February 21, 2010
Clipper brings blackmail charges against pirates
Clipper Project Ship Management A/S, a member of Denmark's Clipper Group, has pressed charges against the Somali pirates, who hijacked the vessel CEC FUTURE on November 7, 2008 in the Gulf of Aden. Clipper Project brought the charges through the Special International Crimes Office in Denmark headed by the public prosecutor
The CEC Future was on a voyage from Antwerp to Batam (Indonesia), when it was hijacked in the Gulf of Aden. The ship was released on January 16, 2009 after 71 days under the pirates' control. The vessel was registered under the Bahamas flag and managed by Clipper Project Ship Management A/S in Denmark. The crew of 13 consisted of 11 Russians, an Estonian and a Georgian. Though quite common in the shipping industry, the range of flag, management and various crew nationalities schallenges the judicial system of the various nations involved with regard to governing law and prosecution of the pirates, should they be apprehended.
In the case of the CEC Future, the pirates absconded with the ransom without being caught, and to date, no charges have been brought forward.
On release of the crew and vessel, Clipper instructed the crew to collect all available evidence such as DNA material, pictures, letters and other relevant items. All of the evidence was handed over to U.S. Naval Criminal Investigative Service (NCIS) when the vessel arrived at Salalah, Oman. The NCIS also participated in debriefing the crew in order to support the general evidence collection and to improve its understanding of the pirates' "modus operandi".
To Clipper's knowledge the evidence from the hijacking of CEC Future has not yet been used to prosecute pirates.
Until now the piracy prosecution process has primarily been driven by the authorities only a passive participation byshipping companies and other relevant parties
Clipper says it is now taking an active role by adding a new element to its anti-piracy effort.
Although the vessel has a different flag and management, Clipper has now found a way to bring charges forward.
It is acting through the Special International Crimes Office in Denmark which holds national responsibility for legal proceedings concerning serious international crimes.
The principle behind the charge is a paragraph within the Danish Criminal Code which states that the Code can be enforced when the criminal act is effectively taken against a Danish company: in this case Clipper Project Ship Management A/S, based in Copenhagen.
The core of the initiative by Clipper is to start criminal proceedings for blackmail, which is illegal under Danish law. Blackmail is committed both in the place where the blackmailer operates and in the place where the blackmailed company is situated. As Clipper Project Ship Management A/S is a Danish company based in Copenhagen, Danish criminal proceedings can therefore be initiated.
Instead of initiating criminal charges for all aspects of a hijacking, Clipper's approach focuses on that criminal activity by the pirates which undoubtedly can be dealt with by Danish authorities. Clipper says this approach of limiting the focus of thecase might also be open to ship owners in other cases.
Clipper says its action in bringing a charge before the Danish authorities raises a number of questions. Who will apprehend the pirates? Where should the pirates be prosecuted? What will be the consequences of the charge? Clipper has already been in contact with the Danish chair of the legal Working Group of the Contact Group on Piracy off the Coast of Somalia, who has confirmed that these issues will be taken up by the Working Group to the extent they are not already on the agenda in order for the Group to contribute to an international response to these key questions.
Clipper is awaiting a response from the Danish authorities. It expects that they will take the matter very seriously and deal with the charge both speedily and in accordance with the relevant rules.
"We also expect," says Clipper,"that the Danish authorities share this information with their colleagues in other States e.g. through INTERPOL."
Clipper is encouraging other companies that have been affected by a piracy incident to investigate whether their national laws provide a similar opportunity to bring charges against the pirates as well. Clipper firmly believes that, at a minimum, the effort will bring all of the implied challenges to the attention of the relevant governments and authorities.
Clipper says that the Contact Group on Piracy off the coast of Somalia, named Working group 2, or WG 2, is doing an impressive job of establishing the legal requirements to support the prosecution of pirates, but there remain major challenges.
CHALLENGES AND SOLUTIONS
Presently more than 100 pirates are awaiting trial in Kenya and other countries but challenges to be overcome include:
collection of valid evidence
sharing of evidence to support court cases
witness contribution during court process
financing court systems
national laws vs. international law
Typically, a wealth of evidence is collected, both during the capture of a vessel and after its release. Examples include:
DNA evidence, debriefing and interview of the crew (some times in the presence of Naval Intelligence) and photos of the pirates
The majority of shipowners have provided such evidence after the vessels have been released. However, the question still remains: How is the evidence used? And, is it shared to the benefit of all involved?
Clipper says evidence provided by shipowners should be available to all involved authorities to support the prosecution process. It seems that evidence collected by the shipowners and vessels is not being disseminated, but to the contrary, it is being used only by the service to which it has been offered. This could be rectified by establishing a shared evidence database. To Clipper’s knowledge the evidence collected from CEC Future after release, which was provided to the U.S. Naval Criminal Investigative Services (NCIS), has not been shared at all.
A major obstacle to evidence sharing is the lack of an agency that both coordinates the use of evidence and drives the prosecution process; a single point of access for a ship owner. The interface is lacking which results in evidence gathering and prosecution being handled on a “narrow basis” without required coordination to support the work.. Clipper suggests that a possible way to strengthen the entire process would be to utilize an existing organization that already holds a part of the process and possesses the required knowledge. The initiative by INTERPOL to establish a dedicated task force to coordinate the international response to the maritime piracy threat in all its facets is highly appreciated. INTERPOL already holds a part of the process, and thus, says Clipper, is an obvious choice to expand the mandate to handle a wider range of tasks.
Clipper says that resources need to be allocated to support the prosecution and imprisonment of the pirates and thinks the United Nations "seems to be the natural organization to coordinate such work."