. 5), the reluctance of states to arrest and try suspected pirates might come as a surprise. Indeed, Cicero already characterized pirates as “enemies of all peoples” (hostes humani generis in De Officiis iii 29) and piracy is nowadays considered ius cogens. The details of this ius are fleshed out in Articles 101 to 107 and 110 of the UN Convention on the Law of the Sea (UNCLOS). Article 101 of UNCLOS defines piracy as consisting of (a) any illegal acts of violence or detention, committed for private ends, against a ship, aircraft, property of persons (i) on the high seas or (ii) outside the jurisdiction of any state. Paragraphs (b) and (c) of Article 101 of UNCLOS also include voluntary participation and incitement or intentional facilitation in the definition of piracy. According to Article 105 of UNCLOS, the capturing warship may send pirates for trial before its own courts, thus recognizing that states have universal jurisdiction. Nonetheless, Article 105 of UNCLOS does not establish an obligation for the capturing state or third states to bring pirates to trial (see Douglas Guilfoyle’s analysis on EJIL:Talk! here) and domestic courts are generally hesitant to establish jurisdiction in cases of piracy without any direct links with their respective countries. Only few exceptions exist in this regard. In 2010 a Dutch court in Rotterdam held that it had universal jurisdiction over five Somali pirates arrested by a Danish frigate (for the English press release see here), and in the 2012 decision in United States v. Ali a US Court found that a Somali interpreter could be lawfully subject to domestic prosecution on counts of aiding and abetting acts of piracy even without a nexus with the US. Most recently, on 18 October 2012, a Court of Appeal in Nairobi referred to universal jurisdiction under international law when repealing a controversial 2010 judgment in which a lower court had held that Kenyan courts had no jurisdiction to try suspects of piracy charges allegedly committed in the Indian Ocean beyond Kenya’s territorial waters (for a detailed news report see here)

The Hamburg criminal court chose a similar approach to justify its jurisdiction over the ten Somali pirates, but also referred to the fact that German nationals were affected by the criminal acts at sea. In addition to international law considerations, German jurisdiction over the pirates – and in particular the jurisdiction of the Hamburg court – was also based on the German Code of Criminal Procedure. The determination of the court of jurisdiction for criminal acts committed on ships and planes is regulated in section 10 of that Code. Accordingly, criminal acts at sea are adjudicated by the court in whose district the ship’s home port is located. More precisely, section 10 (as translated by gesetze-im-internet.de) provides: “If the criminal offence was committed outside the territorial scope of this statute on a ship authorized to fly the Federal flag, the competent court shall be the court in whose district the ship’s home port is located, or the port within the territorial scope of this statute first reached by the ship after commission of the offence.”

Despite the fact that the Somalis had violently attacked a German ship, the lengthy (105 days in court) and complex trial in Hamburg was heavily criticized in the German public, mainly for reasons related to the overall purpose and costs of this “non-sense justice” (see the comment on Spiegel Online here). The defence argued that the detention of the pirates was already unlawful because the Somalis were not brought before a German judge without delay while being detained on the Dutch warship Tromp. However, the European Convention of Human Rights (ECHR) – on the basis of which the Hamburg decision may be ultimately checked – allows for some degree of flexibility. The potential limits of this flexibility were determined in the above-mentioned Rotterdam case, in which the Dutch court found that the waiting period of 40 days between the arrest of the Somali pirates and the hearing by a judge violated Article 5 of the ECHR (see in this regard the decisions of the European Court of Human Rights (ECtHR) in Rigopoulos v. Spain and Medvedyev v. France).

Besides procedural concerns, substantive human rights considerations arguably weighed more heavily in the Hamburg proceedings. Several of the pirates pleaded that they were coerced to commit acts of piracy; others had argued that they did not have another possibilities to make a living under the harsh conditions in Somalia. The Hamburg court rejected these arguments in light of the available evidence, but took into account the dire living conditions in Somalia in determining the different sentences. However, while dire living conditions per se can certainly not have an exculpatory function, the application of German criminal law to Somalis that have never stepped on European soil before their trial in Hamburg has rightly resulted in considerable criticism. German media have repeatedly pointed out that the suspects – some of them possibly under age – were unfit for a trial before German courts. When asked for his birth details, for instance, one pirate stated that he was born “under a tree” or “during the rainy season”. Considering this criticism from a more legal point of view, a look at the relatively dense case law of the European Court of Human Rights on the principle of legality may indeed reveal that the Hamburg decision does not comply with established standards such as accessibility and foreseeability of the applicable law. Although the Somalis were certainly aware of their wrongdoing when capturing the Taipan, they could not expect their possible punishment under German criminal law, and act accordingly. In fact, the Hamburg court stayed below the substantially longer sentences requested by the prosecution – a decision that might also have been based on legal, and not only socio-economic, reasons. More generally, the adjudication of Somali piracy cases calls into question the aims of criminal justice, in particular with regard to post-detention re-integration into society.

Interestingly, another German court has taken a more human rights friendly stance about a year before the Hamburg decision. On 11 November 2011, a German administrative court in Cologne ruled that Germany had violated the prohibition of torture, inhuman and degrading treatment (Articles 3 ECHR and 7 ICCPR) by transferring Somali pirates to Kenya, who had previously been arrested for suspected acts of piracy by the German frigate “Rheinland-Pfalz” acting in the framework of ATALANTA (the judgement is available here). The reason why the suspected pirates were transferred to Kenya was an Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of piracy, which was approved by the Council of the EU on 26 February 2009 (Council Decision 2009/293/CFSP). The German court rejected two other claims by the plaintiffs that the arrest and detention on the Rheinland-Pfalz were in violation of international and German constitutional law, thereby explicitly discussing arguments also brought forward in the Hamburg case regarding universal jurisdiction under UNCLOS (paras. 29-34 of the Cologne judgment) and procedural detention standards under the ECHR and the German Basic Law (paras 35-48 of the Cologne judgment).

As much as the decision of the Hamburg court has been criticized, the court arguably was in a double bind. On the one hand, it was clear from the facts that the suspects had hijacked the German ship – much clearer than in the above-mentioned case before the Cologne court that dealt with German responsibility for the transfer of suspected pirates. On the basis of the available evidence, the Hamburg court did therefore not really have the option to acquit and release the pirates despite possible rule of law violations. On the other hand, the alternative solution of sending the pirates back for trial in Somalia or Kenya was equally not available, for reasons illustrated by the judgement of the Cologne administrative court. In other words, the German court was faced with conflicting human rights considerations. While the respect for the principle of legality, including the foreseeability and accessibility of the law, might have warranted the transfer of the suspected pirates Somalia or Kenya, concerns of possible degrading and inhuman treatment in these countries prevented such an approach. Either road taken by the German Court would have lead to wrongful results, possibly engaging Germany’s responsibility for different human rights violations.

In this context, it is noteworthy that not only Germany would run the risk of incurring international responsibility. The pirates were handed over to German authorities by the Netherlands. Moreover, both the Netherlands and Germany acted under the auspices of ATALANTA and under a Security Council mandate. Indeed, the fact that the German warship Rheinland-Pfalz was part of the EU’s ATALANTA mission played a role in the proceedings before the Cologne administrative court. On the basis of the Behrami and Saramati decision of the ECtHR, Germany pleaded that it was acting under the control of ATALANTA so that the transfer was attributable to the European Union. After investigating the factual details based on the Behrami standard, however, the Cologne court found that the decision to hand over the arrested Somalis to Kenya was attributable to Germany. The court thereby took into consideration that four German ministries had convened to decide about the transfer of the Somalis to Kenya and that the German ministry of defence had given ordered the Rheinland-Pfalz to head for Mombasa (paras. 49-57 of the Cologne judgment). In this regard, it also did not make a difference for the court that Kenya provided assurances and guarantees with regard to human rights protection in the country, and also granted the EU extensive rights of supervision and control in this regard in the above-mentioned Exchange of Letters that was approved by the EU only a few days before the transfer.

When adjudicating piracy, domestic courts are put in a position where they almost inevitably violate human rights standards. This inacceptable situation provides additional support to the on-going debate whether piracy should be regulated on a broader scheme. For instance, it has been suggested to establish international or regional tribunals to take care of piracy cases. Alternatively, piracy cases could be handled by another Hamburg court, the International Tribunal of the Law of the Sea (ITLOS). Since ITLOS only has jurisdiction over states and international organizations, the implementation of such a proposal would require some inventive talent. An international instance with jurisdiction over individuals is the International Criminal Court in The Hague. However, the suggestion of including piracy in the Rome Statute has been rejected. In the absence of any immediate political solutions to address the root causes of piracy in failed states, the number of piracy cases before domestic courts is thus likely to increase. As a matter of fact, nine out of ten Somali pirates filed an appeal against the decision of the Hamburg court. It remains to be seen whether the competent Federal Court of Justice (Bundesgerichtshof), the highest German appellate court in civil and criminal matters, will be able to untie the knot in which the lower courts are wound up.

The Seabed Disputes Chamber clarified the meaning of joint and several liability (but also raised new questions)

 Posted by: Nollkaemper André

The principle of joint liability in undeveloped in international law. Though some treaties refer to it, and several scholarly articles that have recognized its importance for situations where multiple actors cause injury, the scope and contents of the principle remain uncertain. It is therefore of some importance that the Advisory Opinion of the Seabed Disputes Chamber of ITLOS on Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (1 February 2011) discussed the principle. In his presentation at the SHARES Seminar on Shared Responsibility in Environmental Law, held at ACIL on 7 November 2011, Judge Treves provided further insight into these, until now somewhat neglected, aspects of the Opinion.

The question of liability for activities on the deep seabed is bound to become of increasing significance. Last July, the Seabed Council approved the plans of work for exploration for polymetallic nodules and polymetallic sulphides in the international deep seabed Area submitted by four entities (see: Press release). In all cases of exploration, more than one actor will be involved (the Authority, the entity carrying out the exploration and the sponsoring state). Liability in case of damage thus also may involve multiple actors.

The Law of the Sea Convention does envisage the possibility of joint and several responsibility in this context. Article 139 stipulates that ‘damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability’.

The Opinion clarifies a few aspects of joint and several liability, while at the same time raising new questions. Three particularly noteworthy issues relate to 1) the requirement of ‘common damage’, 2) the requirement of concerted action, and 3) the possibility of joint liability between states and private parties.

As to the first point, the Seabed Chamber stated that ‘joint and several liability’ arises when the actors involved contribute to the same damage. It said that joint and several liability arises ‘where different entities have contributed to the same damage so that full reparation can be claimed from all or any of them.’ (para 201).

Is it not immediately clear what the source of this definition is. Neither the Law of the Sea Convention nor subsequent instruments adopted by the Seabed Authority expressly include the requirement of ‘common damage’. But, also given the type of activities on which Article 139 sees, it indeed seems to be implicit in Article 139 that when more actors are involved, they only will be jointly liable if they have contributed to a common damage.

The definition of joint liability in terms of common damage conforms to the meaning of the term ‘joint and several liability’ in the domestic law of many states and also otherwise rests on good grounds. It is precisely the fact that two or more actors contribute to a single damage (or injury), and that it cannot be determined who contributed what part, that leads to the need to allow third parties to bring a claim for relief against all responsible actors, and thus to the need for joint responsibility.

It is noteworthy that this definition differs from the International Law Commission’s concept of plurality of responsible states, which is based on the same wrongful act, not on the same damage (cf. Article 47 ILC Draft Articles on Responsibility of States). Even though a wrongful act will involve injury, and even though injury will be the starting point of analysis for any question of reparation, there is a fundamental difference between the approaches. Common damage need not necessarily involve a single wrongful act and, moreover, it is not clear that the very problem that justifies resort to joint liability (impossibility to apportion contribution to damage) applies to the same extent in case of contribution to the same wrongful act. Indeed, Article 47 raises many questions that need to be further explored.

A second point to highlight is that the Law of the Sea Convention envisaged joint liability if states and international organizations are ‘acting together’. It is not immediately clear what this means. Does this require concerted acts (leading, as we phrased it in the SHARES Concept Paper, ‘cooperative responsibility’), or can it also refer to two states or organizations acting independently from each other (leading to what we called ‘cumulative responsibility’)? On the basis of the normal meaning of the words used, the former seems the more plausible interpretation . Yet , the Chamber apparently accepted the possibility that two sponsoring states can be jointly and severally liable, even when they were not involved in a concerted action. The Chamber said that ‘article 139, paragraph 2, of the Convention and related instruments dealing with sponsorship do not differentiate between single and multiple sponsorship. It should be recalled that in principle the liability of a sponsoring state is based on a failure to take all necessary and appropriate measures to secure effective compliance by persons whom they have sponsored. Accordingly, the Chamber takes the position that, in the event of multiple sponsorship, each of these sponsoring states can be liable for failure to take all necessary and appropriate measures. If so, the liability is joint and several unless otherwise provided in the Regulations issued by the Authority.’ (para 192).

From the perspective of protection of victims, this broad approach (joint responsibility also in case of states not acting in concert) may make sense. But it is not immediately clear what the basis of such a principle is. One possibility is to read the words ‘acting together’ in Article 139 broadly, and include cases of non-concerted action. Such interpretation could also be inspired by the use of the term in domestic law (and given the dominant meaning of the term in domestic law, perhaps even as the ordinary meaning of the term). Another possibility is that this meaning of joint liability would reflect a more general principle of (international law), operating outside the express terms of Article 139. This was indeed suggested by Judge Simma in his Separate Opinion in the Oil Platforms Case, who suggested that where two or more states are subjected to identical obligations and cause a common damage, they are jointly and severally liable. However, this latter interpretation would be far reaching, in particular when large numbers of actors are subject to, and fail to comply with, identical obligations. It certainly is not a settled issue that as a matter of general international law if such states fail to comply with such obligations, and contribute to a common damage, joint and several liability is triggered. International law remains based on the principle that states are responsible only for damage caused by their own wrongful acts and omissions. It may be that the specific situation of sponsorship is sui generis and that it is this specific situation that brought the Chamber to its conclusion. But the text of the Advisory Opinion may have opened a door and it requires further thought whether that door should be left open.

A third issue raised by the Advisory Opinion is the possibility of joint liability between states and contractors. Even though (sponsoring) states can be liable (jointly or not), the actual damage will be caused by contractors, not states. The Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable ‘for any damage arising out of wrongful acts in the conduct of its operations’. The question is whether the liability of contractors and states can be joint. This is a matter of broader significance for international environmental law. The SHARES seminar on international environmental law made clear that most cases actual damage will be caused not by states but by private actors, and the question how liability of both actors is linked becomes relevant.

The Chamber said that Article 139 of the Convention does not provide for joint and several liability between the sponsoring state and the contractor. It reasoned that ‘the liability of the sponsoring State arises from its own failure to carry out its responsibilities, whereas the contractor’s liability arises from its own non-compliance. Both forms of liability exist in parallel’ and that while ‘the liability of the sponsoring State depends on the occurrence of damage resulting from the failure of the sponsored contractor, […] this does not make the sponsoring State responsible for the damage caused by the sponsored contractor’ (para 204).

While this construction is not surprising and probably in line with the intention of the drafters, it might be argued that if joint and several liability of two sponsoring states can be based on two independent failures to take appropriate measures, that could also not apply to independent wrongdoing by states and private actors. It is true that the Convention does not provide for this, but neither does it expressly provide for joint and several liability of independently acting multiple sponsoring states (unless we adopt a broad interpretation of ‘acting together’). The interpretative room assumed by the Chamber in interpreting Article 139 may not need to stop there.

The main argument against accepting joint and several liability of sponsoring states and the contractor is that the liability is governed by different legal orders – the liability of the contractor being relegated (as normally is done with international provisions on liability of private actors) to the domestic level. But the situation is not at all clear-cut here.

However, the Convention (in Article 22 of Annex 3) does recognize that not only states, or the Authority, but also contractors can be liable  ‘for any damage arising out of wrongful acts in the conduct of its operations’. This does not appear to refer to liability under national, but under international law. Moreover, under certain conditions the Seabed Disputes Chamber can have jurisdiction over disputes involving private parties (Article 187). There thus might well be room to consider further the possibility and desirability of joint liability between states and contractors who contribute to the same damage.

A report of the SHARES seminar on Shared Responsibility in International Environmental Law, including a summary of the discussion on the presentation by Judge Treves, will be published on this site shortly.