Monday, January 4, 2010
MMQ: Monday's Midday Question
Let's kick off the week, the month, the year and the decade with this question:
With Yemen basking/basting in the international media spotlight this week, we wonder are you surprised that Yemen's piracy rate isn't higher?
Next up: Yemen & Piracy (obviously)
Via The Onion: Blues Musician To U.N.: 'Yemen Done Me Wrong'
Sunday, April 26, 2009
The Curious Case of Ambrose Light
In 1885, a rebellion was underway in Columbia, with rebels holding the ports of Panama, Sabanilla, Santa Maria and Barranquilla, and U.S. Navy gunboat Alliance was searching the Caribbean Sea for a Columbian insurgent named Preston, who ordered an attack on the city of Colon, causing loss and injury to Americans. On April 24, twenty miles west of Cartagena, Alliance came upon the brigantine Ambrose Light, flying a strange flag featuring a red cross on a white field. After Alliance sent shots across Ambrose Light’s bows, the brigantine raised a Columbian flag. While Preston was not aboard, the prize crew discovered a cannon, ammunition and 60 armed soldiers below deck. The Ambrose Light had papers purporting to commission her as a Columbian man-of-war, which Commander Clarke of Alliance deemed irregular and reported her under seizure. Admiral Jouett, commander of the North Atlantic squadron, directed the vessel to be taken to New York for adjudication as prize.
Commander Clarke was proven correct in questioning Ambrose Light’s papers, as proofs showed that the ship belonged to Mr. Colente, a military leader of the insurgents at Barranquilla. The ship was assisting the rebels blockade and siege the port of Cartagena, held by the established government of the United States of Columbia, and her captain was instructed to fight any Columbian vessel not showing the white flag with the red cross.
U.S. v. The Ambrose Light was a property case (“a suit in rem for the condemnation of the vessel only”), dealing solely with the issue of whether the ship should be returned to Mr. Colente. Any criminal charges facing the captain and crew for acts of piracy were not matters addressed by this court.
The U.S. Attorney in this case was Elihu Root, who would soon go on to be a successful corporate lawyer, Secretary of War from 1899 to 1904 under Presidents McKinley and Roosevelt, Secretary of State during Roosevelt’s second term and, in the middle of his term as U.S. Senator from N.Y., Mr. Root would win the 1912 Nobel Peace Prize for bringing nations together via arbitration and cooperation. Mr. Root would go on to do all these things after losing this case.
Mr. Root argued that Ambrose Light should be forfeited as piratical under the law of nations as she was not sailing under the authority of an acknowledged power. Frank F. Vanderveer, attorney for the claimants, argued that “being actually belligerent, she was in no event piratical by the law of nations; but if so, that the subsequent recognition of belligerency by our government by implication entitles her to release”.
As Ambrose Light was owned by the Columbian rebel who signed her commission and none of her officers or crew were American, the question of whether her cruise was considered lawful warfare or piratical was determined by the law of nations. Judge Brown wrote “liability of the vessel to seizure, as piratical, turns wholly upon whether the insurgents had or had not obtained any previous recognition of belligerent rights, whether from their own government or from the political or executive department of any other nation; and that, in the absence of recognition by any government whatever, the tribunals of other nations must hold such expeditions as this to be technically piratical”.
Judge Brown embarked on an overview of international treatment of rebel blockades, commerce raiding and merchant shipping, spanning from the Revolutionary War to the present. After observing that neither Columbia nor any other government recognized the insurgents as belligerents, which allowed Ambrose Light to be lawfully seized, “as bound upon an expedition technically piratical”, Judge Brown then moved on to the issue of whether the ship should be condemned as a prize by establishing if the Columbia insurgent forces were a government de facto and thus entitled to belligerent rights, which would provide the rebels with the protection of international laws of armed conflict.
On April 9, the Columbian government sent a letter to U.S. Secretary of State Thomas Bayard notifying the U.S. that Columbia decreed the ports of Sabanilla and Santa Maria closed to foreign commerce and that rebel vessels operating against Cartagena were irregular and unlawful. Bayard replied on April 24 that “a decree by a sovereign power closing to neutral commerce ports held by its enemies, whether foreign or domestic, can have no international validity, and no extraterritorial effect in the direction of imposing any obligation upon the governments of neutral powers to recognize it” and that “vessels manned by parties in arms against the government, when passing to and from ports held by such insurgents, or even when attacking ports in possession of the Columbian government, are not pirates by the law of nations, and cannot be regarded as pirates by the United States”.
The claimants used this letter to establish that the rebels were entitled to belligerent rights. Recognition of belligerent rights may be express (i.e. made by a proclamation of neutrality), implied (i.e. a declaration of blockade (see the U.S. Supreme Court’s ruling in 1862’s Prize Cases)) or tacit (i.e. allowing use of your ports as a harbor for prizes). Judge Brown writes that the necessary implication of Sec. Bayard’s letter is “a recognition of the existing insurrection as constituting a state of civil war. It assumes that the Columbian government, as respects the ports in question, is a belligerent; that the insurgents hold these ports as a de facto power…that they are in arms against the latter government; and it is declared that our government will not recognize any attempt by the Columbian government to close these ports by virtue of its own sovereignty as lawful or valid; nor any closure, except by means of an effectual blockade, i.e., by acts of war. In saying that it would recognize no rights of the Columbian government at those ports, except belligerent rights, our government implies belligerent rights in those who hold those ports adversely”. As the U.S. could not assert that Columbia had no rights but belligerent rights and simultaneously deny belligerent rights to the party Columbia is fighting, Judge Brown concluded that the U.S. asserted by implication rebel de facto authority and the existence of a state of war.
The best example of this logic can be seen in how Confederate States of America Naval vessels were treated by European states during the Civil War (or, as Judge Brown referred to it, “the case of the late Confederate rebellion”). Despite neither the U.S. nor Europe recognizing the Confederate government, the U.S.’s blockade of southern ports created a state of war, with the Confederacy’s de facto power entitling it to belligerent rights. Accordingly, Confederate ships were not seized as piratical and were given access to neutral ports.
The distinction between acts of war and piracy is essentially determined by establishing whether there is a military purpose for the ship’s actions or if the ship is acting like a robber who happens to be at sea. Under the law of nations, piracy is depredation upon the high seas without authority from any sovereign power so long as the intended spoliation was felonious, which requires the act to be done willfully, with intent to injure and without legal authority or lawful excuse. As the Ambrose Light’s actions were within the scope authority lawfully granted her by a recognized belligerent, she did not commit any piratical acts.
Accordingly, Judge Brown ruled that the Ambrose Light was not a privateer, and discharged the vessel from custody upon payment of clerk’s, marshal’s and prize commissioner’s fees. Similarly, in the separate criminal case, the crew would be exonerated by a Federal court which, relying on the government’s implicit recognition of their status as belligerents, overturned a N.Y. state court’s verdict.
In dicta in the penultimate paragraph, Judge Brown suggests that the government would be wise to avoid irritating its allies in the future by neither expressing neutrality nor recognizing belligerency until some occasion makes it necessary. And finally, in addition to this case establishing a definition of piracy, U.S. v. The Ambrose Light can be appreciated if only for proving the retroactively ironic spectacle of losing counsel Elihu Root, who would later serve as Secretary of War in 1903 when U.S. gunboat diplomacy engineered Panama’s independence from Columbia, arguing that rebels in Panama are operating outside the bounds of international law
Summary
We come away from this case with 1) a definition of piracy and 2) an understanding of how insurgents are granted legal legitimacy:
1) Depredation upon the high seas without authority from any sovereign power is piracy by the law of nations so long as the intended spoliation was felonious, which requires the act to be done willfully, with intent to injure and without legal authority or lawful excuse.
2) Recognition of rebel belligerency by other governments grants insurgents with a quasi-sovereignty for war purposes, making them lawful combatants. Recognition may be express (i.e. by proclamation), implied by acts of war (such as a blockade) or tacit by acquiescence in the exercise of belligerent rights.
Wednesday, April 22, 2009
Papa Was a Blundering Stone: Father’s Confusion &/or Inept Obfuscation Results in Muse Being Charged as an Adult
An estimated 200 spectators squeezed into courtroom 5A, eventually necessitating an overflow room, for the start of the first major piracy trial in the U.S. since the 19th century. As no cameras were allowed in the courthouse, four late-middle-aged, pastel-and-charcoal wielding women set up in the front benches to sketch the scene using surprising divergent color schemes. Two Assistant U.S. Attorneys, an FBI agent and an NYPD officer were to the left of the crowd and Federal Public Defenders Phil Weinstein and Deirdre von Dornum were positioned across the aisle. To their right, in a blue prison jumpsuit too big by an order of magnitude, with his left hand swallowed by rolls of bandages covering a knife wound and airplane-style headphones hanging from his head which danged atop his gaunt 5’2 frame, sat the softly sobbing star of the proceedings.
At issue today was the question of whether Mr. Muse was at least 18 years old and could therefore be tried as an adult. Initially, upon being detained on a U.S. Navy vessel on April 12, Muse told a Somali interpreter that he was 16 years old, then 19 and then 26. The following day Muse claimed to be 19 and later told the FBI that he was 15, then apologized for lying and said he was really 18 going on 19. Muse’s brother told investigators he was 18 and Muse’s parents claimed he was 16. Muse himself did not testify in court.
Whatever parental merits Mr. Muse’s father, Abdilkadir Muse, may have were, sadly for his eldest, not in evidence during Abdilkadir’s testimony from Somalia via a Somali translator via phone in a closed hearing today. Magistrate Judge Andrew J. Peck, upon reopening the courtroom, explained that the father stated that the defendant, his firstborn, was born on November 20, 1993 and his second oldest was born around July 1997. When asked when his fourth child was born, Abdilkadir stated that he was not present for that birth which occurred in 1990. Peck, noting that it is unusual that a father knows the day his oldest was born, but only vaguely recalls the month his second-oldest was born and offered a birthday for his fourth child which is wildly inconsistent with the rest of the timeline, determined that the father was not credible. Relying on the FBI’s testimony, Peck determined the defendant was 18 and thus eligible to be tried as an adult.
Back from the Backburner
Wednesday, November 26, 2008
Mid-Week Round-Up
Phenomenally eventful two weeks, in which Somali pirates seized eight vessels. The latest on the big stories:
1)
Indian navy spokesman Commander Nirad Sinha on Wednesday conceding that it was possible the ship was hijacked, but defended the INS Tabar's action responding to pirates' threat to attack her and that "In so far as we are concerned, both its description and its intent were that of a pirate ship. Only after we were fired upon did we fire. We fired in self defense. There were gun-toting guys with RPGs on it”.
Tension mounts in Somali pirate lair as ransom clock ticks” Mohamed Said addresses both al-Shabaab and the Saudis, telling AFP that “We are the Shebab of the sea and we can't be scared by the Shebab of the land” and "Every Somali has great respect for the holy
The AP’s current tally: At least 96 pirate attacks in Somali waters in 2008, with 39 or 40 of these ships hijacked (AP articles are inconsistent on this point) and “fifteen of these ships, along with nearly 300 crew, are still in the hands of Somali pirates.” A United Nations report released Tuesday estimates that $25 million to $30 million has been paid in ransom to Somali pirates this year. Bloomberg tallies “at least 91 vessels have been attacked in the Gulf of Aden, an area almost twice the size of Alaska, flanked by Yemen and Somalia” and the International Maritime Bureau counts 581 crew members taken hostage worldwide from January to September, compared with 172 during the same period in 2007.
4) Other Articles
- Spain sends a frigate, Pakistan offers help contingent on UN mandate, the Moscow Times calls the Gulf of Aden “a maritime version of Chechnya”, Greek-owned chemical tanker MV Genius, which was seized in September, was released with its 19 crew after the owners paid a ransom, and Yemeni cargo ship MV Amani hijacked in Gulf of Aden.
- James Lyons, retired U.S. Navy admiral, makes suggestions in the Washington Times.
- Dennis Sampson and Nikolas Gvosdev of the U.S. Naval War College point to the success of the Maritime Organization for West and Central Africa in curtailing crime in the
- Business Week covers the drop in the Baltic Dry Index, AFP covers shipowners choosing to spend the extra $500,000 it costs to round the Cape of Good Hope instead of risking hijacking in the Gulf of Aden and the Financial Times covers how ships avoiding the Suez canal is potentially devastating to Egypt: “The international waterway is critical to the Egyptian economy and in the last fiscal year it earned a record $5.2bn (€3.9bn), making it the nation's third highest source of foreign currency revenues behind tourism and remittances”. The canal already faces a projected 10% reduction in traffic as result of the global economic crisis. Reuters reports that “the canal made $467.5 million in October, down from $504.5 million in August when a record 1,993 ships used the canal."
5) Article Countdown
We’re looking for the first publication to use Djibouti as a platform to address NATO anti-piracy activity (French and US bases), how enmity between the three states which surround Djibouti (Ethiopia, Eretria & Somalia) have compounded Somali’s turmoil, and how a small entity like Djibouti is both impacted by piracy and a global economic slowdown, and how any economic turmoil in Djibouti impacts others (such as Dubai, whose government-owned DP World operates the Port of Djibouti).