2 tacks to combat piracy

Year's end finds 2 countries setting different courses to combat the recent spate of pirate attacks in the Gulf of Aden off the coast of Somalia.
In the United States, just before Thanksgiving, a federal jury in Virginia returned convictions for piracy and other offenses against 4 Somali defendants. (credit for detail from 2010 courtroom sketch by Alba Bragoli/AP) The verdict came one month after the judge in the case, United States v. Hasan, sustained a charge brought under 18 U.S.C. § 1651. The statute provides, in language dating to 1819:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Yet in the same courthouse a few months earlier, a different federal judge, in the case of United States v. Said, had dismissed a piracy charge brought against 6 other Somali men. Tripping the latter judge up was Congress' reference in § 1651 to "the law of nations."

The opposite rulings reflect uncertainties about whether an old legal framework presents the proper way to proceed against 21st C. pirates. It's a puzzle addressed in this discussion by our OJ colleagues, and in many IntLawGrrls posts available here.

In the United States, the discrepancy next awaits consideration by the Virginia-based Court of Appeals for the 4th Circuit.

France, meanwhile, has taken another tack.

France also has been involved in policing piracy in the Gulf of Aden. (credit for March 2010 of French naval vessel, with "Somali pirate skiffs" in foreground) France also has found that its old laws fell short -- and so it's opted for a legislative fix.

Shortly before Christmas, the Sénat voted unanimously in favor of the Loi de lutte contre la piraterie et d'exercice des pouvoirs de police de l'Etat en mer -- a bill to ease the pursuit and punishment of pirates that the legislature's lower house already had approved.

Key components:

► An 1825 French antipiracy law having been abrogated in 2007, the newly adopted law reintroduces into the penal code the crime of piracy -- a crime may be pursued via universal jurisdiction. The new law applies to acts of piracy "within the meaning of" the 1982 U.N. Convention on the Law of the Sea, "committed ... on the high seas," "in maritime spaces outside any state's jurisdiction," and "when international law permits, in a state's territorial waters." That Convention is an artifact of the law of nations to which France has been a state party since 1996, but to which, as posted, the United States does not belong.

► The new statute further establishes a legal regime for detaining suspects onboard French naval vessels while they are being transported to judicial authorities. These Mesures prises à l'encontre des personnes à bord des navires respond to a March 2010 judgment, Affaire Medvedyev et Autres c. France, in which the European Court of Human Rights held that France had violated the guarantee of liberty and security of person in Article 5 of Europe's human rights convention by its high-seas detention in 2002 of members of a ship's crew who were suspected of trafficking in drugs.

(Deep thanks for invaluable assistance with this post to University of California-Davis LL.M. student Johann Morri, on leave this year from his post as a French administrative law judge.)

Gender Crimes and Canada's Genocide Prosecutions

(Delighted to welcome guest Heather Goodman, who contributes this post in tandem with IntLawGrrl Valerie Oosterveld)

On Friday, Jacques Mungwarere, an Ontario resident who immigrated several years after the 1994 genocide in his native Rwanda, appeared in a Canadian court in connection with 4 counts, arising out of events in the Kibuye region, levied against him in June: 2 charges of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); and 2 charges of crimes against humanity (intentional murder and sexual violence). Mungwarere, who appeared before the Ontario Superior Court in Ottawa (logo at left), is the 2d person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. Passed in 2000, the Act permits the national prosecution of genocide, crimes against humanity, and war crimes under the doctrine of universal jurisdiction. (The website of the Canadian Centre for International Justice provides more details on the case.)
The first person to have been charged is Désiré Munyaneza (below right), a Rwandan who had been living in Toronto before his arrest on October 19, 2005. (photo credit) Authorities charged him, under the 2000 Canadian Act, with 7 seven counts stemming from events in the Butare region of Rwanda: 2 counts of genocide (intentional murder and causing serious bodily or mental harm to Tutsis); 2 counts of crimes against humanity (intentional murder and sexual violence); and 3 counts of war crimes (intentional murder, sexual violence and pillaging).
Munyaneza’s trial officially began on March 27, 2007, in Montreal, though it had been preceded by a rogatory commission in Kigali, Rwanda, during which Justice André Denis of Quebec Superior Court heard the first 14 prosecution witnesses -- witnesses unable to travel to Canada. At trial proceedings in Montreal, the prosecution called an additional 16 prosecution witnesses, for a total of 30. The accused called 36 witnesses in total. A dozen were heard by the court in Montreal; the remainder, by rogatory commission: 3 in Paris, 7 in Kigali, and 14 in Dar es Salaam, Tanzania.
On May 22, 2009, as then posted, Justice Denis issued a judgment of conviction on all counts. That same year, on October 29, Munyaneza was sentenced to life in prison, with no chance of parole for 25 years. His case is currently on appeal.
The Munyaneza judgment is important for the overall development of Canadian law under the Crimes Against Humanity and War Crimes Act. More specifically, we believe that it is also significant as an example of a gender-sensitive domestic universal jurisdiction prosecution.

Throughout the Munyaneza judgment, countless examples of gender-based crimes are evident:

► For example, expert witness Dr. Rony Zachariah told the court about his pregnant colleague, a Hutu woman. She was killed because her husband was Tutsi, and therefore, “the child she was carrying … would be Tutsi” (para. 456).
► Several witnesses recounted a difference in treatment between male and female victims. Witness C-19 stated that “Minister Pauline gave instructions to kill the men and rape the women,” and that Munyaneza was particularly zealous in following these instructions, making the men undress before taking them away to be killed (para. 687). Witnesses C-16, C-17, and C-24 observed that the men were taken away and never seen again, while the women were raped (paras. 636, 655 and 834). Witnesses C-15, C-19 and C-23 recalled the treatment of Tutsi women as though they were property (paras. 620, 689 and 801). Witness C-22 stated that members of the Interahamwe militia “raped a girl on the prefecture grounds in front of everyone” (para. 768). Witness C-15 stated that about ten men raped her, and that “they wanted to see whether Tutsi women were better than others” (para. 617).
► Witnesses also recited instances of sexual captivity. Witness C-15, who was 17 years old in 1994, recounts how she and two other Tutsi girls were kept in sexual captivity for three days, where they were repeatedly raped (paras. 615, 619). Witness C-20 observed that women would be taken away by soldiers and the Interahamwe to be raped, and some did not return for two days (para. 704). Witness C-23 provided similar testimony, stressing that Interahamwe especially liked to take away very young girls for an evening or for days, and that Munyaneza took part in this violence (para. 800).
A militia member took witness C-21 to the house of Munyaneza’s father, Isaac Munyagasheke. Witness C-21 testified that Munyagasheke paid 20,000 Rwandan francs for her life, and she stayed at his house until the RPF took the city. She also told the court that, while at the house, she was raped five times by Munyaneza, who was armed and threatened to hand her over to the Interahamwe, who would kill her. C-21 felt unable to leave because she had nowhere safe to go (paras. 727-741). At one point, Munyaneza told C-21 that “he had kept her alive to show what a beautiful Tutsi was like, since she was the last” (para. 736).

In his May 22 judgment, Justice Denis defined the prohibited genocidal act of causing serious bodily or mental harm to include “rape, sexual violence, mutilation and interrogation accompanied by blows or threats” as well as “[s]ubjecting a person to intense fear, terror, intimidation or threats” (paras. 88-89). He relied in particular on the judgment of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu in the course of defining the term “sexual violence” as any act of a sexual nature which is committed on a person under circumstances which are coercive (para. 95). Denis provided examples of such sexual violence: forcing a person to undress in public; sexual penetration; rape; and sexual molestation (para. 96). He adopted the same approach with regard to the crimes against humanity and war crimes counts (paras. 121 and 142). When considering the war crimes charges, Denis also held that an act of sexual violence is part of “inhumane acts”, “outrages upon personal dignity”, and “serious bodily or mental harm” as regards the victim (para. 141).
In an article entitled "Canada’s Crimes against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case", published this year in the Journal of International Criminal Justice, Professor Fannie Lafontaine (left), of the Faculty of Law at the University of Laval in Quebec, noted that Justice Denis' judgment did not define the term “rape”, despite the fact that his factual findings often referred to rape. In Canadian law, the crime of rape was replaced by the broader term “sexual assault” in 1983. As Lafontaine points out, since the Crimes Against Humanity and War Crimes Act defines Canadian law by reference to international criminal law, and since international criminal law does recognize the specific crime of rape, the crime of rape is again part of Canadian law, at least for the purposes of this statute. She argued that Justice Denis should therefore have defined the term “rape”.

For us, LaFontaine’s observation raises the very interesting question of how the Crimes Against Humanity and War Crimes Act should address such differences between international criminal law and Canadian criminal law -- especially differences that, many would argue, put Canadian law in a more progressive stance than international criminal law.

Turning tables, Latin America sues Spain

Survivors of persons who perished during dictatorship are pressing Argentinian judges to investigate allegations of international offenses in Spain.
Filing the complaint yesterday were Buenos Aires residents Darío Rivas Cando (center) and Inés García Holgado (near right). (credit for photo of press conference, also depicting, at far right, Nora Cortiñas, head of the Madres de Plaza de Mayo)
Their suit marks the 1st request in Latin America for "the exercise of the principle of universal jurisdiction" over "genocide and/or crimes against humanity." (Page 2 of complaint in Spanish, available in pdf here.) It asks for an investigation extending from 1936 to 1977 -- the entire era in which General Francisco Franco (prior posts) ruled Spain, an era during which tens of thousands were killed.
Spain, of course, has been the locus for criminal proceedings against perpetrators of torture and other crimes committed under military rule in Argentina and Chile. This suit thus turns tables.
It also affords support for the Spanish judge who initiated the investigations related to Latin America, Baltasar Garzón (left). He's been under attack in his own country: he himself is under criminal indictment for his decision to investigate crimes of the Franco era in spite of a national amnesty issued in 1977.
Efforts to continue to shield alleged perpetrators in Spain seem likely to add strength to the Argentine complainants' argument that their own national courts must enforce accountability.

French courts, international crimes

Le Tribunal de Grande Instance de Paris (left), the criminal court in France's capital, soon may adjudicate charges of international offenses.
In a joint op-ed appearing in Le Monde, Foreign Minister Bernard Kouchner and Justice Minister Michèle Alliot-Marie (below right) announced that in the 2010 courts bill the legislature will be asked to give to the Paris court competence to hear cases involving allegations of genocide and crimes against humanity. As quoted by Agence France-Presse, the 2 ministers wrote, in a reference to the complementarity principle at the heart of the International Criminal Court structure:

'Il ne s'agit pas de mettre en place la compétence universelle mais de faire valoir les principes du droit international au sein de juridictions nationales dans le respect du traité de Rome de 1998.'

That is:

'It's not a matter of establishing universal jurisdiction but rather of giving force to the international law principles applicable to national court systems by dint of the 1998 Rome Statute.'

(courtroom photo credit; Alliot-Marie photo credit)

In Spain, jurisdiction won't be truly universal

(Thanks to IntLawGrrls for giving me this opportunity to contribute this guest post and my transnational foremother dedication.)

The bill that would restrict universal jurisdiction in Spain, about which IntLawGrrls have posted here and here, constitutes an important setback in the Spanish contribution to the fight against impunity.
Why the setback?

A number of factors that have paved the way for the reform of Spanish legislation:

► The concerns of some about the ongoing dozen cases being investigated by Spain's Audiencia Nacional, cases through which it plays a role as, effectively, a universal court;

► Political pressure from states like China and Israel; and

► The path taken by the European Union to come to terms with the African Union, as reflected in the April 2009 AU-EU Expert Report on the Principle of Universal Jurisdiction -- about these regional organizations' respective understandings on the principle of universal jurisdiction.

This bill (text in English here) would move away from the “pure” universal jurisdiction allowed in Spain's current law, codified at Articles 23 and 24 of Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial. As IntLawGrrl guest/alumna Pamela Merchant has noted, the proposed legislation has many flaws. By way of example, it would introduce:

► Extremely demanding conditions -- even a reverse interpretation of the principle of complementarity that is a cornerstone of the Statute of the International Criminal Court.

► Limitations on the exercise of universal jurisdiction that resemble a doctrine repudiated by Spain's highest court. The limitations resemble the doctrine that Spain's Tribunal Supremo advanced in 2003, in an appeal against the Audiencia Nacional decision in the Guatemala Genocide Case mentioned in Merchant's post. By an 8-7 vote Spain's supreme court maintained in 2003 that only cases with a “legitimating connection,” such as the nationality of the victim or the presence of the offender, could proceed; moreover, the connection was said to have to be present in the principal charges, not just in related or ancillary charges against the defendant. But a higher court in Spain, the Tribunal Constitucional, annulled that ruling two years later. The constitutional court (left) held that the physical presence of the suspect is not required to initiate an investigation based on universal jurisdiction. It also held that territorial courts and an international court have priority over Spanish courts exercising universal jurisdiction; however, universal jurisdiction could be exercised by Spanish courts if a party to the case submitted demonstrated that courts in the territorial state were unwilling or unable to investigate and prosecute effectively the crimes alleged in the complaint. Thus it established that the law did not require the showing of a link between the prosecution of a universal jurisdiction crime and Spain's national interest; indeed, the Tribunal Constitucional considered requirement of such a link to be "contrary to the spirit" of the principle of universal jurisdiction. (photo credit)

It is one thing is to limit abuse and subject the exercise of universal jurisdiction to reasonable limits, such as those envisaged in the Princeton Principles on Universal Jurisdiction (2001) or in some of the provisions of the Krakow Resolution on "universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes," adopted in 2005 by the Institut de Droit International. But it is very different thing to adopt limitations so far-reaching that the defeat the purpose of the principle of universal jurisdiction.

As Lloyd Axworthy, formerly Canada's Foreign Minister and now President and Vice Chancellor of the University of Winnipeg, put it in this 2006 essay:

The application of universal jurisdiction does not entail a diminution of state sovereignty but rather the enforcement of a collective and fundamental system of criminal justice.

An end to universal jurisdiction?

(Thanks to IntLawGrrls for giving me this opportunity to contribute another guest post.)

El Congreso de los Disputados (left), Spain's lower house of Parliament, has passed a bill that would limit the reach of universal jurisdiction and profoundly restrict Spain's ability to prosecute serious human rights crimes. (The legislative push was mentioned in this prior IntLawGrrls post.) The bill, available in English translation here, will go before the Spanish Senate for a final vote in the fall.

As is well known, the Spanish universal jurisdiction law was used to pursue former Chilean dictator Augusto Pinochet in 1998. Since then, the law has allowed Spanish courts to stand as a last resort for victims who cannot find justice at home:

► Using this law, Spanish courts have issued warrants for top Rwandan leaders and convicted an Argentine official for "dirty war" killings.

► The law also forms the basis for the Guatemala Genocide Case and the 1989 Jesuits Massacre Case in El Salvador, both now being litigated by the Center for Justice & Accountability, the San Francisco-based nongovernmental organization for which I am Executive Director.

As detailed here, the bill is flawed, yet there may well be constructive means by which the Spanish legislature can clarify the application of the universal jurisdiction law. For instance, the proposed bill correctly adds crimes against humanity to the list of admissible crimes. But the amendment will do nothing to streamline the legal process or to weed out spurious claims from the many legitimate human rights cases that have been brought. Worse still, this amendment may close the doors of Spanish justice to thousands of survivors of human rights abuses. This bill should not become law.

We'll continue to work with the Asociación Pro Derechos Humanos de España, and other partners around the world, to oppose this legislation as it stands and to seek reforms that will protect this powerful tool for human rights.

Conspiracy to Commit Torture

Within and without the U.S. government, debate continues about whether there should be legal accountability for the United States’ detainee policies, especially where those policies amounted to a license to torture and otherwise mistreat individuals in U.S. custody. (Prior IntLawGrrls posts on this issue may be found here.) Although little serious debate now occurs about whether particular techniques, such as waterboarding, constitute torture, questions remain as to the theories of penal responsibility that might be employed to reach senior levels of the Bush Administration.

Folks interested in this issue would do well to revisit the case law under the operative statute, the so-called Torture Act, 18 U.S.C. § 2340, which was enacted upon the United States’ ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

One does not have far to go.

To date, the only case to proceed under that statute is that against Charles “Chuckie” Taylor, Jr. aka Charles Emmanuel (left), the son of ex-President Charles Taylor of Liberia and a presumptive U.S. citizen who was apprehended at the Miami airport on passport fraud charges. (See posts here). He was later indicted by a grand jury for torture, conspiracy to commit torture and carrying or using firearms in connection with a felony (an enhancement statute, 18 U.S.C. § 924). The most important opinion generated during the case is here: United States v. Charles Emmanuel, 2007 U.S. Dist. LEXIS 48510 (S.D. Fl. July 5, 2007) (upholding constitutionality of the federal torture statute).

An oft-overlooked aspect of the Torture Act is that it criminalizes not only the commission and attempted commission of acts of torture, but also the conspiracy to commit torture:

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

This provision does not find a direct parallel in the Torture Convention, which at Article 4 directs state parties to enact penal legislation as follows:

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

The lack of specific mention of conspiracy liability in the treaty is not surprising given that many nations, especially those of the civil law tradition, either reject conspiracy liability outright or utilize more limited notions of conspiracy (in some cases limiting conspiracy liability to crimes against the state, such as sedition).

With representation from the Federal Public Defender, Taylor fils challenged the indictment against him, arguing inter alia that:

► Congress exceeded its authority in enacting the Torture Act, because the definition of torture does not precisely match the treaty definition, as torture can be prosecuted even where the pain and suffering are not inflicted for the purposes of intimidation, coercion, or for obtaining a confession as is stated in the treaty;

► Congress did not intend the Torture Act to apply extraterritorially;

► His prosecution violated the principle of sovereign immunity;

► The statute is void for vagueness, especially in light of contradictory memoranda emerging from the Department of Justice (the 2002 Bybee memo and the 2004 Levin memo superseding the Bybee memo) on the definition of torture; and

► The prosecution lacked a sufficiently nexus to the U.S. in violation of his 5th A due process rights.

The court disposed of these arguments with ease:

► Congress had the authority, and indeed was obligated, to enact the Torture Act in light of the U.S. ratification of the Convention Against Torture, which requires implementing legislation. Congress does not exceed its authority under the Necessary and Proper Clause of Article I of the Constitution when it does not enact treaty language verbatim, so long as the statutory language

bears a rational relationship to the stated objectives of the Convention.

Id. at *24. In any case, the court noted, the Offenses Against the Law of Nations Clause of Article I would also provide the necessary authority. Id. at *25-28.

► The statute applies extraterritorially by its express terms, which reach torture committed “outside the U.S.” Id. at *32-33. Furthermore, the court held that because the substantive statutory provision targets extraterritorial conduct, so too does the conspiracy provision. Id. at *33 (iting United States v. Layton (9th Cir. 1988), overruled on other grounds, Guam v. Ignacio (9th Cir. 1993)).

► On the sovereign immunity argument, the court ruled that the Foreign Sovereign Immunities Act does not apply to criminal actions, per binding 11th Circuit authority in the Noriega case. Id. at *40.

► On vagueness, the court held that the allegations in the indictment, coupled with the specific intent statutory language, sufficiently advised the ordinary person of the prohibited conduct. Id. at *43-45.

► On the due process challenge, the court ruled that the defendant’s presumptive U.S. citizenship (he was born in Boston) was a sufficient nexus to justify the application of the statute against him even for extraterritorial acts with no other connection to the United States. Id. at *45-*47. The Taylor case thus involved the nationality principle of jurisdiction rather than universal jurisdiction per se. The court specifically reserved the question of whether Taylor's mere attempt to enter the United States would have been a sufficient nexus for due process purposes, leaving open the question of whether the U.S. can constitutionally exercise "pure" universal jurisdiction. Id. at *47-48 n.12.

In October 2008, as we posted, a jury convicted Taylor of conspiracy, torture, and the possession of firearms during the commission of same and sentenced him to 97 years’ imprisonment.

It remains to be seen whether Taylor pere will follow in the footsteps of his son.

Across the pond, the Special Court for Sierra Leone recently rejected Charles Taylor Sr.'s Motion for Judgment of Acquittal.

Garzón goes for it

Losing jurisdiction over a civil-party complaint against 6 U.S. lawyers by the spin of a judges’ wheel in no way deterred Judge Baltasar Garzón (left) from investigating Bush Administration detention and interrogation practices.
In an auto made public this week, the Spanish judge opened an investigation into allegations of torture, made by 4 ex-detainees, over whose cases he had jurisdiction for the reason that they once were charged in Spain with criminal activity in support of al Qaeda. The 4, Garzón wrote,

claimed that they had suffered different acts of physical or psychological violence during the time of their detention in different countries, while they were under the authority of U.S. officials.

Sites named in the auto: Pakistan, Gambia, Afghanistan's Bagram Prison, and the U.S. military base at Guantánamo Bay, Cuba.
A small sampling of the acts alleged by the 4, according to the auto:
► sleep deprivation and harm to vision, both caused by cells lighted all day and all night;
► constant broadcasting of "patriotic American songs" and other loud music;
► blows to the testicles and to the head;
► forced nudity;
► introduction of water into the nostrils to the point of a sensation of suffocation;
► subjection to extreme heat or extreme cold;
► protracted confinement in a dark, underground place;
► deprivation of food;
► death threats; and
► sexual assault.
Among the legal bases for the investigation the auto cites are the Spanish penal code, the 3d Geneva Convention, and the international Convention Against Torture and its European counterpart.

It's worth noting that the new case is broader than likely would have been authorized under the civil-party complaint. Whereas the latter named 6 Bush Administration lawyers, Garzón's auto makes clear that "intellectual authors" as well as "material implementers" of abuse, those who "authorized" abuse as well as those who "practiced" it, are fair game for his investigation. And if the Spanish court were to secure the presence of any suspect -- a big if -- personal jurisdiction would lie not only on ground of universality, but also that of passive personality. That's because among the 4 alleged victims are 2 nationals: a Spanish citizen and a Moroccan long resident in Spain.

The sweep of this new case ought not to surprise.

Garzón, of course, is the Madrid-based investigating judge whose name has been a human-rights-household word ever since October 1998, when Garzón asked Britain to arrest former Chilean dictator Augusto Pinochet and then extradite him to Spain to face charges that he was responsible for torture of some Spaniards and many Chileans during his rule. Eventually, in January 2000, Britain’s executive refused to extradite notwithstanding a House of Lords ruling authorizing the transfer.
What had taken place in between – as Garzón described at a Stanford Law panel in which IntLawGrrls Naomi Roht-Arriaza and yours truly took part a while back – was an elaborate game of legal cat and mouse. Spain’s executive, which opposed the pursuit of Pinochet, did little to help Garzón as he went forward. At times Garzón enlisted the language skills of family members in order to secure translations of documents that had been delivered to him in English.

The cat and mouse game may resume, given that Spain's Attorney General has publicly opposed investigation by his country's judiciary of the United States' executive officials.

What might be the endgame?

It is true that Pinochet never did appear before a Spanish judge. But it's also true that when Pinochet went home he found that he was disgraced. By the time Pinochet died in 2006, lawsuits abounded against him. Chilean courts had stripped him of immunity. And he had twice endured questioning by an investigating judge -- not Garzón but Juan Guzmán (below left), a Chilean who sought to link him to some of the same crimes once at issue in Spain.
A full account of the facts of Pinochet likely will give cold comfort to the objects of Garzón’s newest investigation.

The Return of Piracy

My seven-year-old has become an avid reader of the New York Times. His inspiration? Piracy off the coast of Somalia.

We’ve all heard by now about the dramatic and almost unbelievable rescue of Captain Richard Phillips by Navy SEALs (choppy waters, night vision, three shots, three pirates down—it is the stuff of Hollywood). The United States has indicated that it will prosecute the one captured pirate in a U.S. court for the crimes of hostage taking and/or piracy.

Piracy is one of the oldest international crimes, and its international prohibition in many respects gave rise to the principle of universal jurisdiction. The concept that all states could prosecute the pirate was embodied in the 1958 Convention on the High Seas and its successor, the 1982 U.N. Convention in the Law of the Sea (UNCLOS) (affectionately called “a constitution for the oceans”), which defines piracy at Article 101 as a phenomenon of the high seas:

Piracy consists of any of the following acts:

(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 of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

According to this definition, acts of violence or depredation that occur within a state’s territorial or internal waters are considered acts of armed robbery at sea within the territory of the littoral state rather than as piracy per se.

Both treaties also codified the customary principle of universal jurisdiction. Article 105 of UNCLOS reads:

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of 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 also 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.

The phenomenon of piracy in the Gulf of Aden has sparked considerable and escalating U.N. Security Council activity. On June 2, 2008, the Council adopted Resolution 1816 under Chapter VII of the UN Charter, which—in characteristic diplo-speak—expressed grave concern about the threats posed by acts of piracy to humanitarian aid and commercial shipping and deplored recent attacks. It urged states interested in commercial maritime routes off the coast of Somalia to increase and coordinate their efforts to deter piracy in cooperation with the Transitional Federal Government of Somalia, the internationally recognized government of Somalia (such as it is) and the 14th attempt to create a functioning government since the fall of the Siad Barre regime in 1991. Most significantly, for a period of six months from the date of the resolution, the resolution permitted states cooperating with the TFG to enter Somali territorial waters to suppress acts of piracy (art. 7(a)) in a fashion that exceeds the traditional doctrine of hot pursuit (see Art. 111 of UNCLOS). States are also encouraged to cooperate in determining jurisdiction for the prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia.

Subsequently, S.C. Resolution 1838 called upon states whose naval vessels and military aircraft operated in the region to use

the necessary means, in conformity with international law, … for the repression of piracy.

Resolution 1846 extended Resolution 1816 and also tied acts of piracy to the terrorism multilateral treaty regime by invoking the 1988 Convention for the Suppression f Unlawful Acts Against the Safety of Maritime Navigation (SUA), promulgated in the wake of the Achille Lauro hijacking by the Palestine Liberation Front. Pursuant to Article 3, a person commits a breach of that that treaty if s/he:

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or

(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or …

(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).

That treaty embodies territorial (including flagship), nationality (both active and passive), and custodial jurisdiction.

Finally, S.C. Resolution 1851 extended the authority of states cooperating in the fight against piracy on land as well as sea, enabling states to

undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea … provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law.

All the Security Council resolutions emphasized that their authorizations are limited to the situation in Somalia and should not be considered as establishing customary international law. In the debates surrounding these resolutions, several states emphasized that the phenomenon of piracy could not be divorced from the humanitarian and political crisis within Somalia. They also noted that piracy is not just a problem for flag ships & private industry; 3.5 million people in Somalia are dependent on food aid, and the World Food Program’s maritime deliveries have been impacted by piracy.

Traditionally, the anti-piracy policy of the international community was one of deterrence rather than prosecution. Captured pirates were simply released, and private companies (or their insurance companies) would pay the necessary ransoms as a cost of doing business. As pirate attacks and ransom requests increase exponentially, however, states (including France, the Netherlands, and Kenya) are beginning to prosecute offenders. (The U.K. has so far refused to bring pirates to its territory out of fear they will raise asylum or non-refoulement claims).

Under U.S. law, pirates can be prosecuted under 18 U.S.C. § 1651, which provides that

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

The Supreme Court determined that Congress constitutionally enacted the predecessor of this provision under its power

to define and punish piracies and felonies committed on the high seas, and offenses against law of nations.

U.S. Const., Art. I, § 8, cl. 10. See U.S. v. Smith, 18 U.S.C. 153 (1820). Subsequent sections of Title 18 set forth further refinements to this crime (e.g., arming of privateers, confederating with pirates, plunder of a distressed vessel, the receipt of pirated goods, etc.).

Pirates can also potentially be prosecuted for

• acts of terrorism (18 U.S.C. § 2332b et seq.),
• violence against maritime navigation (18 U.S.C. § 2280)
• hostage-taking (18 U.S.C. § 1203) or
• interfering with commerce by threats or violence (18 U.S.C. § 1951).

Unlike the piracy statute, these other statutes often require some nexus to the United States (e.g., the hostage was a U.S. citizen, the organization sought to be compelled is the U.S. government, or the goods were in transit from or to the U.S.).

Go On! Future of International Criminal Justice

(Go On! is an occasional item on symposia of interest) On March 13-14, Santa Clara University School of Law will host a symposium and experts' round table to discuss "The Future of International Criminal Law." The event is free and is co-sponsored by the American Society of International Law and its ASIL-West contingent.
The symposium will featured panels on:
► The International Crimes of Terrorism;
► Complementarity and the International Criminal Court;
► Universal Jurisdiction; and
► Systemic Criminality.
It will conclude with a roundtable discussion in which panelists will explore how the international legal system may better achieve the goals of international criminal law.
Professor M. Cherif Bassiouni (right) will provide the keynote address. The symposium will feature several Int'l Law Grrls members, alumnae, and visitors, including Naomi Norberg, Luz Estella Nagle (left), and Jenny Martinez (below right). Additional participants include Linda Carter, Jordan Paust, Payam Ahkavan, Steve Vladeck, Michael Scharf, Wolfgang Kaleck, Laura Dickinson, Jamie Mayerfeld, Allison Danner, Dapo Akande, Mark Drumbl, Andre Nollkaemper, Julian Ku, Allen S. Weiner and Almudena Bernabeu along with David Sloss and me from Santa Clara. Click here for a full schedule of events.
The symposium's theme is described below:

The international criminal proceedings held in Nuremberg and Tokyo following a global war of catastrophic proportions are credited with launching the modern regime of international criminal law. After a Cold War hiatus, the international community began to build upon this revolutionary postwar legacy in significant ways. Key events are the 1994 establishment of the first ad hoc criminal tribunal, the 1998 launch of a permanent International Criminal Court in The Hague; the 1998 arrest of General Augusto Pinochet of Chile [below left] in the United Kingdom in response to an arrest warrant from Spain for him to stand trial for torture, genocide, and other international crimes over which Spain asserts universal jurisdiction; and the 1999 indictment of President Slobodan Miloševic, the first against a sitting head of state.
Notwithstanding these important developments, progress toward a more comprehensive system of international justice has not been linear or continuous.
Rather, it has featured a number of oversteps and backslides that include the failure of international troops and domestic officials to arrest key indicted war criminals from the Yugoslav war; the in absentia indictment in Belgium of high-level political figures from powerful states, which resulted in an international backlash and a contrite amendment of Belgium’s universal jurisdiction law; the failure of the East Timor Special Panels to gain jurisdiction over any defendants of real consequence as a result of Indonesian obstructionism and international neglect; and the summary execution of Saddam Hussein [below right] after a controversial trial and while important charges remained pending against him. Most important, perhaps, the tragic events of September 11, 2001, led to the creation of "legal black holes" at Guantánamo and elsewhere where pure power for a time had all but eclipsed law.
It cannot be gainsaid that international criminal law has become a regular feature of international relations and part of the repertoire of any transitional government moving from a period of repression and state terror to one in which the rule of law can take root. At the same time, international criminal law is also invoked outside of conflict zones in states with transient custody over offenders, but scant other connection to the crimes in question. Even more controversially, states have attempted to assert jurisdiction over individuals who are not in their custody and who have never stepped foot on their territories. These expansive assertions of international and extraterritorial jurisdiction are not without their detractors. In these varied contexts, international actors do not resort to international criminal law in a vacuum. Rather, choosing to implement a regime of international criminal justice
is a political choice, among other available and competing political choices. As such, it is impossible to consider international criminal law without also invoking issues of state sovereignty, national security, and the exercise of power in international relations.
Given the centrality of institutions and processes of international criminal justice to contemporary public international law and international relations, this conference brings together leading academic and practitioners to discuss cutting edge issues associated with international criminal law and its enforcement. These topics include the controversial exercise of universal jurisdiction, the principle of complementarity before the International Criminal Court, responses to collective and systemic criminal behavior, and the contested crimes of terrorism. Our perspective is expressly forward looking in an effort to anticipate where the field is going in light of its current manifestations.

We welcome your contributions to our symposium and hope to see you there! Registration is helpful, so that we have enough food.

New to the Ranks of Female Defendants

We've blogged before (here and here and here) on the female defendants indicted by international, and hybrid, criminal tribunals. European states have also indicted several Rwandan women for genocide and crimes against humanity; for example, two nuns were accused in a Belgian indictment of complicity in genocide.
In the newest chapter of this story, German officials detained Rose Kabuye (above), Chief of Protocol for Paul Kagame, Rwanda's President. She was seized at the Frankfurt airport upon a French arrest warrant. Kabuye was a guerrilla within the Rwandan Patriotic Army (RPA), the military wing of the Tutsi-led Rwandan Patriotic Front, and as such is considered a national heroïne. (photo credit)
Apparently, the charges against her stem from the shooting down on April 6, 1994 of Juvenal Habyarimana's plane, which ignited the genocide in Rwanda. (The plane was shot down as President Habyarimana and Burundian President Cyprien Ntaryamira were returning from a meeting in Tanzania on the implementation of the Arusha Peace Accords. The identity and the precise motive of the assassins remain unknown. Many have long speculated that Hutu nationalists, angered that President Habyarimana had capitulated during the peace process, were responsible.)
It appears that Kabuye was visiting Germany in her private capacity, which opened the way for her arrest. News accounts indicate that Kabuye had been warned that she risked arrest when travelling in Europe.
Rwandan Minister of Information Louise Mushikiwabo (right, center) has stated that Kabuye’s arrest is a “misuse of international jurisdiction” and “a perversion of the principle of universal jurisdiction." The African Union (AU) has also said arrest warrants would not be recognised in AU countries.
Mushikiwabo’s statements are intriguing.
If I am not mistaken, Mushikiwabo was a plaintiff in a suit under the Alien Tort Statute against Jean-Bosco Barayagwiza, a leader in the Hutu-nationalist Coalition pour la Défense de la République party and a co-owner of the vitriolic Radio Télévision Libre des Milles Collines. (See here and here for profiles on Mushikiwabo). With others, she sued Barayagwiza in New York in 1994 and obtained a $35 million judgment against him in default (see 1996 WL 164496 (S.D.N.Y. Apr. 9, 1994). In an exercise of what many have deemed a form of civil universal jurisdiction, Mushikiwabo obtained “tag” personal jurisdiction over the defendant by serving him with process while he was in New York attending meetings at the United Nations and he strayed outside the U.N. headquarters zone.
Apparently, what is good for the gander is not so good for the goose? Kabuye has been flown to France to face the charges. Stay tuned!

Breaking News! Taylor (Chuckie) Convicted

CNN has just reported the conviction of Charles "Chuckie" Taylor, Jr. for torture and conspiracy to commit torture, the first conviction ever under the U.S. statute providing for universal jurisdiction over acts of torture. (The courtroom sketch at right is from the CNN blurb). The statute in question (18 U.S.C. sec. 2340) provides:

(a) Offense.— Whoever outside the United States commits or attempts to commit
torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—

(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

We've discussed the case before here. Now we know it can be done.

On July 29

On this day in ...

... 1968 (40 years ago today), media coverage focused on a new encyclical entitled Humanae Vitae, in which Pope Paul VI (right) rebuffed the recommendation of a majority of a Pontifical Commission, and thus "confirmed a ban on the use of contraceptives by Roman Catholics." Among the pope's "the most controversial" acts, it was reaffirmed in 1995 by a successor, John Paul II. This year's anniversary has stirred the issue again: among those commenting are "[m]ore than 50 dissident Catholic groups from around the world," which last week published, in an Italian newspaper, "an open letter asking Pope Benedict XVI to lift the church's ban on birth control." This group focused on HIV/AIDS as a reason for change; other commentators cited opposition among Catholic laypeople, sometimes by "majorities exceeding 80 percent," as well as links between overpopulation and global warming. Meanwhile, in the Philippines, Manila's archbishop supported the ban with this argument:

'If there is discipline in the marital bed, then there is discipline in the streets, there is discipline in schools, there is discipline in the government.'

... 1993 (15 years ago today), an Israeli appellate court overturned the conviction of John Demjanjuk. The court found insufficient evidence to support charges that Demjanjuk had committed war crimes as "Ivan the Terrible, a gas chamber operative at the death camp Treblinka, in Poland." Demjanjuk had been extradited to Israel by the United States. On his return, the United States undertook to deport him; however, no country has agreed to accept the Ukraine-born man, who'd immigrated to the United States in 1951. Earlier this month, a Spanish court announced that it would proceed with a war crimes action against Demjanjuk and 3 others. Initiator of the suit -- brought pursuant to the principle of universal jurisdiction -- was the NGO Equipo Nizkor. (credit for 1987 photo of Demjanjuk on trial in Israel)

Break from formalism opens path to conviction for crimes against humanity

Á propos of the post this week by Jaya Ramji-Nogales on the alacrity with which Spanish courts apply universal jurisdiction:
Check out this "Spanish Supreme Court Affirms Conviction of Argentine Naval Officer for Crimes Against Humanity." In this recent ASIL Insight our colleague, Richard J. Wilson, provides a detailed discussion of the November 2007 judgment affirming the conviction of Adolfo Scilingo, a former officer in the Navy of Argentina (flag above), for crimes against humanity stemming from his role "in murders and illegal detentions in Argentina." Wilson notes that the Criminal Chamber of the Supreme Court of Spain (flag below) overturned the lower court's convictions on 3 other grounds, torture, genocide, and terrorism. He adds that the decision, still available only in Spanish,

constitutes another chapter in the tangled history of efforts by Spanish courts to interpret domestic and international law to charge individuals who fall within Spanish universal jurisdiction law with extraterritorial crimes.

Other chapters include the Guatemala Genocide Case of 2005 (about which, as Wilson notes, IntLawGrrl Naomi Roht-Arriaza published a casenote at 100 American Journal of International Law 207 (2006)), actions against officials of China, and the litigation against Rwanda that was the subject of Jaya's post.
Still, the Scilingo decision is a landmark. Following examination of the post-Nuremberg status of the nullum crimen sine lege, or legality, principle (an issue about which IntLawGrrl Beth Van Schaack has posted here) Spain's Supreme Court did something that was not to be expected. In Wilson's words:

In the highly formalistic civil law tradition of Spain, it is quite extraordinary for the Supreme Court to find criminal responsibility for crimes against humanity in customary international law without a previously defined provision for that offense in the criminal code of Spain.