By Cameron MacLeod
Since early 2010, the Seychelles has become the hub for prosecution of Somali pirates in the Indian Ocean. The Seychelles recently enacted a statute giving its courts universal jurisdiction to prosecute pirates brought to the Seychelles by other countries, and with financial support of the United Nations, the Seychelles has built a state of the art prison facility for pirate defendants and convicted pirates. The suspension of piracy prosecutions in Kenya means the Seychelles is now the primary regional player with the capacity and willingness to prosecute Somali pirates.
In the past few months, the Seychelles Supreme Court has completed six piracy cases, which are publicly available for the first time on the Grotian Moment website. While these piracy cases are not large in number, their impact on the law and prosecution of piracy is notable in two respects: First, they establish that universal jurisdiction for piracy is well recognized, and that the concept of hostis humanis creates a strong basis for exercising universal jurisdiction in piracy prosecutions, even in cases in which a third state initially apprehended the pirates. The Seychelles case law will constitute an important precedent if the international community eventually sets up a regional piracy court at the facilities of the International Criminal Tribunal for Rwanda, as proposed by the United Nations Secretariat.
Second, the Seychelles cases establish that pirate sentences must be appropriately severe. The international conventions relevant to piratical acts do not provide guidance on sentencing, and some domestic courts have given extremely light sentences to convicted Somali pirates. The decisions of the Seychelles courts clearly demonstrate the severity with which the crime of piracy should be viewed, even in cases where no victims were killed. In at least two cases, for attempting the crime of piracy, each pirate was sentenced to a period of more than twenty years. For completed acts of piracy, the maximum penalty under Seychelles law is up to thirty years of imprisonment and sizeable fines. The Supreme Court of the Seychelles telegraphs a plain message with these sentences: like those who commit war crimes and crimes against humanity, pirates are hostis humanis, and as such the offense against the international community warrants a significant sentence.
Below are brief summaries of each case, and the sentences handed out therein. These judgments were provided to Case Western Reserve University School of Law Professor Michael Scharf, who has been assisting the Seychelles in the prosecution of pirates.
Republic v. Mohamed Ahmed Dahir & Ten (10) Others, Judgment, Crim. Side No. 51 (2009) - "Topaz":
A surveillance aircraft observed a "whaler," a floating base of operations for pirates, towing two skiffs and radioed the location to the Topaz, a Seychelles Coast Guard war ship. When the Topaz arrived on the scene, it came under attack from the two skiffs, and subsequently subdued and apprehended both skiffs. The Topaz then pursued the whaler and apprehended three more men. This case is important for its analysis of the question of whether an act of piracy can also be prosecuted as an act of terrorism. The eleven accused were charged with five counts of committing terrorist acts, aiding or abetting terrorist acts, and conspiracy, as well as counts for piracy and aiding and abetting piracy. The government submitted that attacking the Topaz had a broader political goal than mere piracy, and that the incidental impacts on governmental function were sufficient to establish the attacks as acts of terrorism. The court rejected this argument, as it concluded that the attacks were both too attenuated and lacked the intent to impact governmental functions. The court similarly rejected the conspiracy claims, and focused instead on the piracy counts. The court found that the intent of the eight accused on the two skiffs was to commit piracy, and that their manifest intentions and actions constituted the complete crime, regardless of their ultimate lack of success. Furthermore, it found that the three men apprehended on the whaler were guilty of aiding and abetting in this endeavor. As such, the court found the eight men named in count three guilty of piracy, and the three named in count seven of aiding and abetting piracy.
Judgment - Topaz
Republic v. Abdi Ali et al., Judgment, Crim. Side No. 14 (2010) - "Intertuna II":
Eleven pirates attempted to seize the Intertuna II, a Spanish fishing vessel, on March 5, 2010. The pirates approached twice on skiffs and were turned away by security officers aboard the vessel. The pirates retreated to their "whaler" and were subsequently arrested by French naval authorities in conjunction with Spanish and Italian patrols. The case establishes accomplice liability under the laws of the Seychelles for piracy, as well as affirming the notion of criminal attempt in piracy. Each of the eleven accused were sentenced to six years’ imprisonment.
Judgment - Intertuna II
Sentence - Intertuna II
Republic v. Mohamed Aweys Sayid et al., Judgment, Crim. Side No. 19 (2010) - "Galate":
Over four days, the nine accused attacked three ships, seizing the Galate, and using it to launch attacks and seize an Iranian ship. The Topaz, a military patrol boat fired upon by the pirates, eventually arrested the nine accused after the Iranian vessel they seized caught fire and sank. Interestingly, while evidence showed that only two of the pirates fired upon the Topaz, all the pirates were convicted of the unlawful act under a theory of accomplice liability similar to Joint Criminal Enterprise in the domestic law of the Seychelles. Each of the pirates was sentenced to twenty-two years imprisonment.
Judgment - Galate
Sentence - Galate
Republic v. Mohamed Ahmed Ise & Four Others, Judgment, Crim. Side No. 75 (2010) - "Talenduic":
Over two days, the accused Somalis attacked two French ships in the Gulf, and failed. The accused were apprehended from their "whaler" by EU forces in the area of the attacks and brought to the Seychelles to stand trial. The conviction here, unlike the two above, was based solely on circumstantial evidence, as no direct evidence of the crime taking place was produced (para. 32). The court, however, found that the only reasonable inference to be drawn from the presence of the pirate vessel in the area was one of guilt -- even though no weapons, hooks, or other piratical equipment were found in the whaler -- and convicted all five accused.
Judgment - Talenduic
Republic v. Houssein Mohammed Osman & Ten Others, Judgment, Crim. Side No. 19 (2011) - "Draco":
The accused in this case approached the Draco at high speeds onboard a single skiff. Security officers onboard the Draco alleged that one of the accused had a bazooka pointed toward them, which prompted these officers to begin firing at the skiff. The accused turned back, and were later apprehended on board a whaler not far away. They had not manifested any overt act of piracy, nor were there any weapons or piratical tools found aboard their skiffs when arrested, similar to the Talenduic case. The government argued that merely having the intent was the completed act of piracy, but the court rejected this position. While it found insufficient evidence of an overt act of piracy, the court held the pirates had the manifest intent to commit piracy, and their preparatory actions constituted attempt under the Penal Code. They were convicted of attempted piracy and having the common intent to commit piracy. The accused were sentenced to ten years imprisonment.
Judgment - Draco
Sentence - Draco
Republic v. Abdukar Ahmed & Five Others, Judgment, Crim. Side No. 21 (2011) - "Gloria":
Seven men (the six accused and one other) attacked from skiffs and seized the Gloria on April 19, 2011, making for Somalia after seizing the ship. The captain of the Gloria had sent a distress call, and two Seychelles Coast Guard vessels responded. The pirates opened fire on the two vessels and threatened to kill the Gloria’s crew, and the Coast Guard returned fire from a safe position. One of the pirates was killed in the crossfire. The pirates were convicted of three counts of piracy, for attacking the Gloria, as well as acts of violence against the two Coast Guard vessels. It was the first case where there was a detailed analysis in the court’s opinion of the defenses offered by the defendants. The accused were sentenced to terms of twenty-four years on the first count, and eighteen years on counts two and three, all running concurrently. Interestingly, the Court ordered the pirate’s property to be auctioned and the proceeds given as compensation to the victims of the acts, blending civil reparation with criminal liability.
Judgment - Gloria
Sentence - Gloria