On May 27

On this day in ...
... 1999, at The Hague, Netherlands, the International Criminal Tribunal for the former Yugoslavia indicted the sitting President of Serbia, Slobodan Milošević (right), and top aides on charges of having committed war crimes and crimes against humanity in Kosovo, a breakaway province. (Our colleague Michael P. Scharf analyzed the charges in this 1999 ASIL Insight.) The indictment came 2 months into the bombing campaign that NATO, acting without U.N. Security Council approval, launched against Serbia on account of its crackdown in Kosovo. That bombardment would end fewer than 2 weeks later. Milošević would remain in power for a time, but then would lose an election and be transferred to ICTY custody in 2001. (photo credit) His trial dragged on, and he died in his Dutch cell in 2006.

(Prior May 27 posts are here, here, here, here, and here.)

In Seychelles, in pursuit of pirates

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

VICTORIA – Greetings from the Seychelles!
Along with Professor Michael Scharf of Case Western Reserve University School of Law and Sandra Hodgkinson, Distinguished Visiting Research Fellow at National Defense University, this week I have been engaged in meetings with the Seychelles’ Attorney General and members of the judiciary about the ongoing Somali pirate prosecutions in the Seychelles’ courts.
Mike, Sandy, and I form a delegation representing the Public International Law & Policy Group, a Washington, D.C.-based global pro bono organization. (pictured below, Sandy, left, and I outside The Pirate Arms)
PILPG recently began work in the area of Somali piracy, through the creation of its Piracy Working Group. Mike, Sandy, and I, along with a number of other distinguished academics, practitioners, and conflict resolution experts, are all members of a High-Level Expert Group, and we have traveled to the Seychelles with a two-fold mission:
► First, we have presented the Seychelles’ Attorney General, Ronny Govinden, with copies of eighteen legal memoranda, addressing various legal issues related to Somali piracy.
The memoranda have been written by law firm associates and law students who work for law firms and legal institutions which form the Expert Group’s consortium of academic partners. In fact, since its inception in May 2011, the Expert Group has identified pertinent legal issues related to Somali piracy, and has outsourced the research and writing of legal memoranda on such topics to our law firm and academic partners.
Thus, here in the Seychelles, we have officially entrusted this tiny nation’s prosecutors with the fruit of our research. It is our hope that the legal memoranda will prove useful in the short future, as several Somali pirates already have been prosecuted, and additional pirates are awaiting trial in the Seychelles’ domestic courts.
The legal topics covered by the memoranda range widely – from basic issues, such as the applicability of 1982 U.N. Convention on the Law of the Sea and customary law to piracy incidents off the coast of Somalia, to more specialized discussions on, for example, relevant international regimes related to the freezing both of piracy financiers' assets and of financial gains derived from piracy.
► Second, we reached an oral agreement with the Attorney General through which his office will establish a long-term cooperation and collaboration relationship with PILPG. Mainly, the Attorney General’s office will continue to request legal memoranda from PILPG on various piracy topics, as they arise in future prosecutions.
The Attorney General was able to identify several new topics of interest during our meeting, and he was very enthusiastic about the prospect of future collaboration, which would tremendously strengthen ongoing piracy prosecutions. The Attorney General’s office has a small staff and limited resources; thus, any research assistance by PILPG will be immensely valuable toward supporting piracy prosecution.
It is becoming obvious that the Seychelles’ government is a key player in the global fight against Somali piracy, and that Seychelles’ national courts are an appropriate venue for pirate prosecutions.
Until recently, as discussed in prior IntLawGrrls posts on piracy available here, captured Somali pirates were routinely released because of a lack of viable prosecution options. Major maritime nations which patrol the Gulf of Aden and other waters in the Indian Ocean seem uninterested in prosecuting captured Somali pirates, in their domestic courts, on a true universal jurisdiction model. Piracy prosecutions are logistically difficult, politically unpopular, financially costly, and may even ultimately result in the prosecuting country’s obligation to grant pirates political asylum upon the completion of their prison sentence. Thus, unless national interests of such maritime nations are directly threatened by a piracy incident, major maritime powers are generally not prone to setting up domestic piracy trials.
Over the last few years, Kenya has been identified as a stable regional partner, capable of conducting fair pirate prosecutions in a specialized domestic court in Mombasa. Thus, several countries concluded transfer agreements with Kenya, whereby Kenya would prosecute Somali pirates upon their transfer by the capturing state to Kenyan authorities. Alas, Kenya seems ambivalent about the prospect of accepting more Somali pirates in the future – the Kenyan authorities have indicated that they no longer wish to participate in such transfer programs. While more than a hundred Somali pirates await trial in Mombasa, Kenyan authorities suggested that no additional pirates will be transferred to Kenya in the future. While there are reports that Kenya may revert to its original position of willingness to prosecute pirates, nobody is certain as to what the Kenyan government will ultimately decide.
Hence the need to identify another stable regional partner, like the Seychelles.
The Seychelles are a group of relatively small islands in the Indian Ocean. (map credit) While not in direct proximity of Somalia, the Seychelles have nonetheless been negatively influenced by the development of piracy in this region. Pirate attacks have intensified and proliferated geographically, and Somali pirates have attacked boats and yachts sailing close to the Seychelles’ waters.
Moreover, the Seychelles derive most of their national revenue from tourism. (Pictured at right, a 100-year-old sea turtle at a Seychelles sanctuary; they used to be everywhere but today most live in captivity (sadly).) Any criminal activity taking place close to the Seychelles, like Somali pirate attacks, has the potential to deter tourists attracted to the Seychelles’ beaches and pristine turquoise waters and to thus undermine the development of tourism in this otherwise isolated region of the world. Thus, it will be in the interests of the Seychelles’ government to drastically reduce the number of pirate attacks in these waters.
Prosecutions in the Seychelles’ courts, pursuant to transfer agreements like those that have been in place in Kenya, constitute an important step in ensuring that pirate attacks do not go unpunished.
The Seychelles’ Attorney General confirmed to us the existence of transfer agreements between the Seychelles and the European Union, as well as the United Kingdom. Pursuant to these transfer agreements, the Seychelles has accepted pirates detained by the EU or UK forces on the high seas. Eleven successful piracy trials have already taken place, and 51 pirates have been convicted in the Seychelles’ courts. Several other pirates are currently detained and awaiting trial.
Finally, we ended our visit with a meeting with two members of the Seychelles’ judiciary. One of these two judges, Seychelles Supreme Court Justice Duncan Gaswaga, head of that Court's Criminal Division, has presided over several piracy trials, and was kind enough to show us two courtrooms which are currently being used for piracy prosecutions. (at left, front of Supreme Court, among the oldest buildings on Mahé, the Seychelles' largest island, on which is located the capital, Victoria; and Mike Scharf and I at the Court)
We explored the possibility of future assistance by PILPG to the Seychelles’ judiciary, in the form of amicus briefs or other research memoranda useful to support judges in their efforts to preside over piracy trials.
The trip was successful, and it will be my pleasure to report more on the topic of Somali piracy upon my return to the United States.

Terrorism said to be defined

Terrorism law is the central concern of the Netherlands-based Special Tribunal for Lebanon, an internationalized tribunal about which we've posted in the past. Established in 2007, it is charged with investigation and adjudication stemming from the 2005 assassination in Beirut of Prime Minister Rafik Hariri.

An ASIL Insight by our colleague Michael P. Scharf reports that last month the tribunal's "Appeals Chamber handed down a landmark ruling"; to be precise, it sets forth what its judges consider to be "the customary international law definition of terrorism." Entitled Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (available in Arabic, English, and French here), the 154-page decision was written by President Antonio Cassese (below right) (prior IntLawGrrls posts) on behalf of a five-man panel (men make up all the judges of this tribunal; a couple of the prosecution and defense officers listed are women).
Scharf quoted paragraph 85 of the decision -- issued in answer to request of the pre-trial chamber considering whether to confirm a pending indictment -- which sets forth the elements of the definition of terrorism at customary international law as follows:

► '[P]erpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act';
► '[I]ntent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it'; and
► '[T]he act involves a transnational element.'

Scharf predicted that the definition will have ramifications that extend past the work of this tribunal -- into the work of the U.N. Security Council Counter-Terrorism Committee established pursuant to Resolution 1373 (2001), and even into national legal systems.
That is not an entirely comforting thought.

The definition, at least as stated above, would appear to know few bounds:

► The definition would seem to sweep in state as well as nonstate actors. That should make more than a few countries uncomfortable.
► What's more, the definition would seem potentially applicable to many transnational offenses not colloquially understood to be terrorism. To name one example, much violence committed in the course of cross-border smuggling enterprises would seem to fit the bill.
Those concerns are reflected in definitions set forth elsewhere on the subject.
► For instance, 22 U.S.C. § 2656f(d)(2), which requires annual country reports on terrorism, withdraws many state actors from the net by stating:

the term 'terrorism' means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents ...

► The catchall definition set forth in Article 2(1)(b) of the 1999 International Convention for Suppression of Financing of Terrorism also is narrower, for it applies only to acts

intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.

Arson of a structure known to be unoccupied -- or of a building occupied by combatants -- would be excluded from the Convention's definition, but not, it would seem, from the definition advanced in the new judgment from the Special Tribunal for Lebanon.
These 2 counterexamples of state practice stand in tension with the tribunal's contention that its definition constitutes customary international law.
The tribunal's decision, Scharf reports, further endorsed at least some aspects of the encompassing accomplice-liability doctrine of "joint criminal enterprise," about which we've frequently posted. That embrace of expansive culpability, coupled with the breadth of the definition stated above, creates a risk that the stigma of "international terrorist" could be applied well beyond advisable limits.

On April 5, ....

... 1930, Mohandas K. Gandhi ended a 3-1/2-week, 240-mile march to the seaside at Dandi, where the next morning he scraped salt from the shore in defiance of salt-tax laws. This nonviolent Salt Satyagraha, which began with 78 followers and ended with thousands, was a watershed moment of resistance to British rule in India.
... 1947, Gloria Macapagal-Arroyo, President of the Philippines, was born.
... 1999, Libya surrendered 2 suspects in the 1988 bombing of Pan Am flight 103 over Lockerbie, Scotland, in which 270 aboard were killed. As detailed by our colleague Michael P. Scharf in 2001, the suspects later were tried before Scottish judges applying Scottish law at an abandoned U.S. military base in the Netherlands.