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Diplomacy in Action

Counter-Piracy Policy: Delivering Judicial Consequences

Andrew J. Shapiro
Assistant Secretary, Political-Military Affairs
Keynote Address to American University Law Review Symposium
Washington, DC
March 31, 2010


As prepared

Thank you, Dean Grossman for that kind introduction. And thank you to the Law Review for inviting me to take part in today’s symposium. Back when I attended law school, I was a member at one of my law school’s journals. And let me say, it is a pleasure to attend a law journal event free of any responsibility for cite-checking, a task that ate up numerous hours of my second year.

I commend the American University Law Review for holding this symposium on piracy. Pirates hold an enduring fascination in our popular culture whether it be Disney movies starring Johnny Depp as the charming pirate rogue, Captain Jack Sparrow; Peter Pan’s arch-enemy Captain Hook; or even Long John Silver in Robert Louis Stevenson’s Treasure Island to name a couple of examples. However, as recent events have shown, 21st Century piracy bears little resemblance to piracy as portrayed in the movies or in books. It is a dangerous, deadly business that presents unique legal and policy challenges.

Last spring, I was about to be nominated for the position of Assistant Secretary of State for Political-Military Affairs. At the time, the attempted seizure of the U.S.-flagged Maersk Alabama and the plight of Captain Richard Phillips and his shipmates topped the headlines. Needless to say, I have been very much focused on how best to counter and prevent piracy ever since.

Indeed, the attack on the Maersk Alabama and the plight of its crew captured the nation’s attention. We all remember the dramatic Easter Sunday rescue of Captain Richard Phillips. Looking back almost a year later, we can be thankful that no other U.S.-flagged ships have since been seized. But it’s also a sobering reminder of the significant stakes involved.

At the time of the Maersk Alabama incident, Secretary Clinton declared that, “We may be dealing with a 17th Century crime, but we need to bring 21st Century solutions to bear.” She is absolutely right. Piracy has bedeviled the United States since the early days of the Republic, but today it presents a complex challenge that requires a multifaceted international response.

This afternoon, I’d like to give you a policy maker’s view of how we’re working to realize Secretary Clinton’s vision. In particular, I’d like to focus on the efforts we are making – and the challenges we are facing – to deliver judicial consequences to suspected pirates while strengthening the rule of law through judicial capacity building. These are efforts that we feel will both help to combat piracy and yield significant long-term benefits for stability in the wider region.

America’s experiences with confronting piracy date back to our earliest history, as a newly independent nation’s merchant vessels faced seizure and ransom in the Mediterranean at the hands of the Barbary States of North Africa - Morocco, Algiers, Tunis, and Tripoli. Then-U.S. Minister to France Thomas Jefferson strongly opposed the conventional European practice of paying annual “tribute” to the Barbary states. In his memoirs, Jefferson recounts intensively lobbying his fellow diplomats in Paris in 1785 to form what he called “a special confederation,” whose mission would be “to compel the piratical States to perpetual peace.” However, Jefferson’s plan for an international coalition was unsuccessful, historians note, because many countries of the day felt it was simply cheaper to pay than fight. In 1795 alone, the United States was forced to pay nearly a million dollars in cash and goods to ransom 115 sailors held in Algiers.

When Jefferson entered the White House in 1801, he responded to new tribute demands by deploying a squadron of frigates to the Mediterranean. The rest is history: more than a dozen years of naval engagements immortalized figures such as Commodore Stephen Decatur and William Bainbridge - coincidentally the namesake of the Navy destroyer that spearheaded the Maersk Alabama rescue. A new nation undertook what was then an unprecedented military expedition to “the shores of Tripoli.” In 1815, the United States finally concluded a diplomatic agreement ending its practice of tribute payments to the Barbary pirates.

Today, it is well-recognized that the primary cause of piracy along the major maritime highway of the Gulf of Aden and Somali Basin rests in the state of disorder that has plagued Somalia for more than 20 years. Piracy is a lucrative business where young men sent to sea in skiffs with second hand weapons to seize commercial vessels - as well as shiploads of humanitarian food aid - for ransom.

When pirate attacks succeed, the criminal proceeds from ransoms offer little benefit to Somalia’s shattered economy. Organized criminal enterprises exploit Somalia’s instability and more than 1,800 miles of relatively unsecured coastline - an area roughly equivalent to the length of the U.S. eastern seaboard. And they – not the Somali villagers they rely on – derive the primary economic benefits of their criminal activity - an estimated $30-$50 million in ransoms to date. Given that many companies choose not to publicly disclose their payments, many experts consider this to be a conservative estimate. At the high end of estimated costs, a 2008 RAND Corporation study estimated up to $16 billion in direct and indirect costs if you include factors such as increased insurance premiums, diverted trade, and potential economic impacts of trade and investment in the region discouraged by maritime insecurity.

Just as in Jefferson’s day, modern piracy is driven by these ransom payments, and continued payments will only encourage more kidnappings. For this reason, the United States actively encourages other states to adopt our no concessions policy and refrain from paying ransoms.

The promise of ransom money, combined with the perception of impunity for this criminal behavior makes prosecutions essential to deterring piracy. In the 17th Century, piracy trials were often brief. The sentence was fairly certain. And it was immediately carried out. Today, of course, we have to apply 21st Century standards of evidence, human rights, and other legal protections.

Piracy has long been defined as a universal crime. Under international law, any state may prosecute pirates. The 1982 Law of the Sea Convention and customary international law authorize all nations to prosecute an act of piracy regardless of whether the incident involved an attack on their national interests.

However, prosecuting suspected pirates is not as simple as it sounds at first blush. Too many countries that are victimized by modern piracy do not prosecute suspected pirates when they are apprehended. Some countries lack sufficient domestic law to support prosecution of suspected pirates. Others have the domestic legal frameworks, but lack the resources or political will to take action. Then there are the logistical difficulties in prosecuting piracy cases – such as evidence collection and preservation at sea, bringing in merchant mariners or naval personnel to provide testimony and difficulty proving intent in cases where you haven’t caught the suspects in the act. Finally, some countries that might otherwise provide a venue for prosecution may also have concerns about removing acquitted suspects from their territory as well as the status of convicted pirates who are released after serving a prison sentence.

In addition to these challenges, prosecuting pirates can be an incredibly complex proposition in today’s globalized world. The realities of international shipping and global commerce are such that in any given piracy case you could have suspected Somali pirates intercepted and apprehended by a British naval vessel after trying to attack a Liberian-flagged ship, owned by a Canadian company, crewed by Ukrainians, Indians, and Filipinos, with a Russian captain and carrying cargo owned by a Turkish company, en route for delivery to a company in Dubai. And the case could be taking place in a courtroom in yet another country, like Kenya or the Seychelles, which are both currently prosecuting piracy cases. The logistical and diplomatic challenges presented by such a scenario are immense.

Inside the U.S. Government, we have successfully developed a robust interagency process to address the piracy issue. It’s a truly “whole-of-government” response, co-led by the Department of State and the Department of Defense, and featuring expertise from the U.S. Coast Guard, the U.S. Maritime Administration, the Department of the Treasury, and the Department of Justice, among others.

On the international front, the United States joined 23 other countries in January 2009 to form the Contact Group on Piracy off the Coast of Somalia. In its first year, the Contact Group doubled in size to more than 50 countries and international organizations, including the African Union, the European Union, the Arab League, NATO, and several U.N. bodies, including the U.N. Secretariat, the U.N. Office of Drugs & Crime, INTERPOL, and the International Maritime Organization.

The Contact Group has made several positive contributions toward reducing the success rate of pirate attacks. One Working Group led by the United Kingdom has helped to create a 20-nation joint naval patrol in the Gulf of Aden. This international force has established an Internationally Recognized Transit Corridor, promoting safe passage for the 20,000-30,000 vessels crossing through the region each year. The success rate for pirate attacks on commercial vessels operating within this corridor has fallen to nearly zero.

Meanwhile, a U.S.-led Working Group has partnered closely with the International Maritime Organization and the shipping industry to develop and promulgate internationally recognized best management practices that vessels can take to deter or delay would-be attackers. A third Working Group – led by Egypt – is dedicated to communications and public outreach on piracy issues in Somalia and the surrounding region in an effort to convince area residents that they should not support or engage in piracy.

But progress made by this unique international partnership in reducing the overall success rate of pirate attacks must not obscure the continuing challenges of enhancing our ability to bring pirates to justice. Another Working Group, led by Denmark, is focused on this difficult undertaking. The work of this group is undoubtedly of the most immediate interest to those of us here for today’s symposium.

The United States is among many countries actively engaged in this group’s effort to enhance our collective ability to prosecute piracy cases.

Unfortunately, at this moment in time, that ability appears to be quite limited.

For our part, the United States has been true to its historical maritime tradition by continuing to emphasize prosecution of suspected pirates. The Department of Justice is currently prosecuting the surviving suspect from the Maersk Alabama incident in the U.S. District Court for the Southern District of New York. But piracy is not a challenge that the United States can solve by itself. We believe that there are many more states in the world capable of prosecuting pirates, including in the immediate region where acts of piracy are occurring. In our view, prosecution in the region wherever feasible has significant benefits, compared to carrying out prosecutions thousands of miles away from the scene of the crime.

Some countries are already carrying a significant burden. We recognize and appreciate the contributions of Kenya and the Seychelles, which have stepped forward to offer themselves as regional prosecution venues. The international community has contributed large amounts of capacity building assistance to Kenya and more recently to Seychelles to support their efforts to prosecute and incarcerate suspected pirates, apprehended by their own coast guards or transferred there by international naval forces.

A U.S. Department of Justice attorney serves as Resident Legal Adviser at the U.S. Embassy in Nairobi and supports Kenya’s ongoing efforts to prosecute suspected pirates captured by U.S. forces. The United States has also sent nine military service members to Kenya so far to provide testimony in these prosecutions. We also help to fund the efforts of the UN Office of Drugs & Crime to support Kenya, the Seychelles, and other states in the region with the prosecution and incarceration of pirates.

The UN Office of Drugs & Crime (UNODC) has a very active and successful program, supported by donors interested in delivering judicial consequences to pirates. Kenya and Seychelles are receiving large amounts of assistance through this UNODC program for their police, prosecutors, courts and prisons. The United States and other donors are enhancing these states’ ability to combat piracy, and this is happening in the larger context of our “rule of law” assistance to states throughout Africa, which will help to develop their judicial systems in ways that will serve their citizens well in the years to come.

But capacity building in the region is more than just enacting laws and training prosecutors. It is also a need for the infrastructure and logistical support necessary to any effective criminal justice system - buildings, equipment, materials and vehicles to support piracy prosecutions.

One innovative capacity building solution recently established by the Contact Group is a UN Trust Fund to help defray the expenses of pirate prosecutions in regional or other courts. The fund was specifically created in such a way that the commercial shipping industry - as well as states or other interested parties - can provide financial support for the prosecution of suspected pirates.

Judicial capacity building in the region is a means to prosecute pirates, but also has longer-term benefits for the broader judicial systems in these countries. This is simultaneously an effort to effectively prosecute pirates, and therefore deter future acts of piracy, and to make a positive contribution toward strengthening the rule of law in the region.

Courts in Kenya and the Seychelles are currently prosecuting more than a dozen cases between them, and we hope they will continue to do so. But at the end of the day, two countries are not enough. Kenya and Seychelles simply do not have the capacity to handle all of the potential suspects that are apprehended. For reasons of both fairness and pragmatism, the burden currently shouldered by these countries must be shared more broadly both within and beyond the piracy-affected region.

We cannot ask just a few states in one region of the world to bear the burden of holding, prosecuting and incarcerating pirates. The cost of this crime is borne globally. The cost of combating and defeating it should likewise be borne by many states in all corners of the world.

In the coming months, we will be engaging actively with our Contact Group partners on the way forward to meet these and other challenges. We are also thinking about creative ways to maximize the effectiveness of prosecutions and to send a stronger message of deterrence to would-be pirates. Strengthening the evidence gathering process through the use of biometrics might be an option, allowing for more effective tracking of individuals previously stopped by naval forces for suspicious maritime activities. Another route might be a more selective pursuit of prosecutions, trying only the most senior pirate leaders among a crew of suspects.

And while we will continue to pursue the 21st Century solutions that Secretary Clinton has spoken about, we will also look to the past for ideas. For instance, the Danish-led working group is actively considering how to enhance the ability of states to prosecute attempt or conspiracy to commit piracy – those cases where we do not capture the suspects in the act of attempting to pirate a vessel but do encounter them laying in wait for their next victim ship with all the trappings of would-be pirates.

One way to do this might be to infer the intent to commit an act of piracy from the possession of piracy-related equipment and the circumstances in which the suspects are encountered. In the 19th Century, states interested in combating the slave trade agreed that vessels found carrying specific “articles of equipment” used for the slave trade, such as shackles and handcuffs, could be declared evidence of a ship’s employment in the slave trade and, unless satisfactorily accounted for by the owner or master, could provide the necessary grounds for condemnation of the ship.

If we were to proceed by analogy in the present piracy context, perhaps states could agree that the mere possession of certain ladders, grappling hooks, and certain armaments at sea in an area known to be a high risk area for piracy attacks should be sufficient to establish intent to commit an act of piracy.

To the extent we are able to enhance our ability to prosecute attempt or conspiracy offenses, we will need more capacity to prosecute these cases, which brings us back to the need to develop judicial capacity in the region and identify more states willing to prosecute suspected pirates. We undoubtedly will need to identify additional venues in the region. But as I said earlier, piracy has global consequences, and we should not limit ourselves geographically when looking for venues for prosecution. The United States and European Union member states may need to favorably consider accepting more piracy cases for prosecution in their national courts.

In closing, combating piracy must be a collaborative effort that leverages not only our military strength and diplomatic engagement, but also the experience of the shipping industry, as well as a focused effort to bring pirates to justice. Under the Contact Group framework, each nation can choose its contributions in this collective effort, be they naval assets, prosecuting suspected pirates or incarcerating convicted pirates, contributing to the new international trust fund, a combination of the above, or something completely different. A lot of work remains ahead, but so far, we are making solid progress against a shared security challenge.

Thank you again for your time this afternoon. I wish you a successful and interesting afternoon of discussion, and I look forward to your questions.

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