[MUSIC].
Terrorism and Piracy.
Doesn't get much more interesting than
that.
I'm Michael Scharf, welcome back to our
course on International Criminal Law.
Today we're going to be looking at two of
the most fascinating crimes in the field,
Terrorism and Piracy.
Our objectives today are to first of all
to understand why a consensus definition
of terrorism has been so difficult for
the international community to arrive at.
Next, we'll be looking at the gaps in the
web of anti-terrorism treaties, and why
the quest for a new definition continues
to be on the priority list of the United
Nations.
And then finally, we'll be exploring the
contours of the crime of piracy.
A crime that many thought was something,
that was only important in the past.
But now, with the scourge of Somalia
pirate attacks, it's on everybody's radar
once again.
You probably are familiar with the old
adage that one person's terrorist is
another person's freedom fighter.
This next slide really brings that to
home.
This was taken during the Ronald Reagan
administration back when the United
States was supporting the Taliban
resistance to the Soviet occupation of
Afghanistan.
That's right, these are the same Taliban
that we have been fighting against for
the last 11 years, since the 9/11
attacks.
And of course, Ronald Reagan said back
then, these gentlemen are the moral
equivalent of America's Founding Fathers.
In other words, if you support their
cause, they're not terrorists.
This has been the problem for the
international community, how do you
define a crime that is only a crime when
it's against you and not when it's for
you.
Well, the international community has
done this, by creating a number of
specific international treaties, called
anti-terrorism conventions.
That makes certain kinds of terrorism
unlawful, no matter what the reason is,
no matter whether, no matter what the
context whether you like the terrorist or
you dont.
So, they cover things for example as the
hijacking of aircraft.
No matter why you hijack, even if you're
a refugee trying to escape a totalitarian
regime.
It's still terrorism and it's covered by
a treaty.
And the treaty says if anybody gets hold
of a hijacker, they must prosecute that
person under universal jurisdiction or
extradite them to another country who
would prosecute.
Same applies to the crime of airport
sabotage, aircraft sabotage, blowing up
aircraft like the famous case of the Pan
Am 103 bombing.
and this has been expanded to not only
include aircraft sabotage but also
attacks against vessels.
Then there is hostage-taking.
No matter why you take hostages, it is
such an international crime, it is
therefore considered criminal under all
circumstances.
Another one, as I was mentioning,
attacking maritime ships, civilian ships
on the high seas, like the Achille Lauro
case that was so famous a few years ago.
Then there is attacks against diplomats.
Any time a diplomat is attacked, it
doesn't matter if you like that country
or not, that makes it a terrorist
incident according to these treaties.
Then there's a treaty that deals with
using bombs against the civilian
population.
There's some other treaties as well, for
example, there is a treaty that covers
using poisons, chemical weapons or
biological weapons and introducing those
to public water systems.
There is also a treaty that deals with
attacks against UN peacekeepers, who are
supposed to be neutral and therefore off
bounds free from any attack.
And then finally there is the new treaty
that covers financing of terrorism,
because the international community has
decided that the people who pay for the
bullets and the bombs are just as guilty
as those that pull the trigger or plant
the explosives.
Now, that doesn't cover every possible
international crime.
And as you know from the readings, there
are gaps in the international web of
treaties that try to cover terrorists
incidents without having a general
definition of terrorism.
So look, let's look at some of those
gaps.
One of them is the question of whether
terrorism attacking civilians with
something that's not an explosive can be
covered.
And the 9/11 incident shows that even if
it's not an act of terrorism, it might be
covered under the crime against humanity
that we described and discussed in the
last class session.
So that as a review, covers attacks
against civilians that are widespread and
systematic.
And since 9/11 was an attack against at
least 3,000 civilians, in two different
airplane crashes that were in New York
and then another two that one landed in
Washington, one in the countryside in
Pennsylvania.
That was systematic and widespread.
So, even if it wasn't a clear act of
terrorism per se, it could have been
prosecuted as a crime against humanity,
even before an international court.
Now it, it was of course an act of
terrorism too because they used planes,
and if you attack planes, as I said
earlier, that violates one of the
anti-terrorism conventions.
But what's not covered?
One of the things not covered are attacks
against trains.
And, you know, a lot of people travel on
trains all over the United States and
Europe and, and elsewhere in the world.
And if you don't use a bomb, because that
would be covered, but rather you figure
out a way to derail the train with
something less, maybe something less high
tech, then that's not covered.
You know what else?
Another public conveyance that many
people travel in, are buses.
And you can attack a bus, as long as it's
not with a bomb again, because bombing is
covered by the treaties.
But let's say you attack it with a
machine gun, or throw a rock through the
window.
These things can not be considered
terrorism covered by the current
treaties, even if your purpose was to try
to instill fear in the public.
And then finally, cyber terrorism.
This is going to be one of the biggest
kinds of problems facing the world in the
future.
We're very vulnerable to cyber attacks
from everything to a terrorist group
pushing a button and taking away all of
our investments, all of our savings,
making all of our accounts just
disappear.
That could cause massive panic in the
United States, it could make the stock
market crash but they could do other
things too.
They could, for example, push a button
and make all the green lights turn to red
lights, or red lights turn to green
lights.
In which case, you would have cars
crashing into each other.
They could get who through the cyber
systems into our airports, and convince
our airport traffic controllers that a
blip on a screen is not really a plane
and then suddenly planes would be
crashing.
So, cyber terrorism is an area that needs
to be covered, currently is not.
There is also not covered, attacks
against business people, American
business people, European business
people, others around the world are
basically sitting targets for terrorists.
If a diplomat is attacked, the person is
a terrorist, if he is found he has to be
prosecuted or extradited.
Not so much with the business person.
Also, students and educators like myself
and you.
If you're attacked abroad, unlike
diplomats, it's not considered terrorism.
And then finally, fake attacks, attacks
that scare the heck out of a population
and they can cause all sorts of problems,
but they're using fake weapons.
So this is a picture of fake anthrax and
there have been many cases in recent
years where there had been these kinds of
attacks that are very fearful.
So what we have decided to do in our
simulation for today is divide you up by
the letter of your last name into two
groups, A and B.
And group A is going to be representing
states that have been the target of
international terrorism.
And group B are states that are known to
have terrorist groups active within their
territory.
Some maybe support those groups.
Others maybe just are unable to control
those groups.
And you can pick whatever country you
want from those general categories and
we're going to have assimilation where we
discuss.
A general definition of terrorism where
you think about it from the point of view
of your assigned country.
Now this is going to be difficult,
because the countries in the world have
different agendas, and it's going to be
very hard for them to all come to
agreement.
On something that has eluded the
international community for so long.
Let's try with a draft definition.
One way we could approach this would be
to say, let's define terrorism as the
peacetime equivalent of war crimes.
Now, from the last session, you guys are
all experts at what is a war crime, what
is a grave breach of the Geneva
Conventions?
So let's just say that if you target
civilians, for example, during peace
time.
Indiscriminately and disproportionately,
that is a peacetime equivalent of a war
crime and therefore it's terrorism.
There have been some proposals to do this
both in the UN and various countries
including the Indian Supreme Court.
But what are the problems with that
proposal?
One is if you make an equivalence between
war crimes and terrorism, it means that
the terrorists get to use the same
defenses that are available in the
context of war.
So they can use the obedience to orders
defense, something that we're going to be
focusing on in a couple of class sessions
from now.
But basically they can say oh, I was just
following the orders of my commander, and
I wasn't sure if this was clearly an
illegal order.
I, he told me to just take this box from
one place to another.
I didn't know that it had, you know, a
bomb in it, I thought, maybe it did, but
I wasn't sure, I was following orders.
Well, we can't have the terrorists
getting away with terror under that
defense.
Another problem would be the, fact that
in war crimes in the context of war if
you attack a legitimate target and some
other civilians happens to be nearby and
they die, that's just called collateral
damage.
And the people, when you attack the the
enemy, that is not a crime at all.
That's called combatant immunity.
So the terrorist could basically say,
look, we only targeted the military, we
only targeted the government and
therefore we didn't kill any innocents.
And if did kill some innocents, they
weren't disproportionate to our attack
and therefore, they were just collateral
damage.
Now, obviously, these rules that apply in
the laws of war should not apply to
terrorists, because that would be the
exception that would swallow up the
entire effort to try to prosecute
terrorists.
So, let's look at another way that we
might be able to define terrorism.
Let's start with this general definition.
Terrorism is the intentional use or
threat of the use of violence against
civilians or civilian targets in order to
attain political aims.
So, you have violence, you have these
people who are being victimized, being
civilians, and you have the intent to be,
to attain political aims, which is the
part that makes it terrorism.
Any problems with this?
Well, we will be having a debate offline
where many of you will be discussing
whether this is a failed and flawed
definition.
But basically the problem is when it says
against civilians or civilian targets it
makes it open season for killing the
police.
Now, if you have all the terrorists
shooting all the police and anybody else
who maybe is an officer of the
government, but not a civilian.
That's still terrorism and that's
something that needs to be punished.
So you don't want a definition that opens
that up.
It also would open it up to attacks
against Federal buildings.
This is a picture of the Oklahoma City
bombing.
This occurred in the United States about
a decade ago and what happened was, a
home grown terrorist named Tim McVeigh
blew up an entire federal building
including the floor that housed little
children in day care.
Clearly, that's terrorism.
But under this definition, the target was
a federal building and I guess the kids
in day care would have been unsuspecting
collateral damage.
This definition isn't going to work.
It's too narrow.
Well, let's try to change it a little
bit.
Instead of saying civilian targets, maybe
we'll call it non-military targets.
And therefore, the police who aren't in
the military, federal buildings that
aren't military, those would be covered
and any attacks against them would be
terrorism.
All right, we're getting there, maybe
this is a little bit more nuance.
Let's look at another problem with the
definition however.
And that is, it says that it's in order
to attain political aims.
Well, what about terrorists who aren't
doing it for political aims?
You might think, well, I can't really
think of a terrorist who doesn't have a
political motive.
But what about the Somalia pirates?
They are taking people hostage, that's an
act of terr-, of terrorism but they are
not doing it for political reasons, they
are doing it because they are poor and
impoverished and need the money.
And so they wouldn't come within
terrorism but if they fall outside of
piracy, for example if they are acting on
the land, you would want them to be
defined as terrorists.
Another example, Narco-Terrorist.
These are the major narcotics groups, the
cartels in Latin America and Central
America.
The groups that operate through out Asia
and Russia and elsewhere.
Well they're using terrorist acts.
They use things like coercion, and they
kidnap Judges, and they threatened public
officials and they do this not because of
a political aim.
But rather, because they want to grease
the wheels of their very profitable
narcotics delivery systems.
So that wouldn't be covered.
And then what about high school pranks?
There have been a rash of cases
throughout the United States and Europe,
where people call in fake bomb threats
and these have a huge economic impact.
But Like the fake anthrax, these high
school pranks are not done for political
reasons, they are done because there are
juvenile delinquents that think they are
having fun.
And haven't learnt the lessons of how,
how much trouble they are causing for
their community and those people need to
be prosecuted too.
And what about, the mafia?
The mafia use acts of terrorism on a
widespread basis but they don't do it for
political reasons.
They do it to become rich mafioso's.
And finally there's hate crimes people
who use terrorist acts because they hate
another group, an ethnic group or a
religious group.
And they do it not for any political
reason but just to terrorize the people
they hate.
So, maybe we'll revise our draft
definition a little bit to try to get at
this.
In addition to changing civilians to
non-military targets, let's change
political aims to creating fear in the
general public.
It's broader and it would capture all of
those examples that we just discussed.
Well, there's still other problems with
the definition.
For example, should there be an exception
for people who are fighting against
repressive regimes?
It's one thing to say there should be no
terrorism allowed in a democracy, where
you can go to the ballot box if you want
to change the way things are.
But if you live in a repressive regime,
or if you live under the yoke of a
former, of a, a, another country that is
treating you as a colony and you have no
way of changing things.
Then maybe it's courageous to be a
freedom fighter, to be a, a rebel, to be
a revolutionary.
Think back for example to George
Washington.
Here is a picture of George, what did he
do?
Did he fight the British during the
American Revolutionary War in a
conventional sense?
No.
He knew he couldn't win that way so
instructed his subordinates to act as the
native Americans have done, to basically
adapt terrorist tactics.
To snipe from afar and from hidden
places, to not wear a uniform on the
battlefield.
To do all sorts of things that would be
considered acts of terrorism today.
But back then, he was a revolutionary
hero, one of the founding fathers of the
United States.
Of course we have that quote I showed you
at the beginning of the session, where
Ronald Reagan said, The Taliban.
The Taliban, these are the people who
work with Al Qaeda now, who are the major
terrorist threat to most of the world.
And Ronald Reagan said, these Gentlemen
are the moral equivalent of America's
Founding Fathers.
Well, is he right if some group is
fighting against Russian occupation, does
that change, whether they should be
considered a terrorist or not?
And then, this latest picture is what's
going on in Syria.
So in Syria, basically, the Assad
government was repressive for many years.
When the spread of democracy and the Arab
Spring finally made its way to Syria,
many people joined together and created a
spontaneous uprising.
They were joined by groups including
Al-Qaeda who were fighting against the
repressive regime, and just recently the
Europeans and the United States have to
started to funnel millions and millions
of dollars in aid to these groups to help
them topple the Syrian government.
But they're not fighting fair,they're
using assassination and bombs, civilians
have been killed, they've kidnapped
people, they're basically using terrorist
tactics.
But should they come within a general
exception because of the context?
This is a really tough question.
Maybe the toughest one of all, when
countries are trying to come up with a
definition of terrorism.
So let's maybe, add that to our
definition and it would then say that
terrorism is the intentional use or
threat to use violence against
non-military targets in order to create
fear in the general public.
And then we'll add this sentence.
It does not include acts by groups
fighting against repressive or colonial
regimes.
Now, that's going to be very, very
controversial, because just like one
person's terrorist is another person's
freedom fighter.
One person's repressive or colonial
regime is another person's democracy.
And this is going to make this very hard
to come up with a definition.
Now, one of the things that might move
along this process that's very recent is
that Security Council together with the
government of Lebanon, has created a new
international court.
That is the first international court
devoted to a terrorist act and this is
the special tribunal for Lebanon.
It sits in the Netherlands, the Hague,
where the other international tribunals
sit, most of them.
And it has jurisdiction over the bombing
attack against the former Prime Minister
of Lebanon, Mr Hariri.
And so, they have had proceedings,
they've had a lot of judicial debate.
And finally, the special tribunal for
Lebanon's chief Judge, Judge Cassese has
given us a definition of terrorism that
would govern this case.
And, and here behind me now you see the
picture of Mr Hariri and pictures of the
explosion.
The bomb was so big in that case, by the
way, 22 people died including him and it
was felt as far away as 300 miles.
So, Mr Cassese is, is pictured here and
Judge Cassese, who just passed away
unfortunately.
Was a very aggressive Judge when it came
to creating new international law.
He was also a Judge at the Yugoslavia
Tribunal who came up with one of their
key decisions, which we'll talk about in
the next session, a decision that created
a kind of liability called Joint Criminal
Enterprise Liability.
But in this context, he said, hmm, I know
that the world has been having trouble
defining terrorism, but I think that
there's enough evidence out there that
there is a definition of terrorism.
And this is the definition that he
promulgated.
He said, terrorist acts consist of the
following three key elements.
First of all, they have to a criminal act
well, such as murder, kidnapping,
hostage-taking, arson and so on.
secondly, there has to be the intent to
spread fear among the population, which
is similar to definition that we've been
talking about.
And third, it has to be an international
act.
So in Lebanon, if the case was solely a
home ground terrorist that committed this
atrocity, it wouldn't fall within the
international terrorist definition.
But if in fact there were elements from
Syria or Iran that were involved helping
these terrorists as they believe to be
the case of Lebanon then it would fall
within the international definition of
terrorism.
So, here we have another way of looking
at the definition of terrorism.
It might push the international community
forward.
I think one of the problems with this
definition is by saying this is a
criminal act, you're sort of starting out
you know how they say you should never
define a term by use of the term.
Well, here if you're going to say
something's criminal you shouldn't start
out by saying it's already criminal and
there are things that may not be criminal
or clearly criminal that should be
covered within the definition of
terrorism.
So that might be a problem.
But I think we're getting there and I
think what's important is that this is
the first time an international tribunal
has weighed in on this.
And it might be the case that the
international community will use this as
a starting point and this will move the
debate forward.
Because after all, it's been thirty years
since they proposed the definition of
terrorism and they haven't been able to
get one.
And that's why the international
community has instead just simply created
a number of narrow treaties that define
types of acts that everybody can agree on
without the general umbrella of a
definition.
Now lets turn to the other, really
interesting crime that is plaguing us in
this day and age that is modern day
piracy.
You know, the history of piracy goes back
400 years, and it includes some very
famous historical figures that many
people read about when they were
children.
you have for example the original
pirates, who were the vikings and they
would go into Ireland and England and
other places outside of Scandinavia and
they would commit traditional piratical
acts.
Then, later on, you had the Barbary
pirates.
In the United States, we have this famous
marine corps hymn.
It says from the house of Montezuma to
the shores of Tripoli, and most Americans
don't have any idea why it refers to the
shores of Tripoli.
The reason is because during the creation
of the marine corp, it's first use was
against the Barbary pirates who had been
based in Libya, they taken over really
and were a threat to the entire
Mediterranean.
And they were scourged for years until
they were totally wiped out.
Then more recently, you have other pirate
names.
Blackbeard, for example, Morgan, and the
famous Billy the Kid, William Kid.
So pirates were a thing of the past.
Most people knew about 'em.
But then all of a sudden they returned.
So here we have a graph that shows from
2001 to 2011, the number of piratical
attacks.
And the ones in red, the area that's
growing, are the Somalia pirates.
here Underneath this is a picture of the
parts of the world where pirates
generally operate.
And if you look off the coast of Somalia,
this is the area where almost all of the
oil from the Middle East must travel.
It is a major shipping area.
And because of these attacks, the
international community is suffering
about $12 billion a year in losses.
There's over 1,000 people that are
currently being held hostage, hundreds of
vessels have been captured.
This is a major problem for the world
community.
Now, piracy has a modern definition that
is in the UN Law of the Sea treaty.
And it's been defined as illegal acts of
violence for private ends committed by a
crew or passengers of one ship against
another ship, and it has to be in the
high seas.
And anybody who is defined as a pirate,
can be arrested and prosecuted under
universal jurisdiction.
Which is the kind of jurisdiction we've
been talking about in the last class
session.
Where when an offender shows up on your
territory, even if he's not your
nationals, even if the crime wasn't
against your nationals, even if he's
never been to your place territory before
you can prosecute him.
And in terms of pirates, you don't have
to wait till they come to your territory,
you can grab them on the high seas,
wherever they're found.
They are the enemies of all humankind.
Now, the situation at Somalia is
basically caused by two things.
One is that the Somalia state has been
without a functioning government for over
20 years.
It's basically a failed state, and in a
failed state you always have organized
crime that takes over.
You have rebels, you have terrorists
groups that take over and in this case,
piracy has flourished.
Secondly, the people of Somalia who are
poor, orphaned, subject to starvation and
drought, use to do a lot of fishing of
their coast.
But they claim, and there's some evidence
to back this up, that the Europeans and
the Asians and the Africans, have all
been fishing this area that was rich with
fish stocks until recently.
And now, most of the fishing is gone.
So they don't have any other options.
So if you're a poor, starving Somalian
citizen, what are you going to do?
You're going to make a lot of money
joining a pirate fleet.
And so the business model has been very
successful in particular because every
time they hijack a ship, and hold people
hostage, the insurance companies are
paying for it.
And in a few minutes, we'll talk about
how do you combat that.
But the first thing that's happened is
that a number of countries are starting
to prosecute these pirates.
And the Europeans, the United States, and
other countries are starting to apprehend
them.
In the high seas and bring them to these
countries.
So for example, we have the first piracy
court setup in Kenya, in the coastal town
of Mombasa.
The next one was set up in the
Seychelles.
And the last one that is just been set up
is in Mauritius.
And these three areas have become similar
to an international court for pirates in
this area.
And the UN has been paying a lot of money
to equip them with jail facilities, to
help modernize their court system and
there is a lot of new jurisprudence
coming out in the area of piracy.
And the incidents of piracy are starting
to go down.
Let's look at some of the, the
difficulties in the definition of piracy.
This is the famous case of the Achille
Lauro hijacking.
This happened in 1986.
There was a cruise ship registered to
Greece that was sailing around the
Mediterranean and a terrorist group, The
PLO, hijacked it, led by a PLO leader
named Abu Abbas.
This terrorist took the ship and held it
hostage for many days, saying that the
reason was that it would not free the
ship until the Israelis freed 1,000
Palestinians that the Israelis were
holding in jail.
To show that they were serious, they took
an elderly Jewish man named Leon
Klinghoffer, who was in a wheelchair, and
they shot him and they threw him
overboard.
So, the question was, was this covered
under universal jurisdiction as an act of
piracy?
And at the time many countries felt that
it was not.
Why?
Because remember the definition of
terror, of piracy says It has to be an
attack from one ship to another ship.
These PLO people smuggled themselves in,
posing as staff of the cruise ship, and
then it was more like they were doing
mutineers than actual piracy.
So they entered, the international
community said, well we've gotta close
that gap and they entered into something
that's now called the SUA convention,
SUA.
it's the maritime terrorism treaty, it
was negotiated under the auspices of the
International Maritime Organization.
And it says that when you hijack or
attack a crew ship or another civilian
boat, it doesn't matter if you're doing
it on the high seas, it doesn't matter if
you are doing it from another vessel.
It doesn't matter whether your intent is
to have money, which is part of the
definition of piracy, it's covered under
this new treaty.
Another one of these questions that has
come up a lot recently is this.
Say you're a European or American
military vessel, or an Asian vessel,
you're patroling the Indian waters, and
you come up against a vessel that's full
of piratical equipment.
Now, here is the picture of piratical
equipment.
It's basically things like grappling
hooks, special ladders, RPG's, machine
guns, things that you just wouldn't need
if you were an ordinary fisherman sailing
around in the Indian ocean.
So the vessels of the Europeans or the
Americans grabbed this thing and they say
uh-huh, you're a pirate.
And when it goes to trial the defense
says well, they weren't engaged in piracy
they weren't chugging steaming towards a
pirate, target.
You don't know where they were coming or
going you don't know what they were doing
with the goods.
Well, the question then is a really
important one.
Because almost always, you don't catch
the pirates right in the act but, you
often come against these vessels.
And what the Supreme Court of the
Seychelles did in a landmark decision was
go back to the old cases involving the
slave trade from 300 years ago.
And in those cases, they would capture
slave ships that were full of manacles
and rice and extra beds things that were
clearly to be used for slaving.
And even though they weren't engaged in
slaving at the time or about to commit an
act of slavery, which would have made
them attempting to commit slavery.
They felt that, that was enough to
exercise universal jurisdiction.
So the Supreme Court of the Seychelles
took this old precedent and dusted it off
and applied it.
And now, we've got this huge weapon
against pirate ships because any country
can exercise universal jurisdiction
against ships that have piratical
equipment.
Now, it could be that other countries
will relitigate this issue because that
was a bit of stretch in the law but for,
from the point of view of the prosecution
it was a golden magic bullet.
and they were very thankful around the
world that the Seychelles supreme court
bravely pushed the bounds of law and
created this precedent.
Well what about the fact that many of the
pirates don't ever go off into the high
seas?
In Somalia you've got certain people that
go off and they commit the acts of
piracy, but you've got others that are
support staff.
These are the ones that hold the
hostages, they prepare the vessels, they
process the money, they negotiate the
hostage releases, there's a lot of things
that go on, on land.
And so the question is, if piracy has to
be only something that's on the high
seas, how can you prosecute these people
if you can get your hands on them?
Now, these people may be more important
to prosecute than the actual pirates that
are on the ocean, because these people
may include the financiers, the pirate
kingpins, the higher ups, that recruit
the pirates.
And so, therefore, they're the ones who
need to start to prosecute but they're
safe on land.
And so, this is an issue that is
currently being litigated in several
courts around the world to decide whether
piracy and conspiracy to commit piracy
should include those who are on dry land.
And even by the time that this airs, I
think there will probably will be some
more precedent on that issue.
Now one of the biggest problems with the
pirate trade is that it is a business
model that simply works really well.
That's because when some ship is taken
hostage its insurance will pay to
negotiate the release including paying a
ransom.
So, here's a picture of a ransom.
This is an actual picture of ransom money
being dropped on a ship full of pirates
that was seized and then here are the
pirates with their boxes of money sailing
back to Somalia where they will spend it.
And in fact this is an interesting twist,
the cities where the pirates operate have
been the economically most benefited in
all of Somalia.
And international groups such as hotel
chains and others are starting to go
where the money is.
And these little cities are doing quite
well but it's all pirate money.
So the question is this, could you make
the payment of a pirate ransom an act of
terrorism or an act of piracy as well.
And there is the precedent that says
you're not allowed to, to give material
support to terrorists.
Well, since pirates are committing acts
of hostage taking, which is a form of
terrorism, maybe not for political ends
but still it, it's covered by those
conventions.
Then why couldn't the international
community just say it's not allowed?
You can no longer be paying these
ransoms.
This is a issue that's been debated in
capitals the British parliament has
debated this.
And on the one side are those that say
wow, it would be against public policy to
basically say to the pirates, go ahead
and kill our hostages.
If we could rescue them we should, and
there's the other side that says, if you
ever really want to dry up piracy the
only way you can do that is by making it
illegal to pay the pirate ransoms.
And again this is one of these big ethem,
ethical conundrums.
It's a philosophical question.
If you can same someone's life but in the
end you're going to facilitate the
pirates who will continue to attack
others.
Which way should you go?
So this is one of those issues that's
playing out even as we're having our
discussions today online.
Now, the biggest new problem in the area
of piracy is what to do about child
pirates.
Child pirates?
You're probably surprised.
In fact, a growing number of the pirates
that are being seized claim to be under
the age of 15.
And it's hard to tell whether they are or
not, because in Somalia they don't get a
lot of food, so their teeth and, and
their bones don't grow as robustly as
well fed children.
So you may have someone who's older, who,
who looks, under, X-rays, as someone
who's younger.
But why would everybody claim to be under
15?
The reason is because the international
community has for the last couple of
years been using a catch and release
approach to child pirates.
You know, if you go off and you're
fishing in a lake or in the ocean and you
find that you have on the end of your rod
a very small fish.
And you say well that's too small, I can
hardly eat that.
I'm going to send it back so it can grow
up to be a bigger fish.
That's catch and release.
And that is what the international
community has been doing with the child
pirates.
So they go out, they get caught.
And unlike the adults who get prosecuted
and sometimes given large prison
sentences, the children are simply
returned to Somalia.
Well that has only encouraged the pirate
recruiters the pirate kingpins the pirate
financiers to go out and get more
children.
And the parents of these children
basically say oh, go ahead we know you'll
be coming back because they have catch
and release.
So something has to be done about this or
else almost all the children will be
sucked into piracy, and all the pirates
will be children, and that cannot be
good.
So, one of the questions is whether you
could make recruitment and use of child
pirates in international crime.
Maybe a crime against humanity, because
it's targeting the civilian population,
it's systematic, it's widespread, and
it's got a horrible affect on people.
And it's not true that all the children
come back safely, because often the
pirate ships engage in military actions
and are sunk and the people on board,
including these children are killed.
Well there is a precedent for this, at
the International Criminal Court in its
very first case.
They prosecuted Lubanga from the Congo
for the crime of recruiting child
soldiers.
And if it's a crime to recruit child
soldiers, why shouldn't it be a crime to
recruit child soldiers who happen to be
on piratical vessels committing acts of
piracy.
So, if in fact the precedent can apply,
then you will see the courts in Mombasa
Kenya, you'll see the courts in the
Seychelles, you'll see the courts in
Mauritius starting to prosecute not just
the pirates but those who are involved in
recruiting the children.
And you know what?
The children also need to be prosecuted.
They should be treated as juveniles but
you can't just release them because, in
the end, piracy is basically a business
model, and the only way you're going to
defeat it is by taking away the engine of
the business.
You take away the ransoms, you take away
the ability for children to engage in
this without any kind of risk and only
then will you start to defeat piracy.
So, we can conclude then, our session on
terrorism and piracy.
We've learned now that these are very
urgent crimes, that are plaguing the
international community.
They are plaguing not just people in the
Indian Ocean but they're having an effect
worldwide.
The terrorists are everywhere, and it's a
battle that every country is engaged in,
and yet we've learned that these are very
complex legal issues.
But not so complex as to be
insurmountable.
And hopefully, the kinds of insights that
you have gotten today will help us push
the law along and help us enforce the law
that we have.
So that we can continue to struggle
valiently against terrorism and piracy. And that concludes our session
for today.
In our next session, we are going to be
looking at the modes of liability that
are unique to international crimes.
Until then, do your work online, do the
online simulations and role play
exercises, and I'll see you at the next
session.
Terrorism and Piracy.
Doesn't get much more interesting than
that.
I'm Michael Scharf, welcome back to our
course on International Criminal Law.
Today we're going to be looking at two of
the most fascinating crimes in the field,
Terrorism and Piracy.
Our objectives today are to first of all
to understand why a consensus definition
of terrorism has been so difficult for
the international community to arrive at.
Next, we'll be looking at the gaps in the
web of anti-terrorism treaties, and why
the quest for a new definition continues
to be on the priority list of the United
Nations.
And then finally, we'll be exploring the
contours of the crime of piracy.
A crime that many thought was something,
that was only important in the past.
But now, with the scourge of Somalia
pirate attacks, it's on everybody's radar
once again.
You probably are familiar with the old
adage that one person's terrorist is
another person's freedom fighter.
This next slide really brings that to
home.
This was taken during the Ronald Reagan
administration back when the United
States was supporting the Taliban
resistance to the Soviet occupation of
Afghanistan.
That's right, these are the same Taliban
that we have been fighting against for
the last 11 years, since the 9/11
attacks.
And of course, Ronald Reagan said back
then, these gentlemen are the moral
equivalent of America's Founding Fathers.
In other words, if you support their
cause, they're not terrorists.
This has been the problem for the
international community, how do you
define a crime that is only a crime when
it's against you and not when it's for
you.
Well, the international community has
done this, by creating a number of
specific international treaties, called
anti-terrorism conventions.
That makes certain kinds of terrorism
unlawful, no matter what the reason is,
no matter whether, no matter what the
context whether you like the terrorist or
you dont.
So, they cover things for example as the
hijacking of aircraft.
No matter why you hijack, even if you're
a refugee trying to escape a totalitarian
regime.
It's still terrorism and it's covered by
a treaty.
And the treaty says if anybody gets hold
of a hijacker, they must prosecute that
person under universal jurisdiction or
extradite them to another country who
would prosecute.
Same applies to the crime of airport
sabotage, aircraft sabotage, blowing up
aircraft like the famous case of the Pan
Am 103 bombing.
and this has been expanded to not only
include aircraft sabotage but also
attacks against vessels.
Then there is hostage-taking.
No matter why you take hostages, it is
such an international crime, it is
therefore considered criminal under all
circumstances.
Another one, as I was mentioning,
attacking maritime ships, civilian ships
on the high seas, like the Achille Lauro
case that was so famous a few years ago.
Then there is attacks against diplomats.
Any time a diplomat is attacked, it
doesn't matter if you like that country
or not, that makes it a terrorist
incident according to these treaties.
Then there's a treaty that deals with
using bombs against the civilian
population.
There's some other treaties as well, for
example, there is a treaty that covers
using poisons, chemical weapons or
biological weapons and introducing those
to public water systems.
There is also a treaty that deals with
attacks against UN peacekeepers, who are
supposed to be neutral and therefore off
bounds free from any attack.
And then finally there is the new treaty
that covers financing of terrorism,
because the international community has
decided that the people who pay for the
bullets and the bombs are just as guilty
as those that pull the trigger or plant
the explosives.
Now, that doesn't cover every possible
international crime.
And as you know from the readings, there
are gaps in the international web of
treaties that try to cover terrorists
incidents without having a general
definition of terrorism.
So look, let's look at some of those
gaps.
One of them is the question of whether
terrorism attacking civilians with
something that's not an explosive can be
covered.
And the 9/11 incident shows that even if
it's not an act of terrorism, it might be
covered under the crime against humanity
that we described and discussed in the
last class session.
So that as a review, covers attacks
against civilians that are widespread and
systematic.
And since 9/11 was an attack against at
least 3,000 civilians, in two different
airplane crashes that were in New York
and then another two that one landed in
Washington, one in the countryside in
Pennsylvania.
That was systematic and widespread.
So, even if it wasn't a clear act of
terrorism per se, it could have been
prosecuted as a crime against humanity,
even before an international court.
Now it, it was of course an act of
terrorism too because they used planes,
and if you attack planes, as I said
earlier, that violates one of the
anti-terrorism conventions.
But what's not covered?
One of the things not covered are attacks
against trains.
And, you know, a lot of people travel on
trains all over the United States and
Europe and, and elsewhere in the world.
And if you don't use a bomb, because that
would be covered, but rather you figure
out a way to derail the train with
something less, maybe something less high
tech, then that's not covered.
You know what else?
Another public conveyance that many
people travel in, are buses.
And you can attack a bus, as long as it's
not with a bomb again, because bombing is
covered by the treaties.
But let's say you attack it with a
machine gun, or throw a rock through the
window.
These things can not be considered
terrorism covered by the current
treaties, even if your purpose was to try
to instill fear in the public.
And then finally, cyber terrorism.
This is going to be one of the biggest
kinds of problems facing the world in the
future.
We're very vulnerable to cyber attacks
from everything to a terrorist group
pushing a button and taking away all of
our investments, all of our savings,
making all of our accounts just
disappear.
That could cause massive panic in the
United States, it could make the stock
market crash but they could do other
things too.
They could, for example, push a button
and make all the green lights turn to red
lights, or red lights turn to green
lights.
In which case, you would have cars
crashing into each other.
They could get who through the cyber
systems into our airports, and convince
our airport traffic controllers that a
blip on a screen is not really a plane
and then suddenly planes would be
crashing.
So, cyber terrorism is an area that needs
to be covered, currently is not.
There is also not covered, attacks
against business people, American
business people, European business
people, others around the world are
basically sitting targets for terrorists.
If a diplomat is attacked, the person is
a terrorist, if he is found he has to be
prosecuted or extradited.
Not so much with the business person.
Also, students and educators like myself
and you.
If you're attacked abroad, unlike
diplomats, it's not considered terrorism.
And then finally, fake attacks, attacks
that scare the heck out of a population
and they can cause all sorts of problems,
but they're using fake weapons.
So this is a picture of fake anthrax and
there have been many cases in recent
years where there had been these kinds of
attacks that are very fearful.
So what we have decided to do in our
simulation for today is divide you up by
the letter of your last name into two
groups, A and B.
And group A is going to be representing
states that have been the target of
international terrorism.
And group B are states that are known to
have terrorist groups active within their
territory.
Some maybe support those groups.
Others maybe just are unable to control
those groups.
And you can pick whatever country you
want from those general categories and
we're going to have assimilation where we
discuss.
A general definition of terrorism where
you think about it from the point of view
of your assigned country.
Now this is going to be difficult,
because the countries in the world have
different agendas, and it's going to be
very hard for them to all come to
agreement.
On something that has eluded the
international community for so long.
Let's try with a draft definition.
One way we could approach this would be
to say, let's define terrorism as the
peacetime equivalent of war crimes.
Now, from the last session, you guys are
all experts at what is a war crime, what
is a grave breach of the Geneva
Conventions?
So let's just say that if you target
civilians, for example, during peace
time.
Indiscriminately and disproportionately,
that is a peacetime equivalent of a war
crime and therefore it's terrorism.
There have been some proposals to do this
both in the UN and various countries
including the Indian Supreme Court.
But what are the problems with that
proposal?
One is if you make an equivalence between
war crimes and terrorism, it means that
the terrorists get to use the same
defenses that are available in the
context of war.
So they can use the obedience to orders
defense, something that we're going to be
focusing on in a couple of class sessions
from now.
But basically they can say oh, I was just
following the orders of my commander, and
I wasn't sure if this was clearly an
illegal order.
I, he told me to just take this box from
one place to another.
I didn't know that it had, you know, a
bomb in it, I thought, maybe it did, but
I wasn't sure, I was following orders.
Well, we can't have the terrorists
getting away with terror under that
defense.
Another problem would be the, fact that
in war crimes in the context of war if
you attack a legitimate target and some
other civilians happens to be nearby and
they die, that's just called collateral
damage.
And the people, when you attack the the
enemy, that is not a crime at all.
That's called combatant immunity.
So the terrorist could basically say,
look, we only targeted the military, we
only targeted the government and
therefore we didn't kill any innocents.
And if did kill some innocents, they
weren't disproportionate to our attack
and therefore, they were just collateral
damage.
Now, obviously, these rules that apply in
the laws of war should not apply to
terrorists, because that would be the
exception that would swallow up the
entire effort to try to prosecute
terrorists.
So, let's look at another way that we
might be able to define terrorism.
Let's start with this general definition.
Terrorism is the intentional use or
threat of the use of violence against
civilians or civilian targets in order to
attain political aims.
So, you have violence, you have these
people who are being victimized, being
civilians, and you have the intent to be,
to attain political aims, which is the
part that makes it terrorism.
Any problems with this?
Well, we will be having a debate offline
where many of you will be discussing
whether this is a failed and flawed
definition.
But basically the problem is when it says
against civilians or civilian targets it
makes it open season for killing the
police.
Now, if you have all the terrorists
shooting all the police and anybody else
who maybe is an officer of the
government, but not a civilian.
That's still terrorism and that's
something that needs to be punished.
So you don't want a definition that opens
that up.
It also would open it up to attacks
against Federal buildings.
This is a picture of the Oklahoma City
bombing.
This occurred in the United States about
a decade ago and what happened was, a
home grown terrorist named Tim McVeigh
blew up an entire federal building
including the floor that housed little
children in day care.
Clearly, that's terrorism.
But under this definition, the target was
a federal building and I guess the kids
in day care would have been unsuspecting
collateral damage.
This definition isn't going to work.
It's too narrow.
Well, let's try to change it a little
bit.
Instead of saying civilian targets, maybe
we'll call it non-military targets.
And therefore, the police who aren't in
the military, federal buildings that
aren't military, those would be covered
and any attacks against them would be
terrorism.
All right, we're getting there, maybe
this is a little bit more nuance.
Let's look at another problem with the
definition however.
And that is, it says that it's in order
to attain political aims.
Well, what about terrorists who aren't
doing it for political aims?
You might think, well, I can't really
think of a terrorist who doesn't have a
political motive.
But what about the Somalia pirates?
They are taking people hostage, that's an
act of terr-, of terrorism but they are
not doing it for political reasons, they
are doing it because they are poor and
impoverished and need the money.
And so they wouldn't come within
terrorism but if they fall outside of
piracy, for example if they are acting on
the land, you would want them to be
defined as terrorists.
Another example, Narco-Terrorist.
These are the major narcotics groups, the
cartels in Latin America and Central
America.
The groups that operate through out Asia
and Russia and elsewhere.
Well they're using terrorist acts.
They use things like coercion, and they
kidnap Judges, and they threatened public
officials and they do this not because of
a political aim.
But rather, because they want to grease
the wheels of their very profitable
narcotics delivery systems.
So that wouldn't be covered.
And then what about high school pranks?
There have been a rash of cases
throughout the United States and Europe,
where people call in fake bomb threats
and these have a huge economic impact.
But Like the fake anthrax, these high
school pranks are not done for political
reasons, they are done because there are
juvenile delinquents that think they are
having fun.
And haven't learnt the lessons of how,
how much trouble they are causing for
their community and those people need to
be prosecuted too.
And what about, the mafia?
The mafia use acts of terrorism on a
widespread basis but they don't do it for
political reasons.
They do it to become rich mafioso's.
And finally there's hate crimes people
who use terrorist acts because they hate
another group, an ethnic group or a
religious group.
And they do it not for any political
reason but just to terrorize the people
they hate.
So, maybe we'll revise our draft
definition a little bit to try to get at
this.
In addition to changing civilians to
non-military targets, let's change
political aims to creating fear in the
general public.
It's broader and it would capture all of
those examples that we just discussed.
Well, there's still other problems with
the definition.
For example, should there be an exception
for people who are fighting against
repressive regimes?
It's one thing to say there should be no
terrorism allowed in a democracy, where
you can go to the ballot box if you want
to change the way things are.
But if you live in a repressive regime,
or if you live under the yoke of a
former, of a, a, another country that is
treating you as a colony and you have no
way of changing things.
Then maybe it's courageous to be a
freedom fighter, to be a, a rebel, to be
a revolutionary.
Think back for example to George
Washington.
Here is a picture of George, what did he
do?
Did he fight the British during the
American Revolutionary War in a
conventional sense?
No.
He knew he couldn't win that way so
instructed his subordinates to act as the
native Americans have done, to basically
adapt terrorist tactics.
To snipe from afar and from hidden
places, to not wear a uniform on the
battlefield.
To do all sorts of things that would be
considered acts of terrorism today.
But back then, he was a revolutionary
hero, one of the founding fathers of the
United States.
Of course we have that quote I showed you
at the beginning of the session, where
Ronald Reagan said, The Taliban.
The Taliban, these are the people who
work with Al Qaeda now, who are the major
terrorist threat to most of the world.
And Ronald Reagan said, these Gentlemen
are the moral equivalent of America's
Founding Fathers.
Well, is he right if some group is
fighting against Russian occupation, does
that change, whether they should be
considered a terrorist or not?
And then, this latest picture is what's
going on in Syria.
So in Syria, basically, the Assad
government was repressive for many years.
When the spread of democracy and the Arab
Spring finally made its way to Syria,
many people joined together and created a
spontaneous uprising.
They were joined by groups including
Al-Qaeda who were fighting against the
repressive regime, and just recently the
Europeans and the United States have to
started to funnel millions and millions
of dollars in aid to these groups to help
them topple the Syrian government.
But they're not fighting fair,they're
using assassination and bombs, civilians
have been killed, they've kidnapped
people, they're basically using terrorist
tactics.
But should they come within a general
exception because of the context?
This is a really tough question.
Maybe the toughest one of all, when
countries are trying to come up with a
definition of terrorism.
So let's maybe, add that to our
definition and it would then say that
terrorism is the intentional use or
threat to use violence against
non-military targets in order to create
fear in the general public.
And then we'll add this sentence.
It does not include acts by groups
fighting against repressive or colonial
regimes.
Now, that's going to be very, very
controversial, because just like one
person's terrorist is another person's
freedom fighter.
One person's repressive or colonial
regime is another person's democracy.
And this is going to make this very hard
to come up with a definition.
Now, one of the things that might move
along this process that's very recent is
that Security Council together with the
government of Lebanon, has created a new
international court.
That is the first international court
devoted to a terrorist act and this is
the special tribunal for Lebanon.
It sits in the Netherlands, the Hague,
where the other international tribunals
sit, most of them.
And it has jurisdiction over the bombing
attack against the former Prime Minister
of Lebanon, Mr Hariri.
And so, they have had proceedings,
they've had a lot of judicial debate.
And finally, the special tribunal for
Lebanon's chief Judge, Judge Cassese has
given us a definition of terrorism that
would govern this case.
And, and here behind me now you see the
picture of Mr Hariri and pictures of the
explosion.
The bomb was so big in that case, by the
way, 22 people died including him and it
was felt as far away as 300 miles.
So, Mr Cassese is, is pictured here and
Judge Cassese, who just passed away
unfortunately.
Was a very aggressive Judge when it came
to creating new international law.
He was also a Judge at the Yugoslavia
Tribunal who came up with one of their
key decisions, which we'll talk about in
the next session, a decision that created
a kind of liability called Joint Criminal
Enterprise Liability.
But in this context, he said, hmm, I know
that the world has been having trouble
defining terrorism, but I think that
there's enough evidence out there that
there is a definition of terrorism.
And this is the definition that he
promulgated.
He said, terrorist acts consist of the
following three key elements.
First of all, they have to a criminal act
well, such as murder, kidnapping,
hostage-taking, arson and so on.
secondly, there has to be the intent to
spread fear among the population, which
is similar to definition that we've been
talking about.
And third, it has to be an international
act.
So in Lebanon, if the case was solely a
home ground terrorist that committed this
atrocity, it wouldn't fall within the
international terrorist definition.
But if in fact there were elements from
Syria or Iran that were involved helping
these terrorists as they believe to be
the case of Lebanon then it would fall
within the international definition of
terrorism.
So, here we have another way of looking
at the definition of terrorism.
It might push the international community
forward.
I think one of the problems with this
definition is by saying this is a
criminal act, you're sort of starting out
you know how they say you should never
define a term by use of the term.
Well, here if you're going to say
something's criminal you shouldn't start
out by saying it's already criminal and
there are things that may not be criminal
or clearly criminal that should be
covered within the definition of
terrorism.
So that might be a problem.
But I think we're getting there and I
think what's important is that this is
the first time an international tribunal
has weighed in on this.
And it might be the case that the
international community will use this as
a starting point and this will move the
debate forward.
Because after all, it's been thirty years
since they proposed the definition of
terrorism and they haven't been able to
get one.
And that's why the international
community has instead just simply created
a number of narrow treaties that define
types of acts that everybody can agree on
without the general umbrella of a
definition.
Now lets turn to the other, really
interesting crime that is plaguing us in
this day and age that is modern day
piracy.
You know, the history of piracy goes back
400 years, and it includes some very
famous historical figures that many
people read about when they were
children.
you have for example the original
pirates, who were the vikings and they
would go into Ireland and England and
other places outside of Scandinavia and
they would commit traditional piratical
acts.
Then, later on, you had the Barbary
pirates.
In the United States, we have this famous
marine corps hymn.
It says from the house of Montezuma to
the shores of Tripoli, and most Americans
don't have any idea why it refers to the
shores of Tripoli.
The reason is because during the creation
of the marine corp, it's first use was
against the Barbary pirates who had been
based in Libya, they taken over really
and were a threat to the entire
Mediterranean.
And they were scourged for years until
they were totally wiped out.
Then more recently, you have other pirate
names.
Blackbeard, for example, Morgan, and the
famous Billy the Kid, William Kid.
So pirates were a thing of the past.
Most people knew about 'em.
But then all of a sudden they returned.
So here we have a graph that shows from
2001 to 2011, the number of piratical
attacks.
And the ones in red, the area that's
growing, are the Somalia pirates.
here Underneath this is a picture of the
parts of the world where pirates
generally operate.
And if you look off the coast of Somalia,
this is the area where almost all of the
oil from the Middle East must travel.
It is a major shipping area.
And because of these attacks, the
international community is suffering
about $12 billion a year in losses.
There's over 1,000 people that are
currently being held hostage, hundreds of
vessels have been captured.
This is a major problem for the world
community.
Now, piracy has a modern definition that
is in the UN Law of the Sea treaty.
And it's been defined as illegal acts of
violence for private ends committed by a
crew or passengers of one ship against
another ship, and it has to be in the
high seas.
And anybody who is defined as a pirate,
can be arrested and prosecuted under
universal jurisdiction.
Which is the kind of jurisdiction we've
been talking about in the last class
session.
Where when an offender shows up on your
territory, even if he's not your
nationals, even if the crime wasn't
against your nationals, even if he's
never been to your place territory before
you can prosecute him.
And in terms of pirates, you don't have
to wait till they come to your territory,
you can grab them on the high seas,
wherever they're found.
They are the enemies of all humankind.
Now, the situation at Somalia is
basically caused by two things.
One is that the Somalia state has been
without a functioning government for over
20 years.
It's basically a failed state, and in a
failed state you always have organized
crime that takes over.
You have rebels, you have terrorists
groups that take over and in this case,
piracy has flourished.
Secondly, the people of Somalia who are
poor, orphaned, subject to starvation and
drought, use to do a lot of fishing of
their coast.
But they claim, and there's some evidence
to back this up, that the Europeans and
the Asians and the Africans, have all
been fishing this area that was rich with
fish stocks until recently.
And now, most of the fishing is gone.
So they don't have any other options.
So if you're a poor, starving Somalian
citizen, what are you going to do?
You're going to make a lot of money
joining a pirate fleet.
And so the business model has been very
successful in particular because every
time they hijack a ship, and hold people
hostage, the insurance companies are
paying for it.
And in a few minutes, we'll talk about
how do you combat that.
But the first thing that's happened is
that a number of countries are starting
to prosecute these pirates.
And the Europeans, the United States, and
other countries are starting to apprehend
them.
In the high seas and bring them to these
countries.
So for example, we have the first piracy
court setup in Kenya, in the coastal town
of Mombasa.
The next one was set up in the
Seychelles.
And the last one that is just been set up
is in Mauritius.
And these three areas have become similar
to an international court for pirates in
this area.
And the UN has been paying a lot of money
to equip them with jail facilities, to
help modernize their court system and
there is a lot of new jurisprudence
coming out in the area of piracy.
And the incidents of piracy are starting
to go down.
Let's look at some of the, the
difficulties in the definition of piracy.
This is the famous case of the Achille
Lauro hijacking.
This happened in 1986.
There was a cruise ship registered to
Greece that was sailing around the
Mediterranean and a terrorist group, The
PLO, hijacked it, led by a PLO leader
named Abu Abbas.
This terrorist took the ship and held it
hostage for many days, saying that the
reason was that it would not free the
ship until the Israelis freed 1,000
Palestinians that the Israelis were
holding in jail.
To show that they were serious, they took
an elderly Jewish man named Leon
Klinghoffer, who was in a wheelchair, and
they shot him and they threw him
overboard.
So, the question was, was this covered
under universal jurisdiction as an act of
piracy?
And at the time many countries felt that
it was not.
Why?
Because remember the definition of
terror, of piracy says It has to be an
attack from one ship to another ship.
These PLO people smuggled themselves in,
posing as staff of the cruise ship, and
then it was more like they were doing
mutineers than actual piracy.
So they entered, the international
community said, well we've gotta close
that gap and they entered into something
that's now called the SUA convention,
SUA.
it's the maritime terrorism treaty, it
was negotiated under the auspices of the
International Maritime Organization.
And it says that when you hijack or
attack a crew ship or another civilian
boat, it doesn't matter if you're doing
it on the high seas, it doesn't matter if
you are doing it from another vessel.
It doesn't matter whether your intent is
to have money, which is part of the
definition of piracy, it's covered under
this new treaty.
Another one of these questions that has
come up a lot recently is this.
Say you're a European or American
military vessel, or an Asian vessel,
you're patroling the Indian waters, and
you come up against a vessel that's full
of piratical equipment.
Now, here is the picture of piratical
equipment.
It's basically things like grappling
hooks, special ladders, RPG's, machine
guns, things that you just wouldn't need
if you were an ordinary fisherman sailing
around in the Indian ocean.
So the vessels of the Europeans or the
Americans grabbed this thing and they say
uh-huh, you're a pirate.
And when it goes to trial the defense
says well, they weren't engaged in piracy
they weren't chugging steaming towards a
pirate, target.
You don't know where they were coming or
going you don't know what they were doing
with the goods.
Well, the question then is a really
important one.
Because almost always, you don't catch
the pirates right in the act but, you
often come against these vessels.
And what the Supreme Court of the
Seychelles did in a landmark decision was
go back to the old cases involving the
slave trade from 300 years ago.
And in those cases, they would capture
slave ships that were full of manacles
and rice and extra beds things that were
clearly to be used for slaving.
And even though they weren't engaged in
slaving at the time or about to commit an
act of slavery, which would have made
them attempting to commit slavery.
They felt that, that was enough to
exercise universal jurisdiction.
So the Supreme Court of the Seychelles
took this old precedent and dusted it off
and applied it.
And now, we've got this huge weapon
against pirate ships because any country
can exercise universal jurisdiction
against ships that have piratical
equipment.
Now, it could be that other countries
will relitigate this issue because that
was a bit of stretch in the law but for,
from the point of view of the prosecution
it was a golden magic bullet.
and they were very thankful around the
world that the Seychelles supreme court
bravely pushed the bounds of law and
created this precedent.
Well what about the fact that many of the
pirates don't ever go off into the high
seas?
In Somalia you've got certain people that
go off and they commit the acts of
piracy, but you've got others that are
support staff.
These are the ones that hold the
hostages, they prepare the vessels, they
process the money, they negotiate the
hostage releases, there's a lot of things
that go on, on land.
And so the question is, if piracy has to
be only something that's on the high
seas, how can you prosecute these people
if you can get your hands on them?
Now, these people may be more important
to prosecute than the actual pirates that
are on the ocean, because these people
may include the financiers, the pirate
kingpins, the higher ups, that recruit
the pirates.
And so, therefore, they're the ones who
need to start to prosecute but they're
safe on land.
And so, this is an issue that is
currently being litigated in several
courts around the world to decide whether
piracy and conspiracy to commit piracy
should include those who are on dry land.
And even by the time that this airs, I
think there will probably will be some
more precedent on that issue.
Now one of the biggest problems with the
pirate trade is that it is a business
model that simply works really well.
That's because when some ship is taken
hostage its insurance will pay to
negotiate the release including paying a
ransom.
So, here's a picture of a ransom.
This is an actual picture of ransom money
being dropped on a ship full of pirates
that was seized and then here are the
pirates with their boxes of money sailing
back to Somalia where they will spend it.
And in fact this is an interesting twist,
the cities where the pirates operate have
been the economically most benefited in
all of Somalia.
And international groups such as hotel
chains and others are starting to go
where the money is.
And these little cities are doing quite
well but it's all pirate money.
So the question is this, could you make
the payment of a pirate ransom an act of
terrorism or an act of piracy as well.
And there is the precedent that says
you're not allowed to, to give material
support to terrorists.
Well, since pirates are committing acts
of hostage taking, which is a form of
terrorism, maybe not for political ends
but still it, it's covered by those
conventions.
Then why couldn't the international
community just say it's not allowed?
You can no longer be paying these
ransoms.
This is a issue that's been debated in
capitals the British parliament has
debated this.
And on the one side are those that say
wow, it would be against public policy to
basically say to the pirates, go ahead
and kill our hostages.
If we could rescue them we should, and
there's the other side that says, if you
ever really want to dry up piracy the
only way you can do that is by making it
illegal to pay the pirate ransoms.
And again this is one of these big ethem,
ethical conundrums.
It's a philosophical question.
If you can same someone's life but in the
end you're going to facilitate the
pirates who will continue to attack
others.
Which way should you go?
So this is one of those issues that's
playing out even as we're having our
discussions today online.
Now, the biggest new problem in the area
of piracy is what to do about child
pirates.
Child pirates?
You're probably surprised.
In fact, a growing number of the pirates
that are being seized claim to be under
the age of 15.
And it's hard to tell whether they are or
not, because in Somalia they don't get a
lot of food, so their teeth and, and
their bones don't grow as robustly as
well fed children.
So you may have someone who's older, who,
who looks, under, X-rays, as someone
who's younger.
But why would everybody claim to be under
15?
The reason is because the international
community has for the last couple of
years been using a catch and release
approach to child pirates.
You know, if you go off and you're
fishing in a lake or in the ocean and you
find that you have on the end of your rod
a very small fish.
And you say well that's too small, I can
hardly eat that.
I'm going to send it back so it can grow
up to be a bigger fish.
That's catch and release.
And that is what the international
community has been doing with the child
pirates.
So they go out, they get caught.
And unlike the adults who get prosecuted
and sometimes given large prison
sentences, the children are simply
returned to Somalia.
Well that has only encouraged the pirate
recruiters the pirate kingpins the pirate
financiers to go out and get more
children.
And the parents of these children
basically say oh, go ahead we know you'll
be coming back because they have catch
and release.
So something has to be done about this or
else almost all the children will be
sucked into piracy, and all the pirates
will be children, and that cannot be
good.
So, one of the questions is whether you
could make recruitment and use of child
pirates in international crime.
Maybe a crime against humanity, because
it's targeting the civilian population,
it's systematic, it's widespread, and
it's got a horrible affect on people.
And it's not true that all the children
come back safely, because often the
pirate ships engage in military actions
and are sunk and the people on board,
including these children are killed.
Well there is a precedent for this, at
the International Criminal Court in its
very first case.
They prosecuted Lubanga from the Congo
for the crime of recruiting child
soldiers.
And if it's a crime to recruit child
soldiers, why shouldn't it be a crime to
recruit child soldiers who happen to be
on piratical vessels committing acts of
piracy.
So, if in fact the precedent can apply,
then you will see the courts in Mombasa
Kenya, you'll see the courts in the
Seychelles, you'll see the courts in
Mauritius starting to prosecute not just
the pirates but those who are involved in
recruiting the children.
And you know what?
The children also need to be prosecuted.
They should be treated as juveniles but
you can't just release them because, in
the end, piracy is basically a business
model, and the only way you're going to
defeat it is by taking away the engine of
the business.
You take away the ransoms, you take away
the ability for children to engage in
this without any kind of risk and only
then will you start to defeat piracy.
So, we can conclude then, our session on
terrorism and piracy.
We've learned now that these are very
urgent crimes, that are plaguing the
international community.
They are plaguing not just people in the
Indian Ocean but they're having an effect
worldwide.
The terrorists are everywhere, and it's a
battle that every country is engaged in,
and yet we've learned that these are very
complex legal issues.
But not so complex as to be
insurmountable.
And hopefully, the kinds of insights that
you have gotten today will help us push
the law along and help us enforce the law
that we have.
So that we can continue to struggle
valiently against terrorism and piracy. And that concludes our session
for today.
In our next session, we are going to be
looking at the modes of liability that
are unique to international crimes.
Until then, do your work online, do the
online simulations and role play
exercises, and I'll see you at the next
session.
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