Accused in Maersk Alabama incident accused of additional acts

Late this afternoon came news that Abdiwali Abdiqadir Muse, the Somali involved with the attack on the Maersk Alabama last April, is now accused of having taken part of in two additional hijackings of vessels off the Horn of Africa's coast. The AP report says that federal prosecutors allege Muse was involved in boarding one vessel in March and another in April. The names of the vessels were not made public, however the allegations are that when the pirates boarded the first ship, Muse threatened to kill the crew with, "what appeared to be an improvised explosive device." After taking control, Muse and the others are alleged to have then used the vessel to successfully hijack the second ship, which is reported to still be in the hands of Somali pirates.

Though The New York Times post is headlined "NY Prosecutors File More Charges in Piracy Case", this appears to not be quite correct: As Crain's New York Business explains (via another AP report), while Muse is alleged to have participated in these earlier incidents, the indictment filed in Manhattan today does not actually add any additional charges to the original ones the Somali has already plead not guilty to. Instead, his alleged participation in these other incidents has been added to one of the ten counts Muse is currently facing, namely the charge of conspiracy to seize a ship by force.

There appear to be two reasons for today's actions on the part of US federal prosecutors: One is to establish that Muse had been involved in previous acts of piracy, establishing a pattern of criminal behavior that goes beyond just the Maersk Alabama incident. And the second reason seems to be in order to establish the suspect's age, as Muse is reported to have told one of the first two crews that he was 24 years-old. When Muse was first arraigned in New York last April, his defense lawyers said he was just 15 and should therefore be tried as a juvenile, while prosecutors said the man was at least 18.

Some might wonder why it is taking so long to begin Muse's actual court case, even though it's not uncommon for it to take years before a suspect finally stands before a judge and jury. In this particular case, today's news reveals that the investigators and prosecutors involved have clearly been doing a lot of work, the kind of diligent collaborative work that goes on quietly behind the scenes. Putting together all the elements to effectively prosecute a case of modern-day piracy in an American courthouse is, in itself, very difficult. Acquiring sufficient evidence for the same judicial system from other acts of suspected piracy that may have occurred out in the Indian Ocean is even harder.

But it's a sign that some people are keeping tabs on what's happening out there, in the hope that suspected pirates can be eventually brought to justice. And though it may sound boring, the acquisition of forensic evidence is a vital part of combating acts of maritime crime like piracy. The formal use of due process and transparency of legal actions are parts of what define nations seeking to deal with criminal activities wherever they may occur.

Are captured pirates being treated inhumanely?

The manner in which the international community opts to prosecute those suspected of carrying out pirate attacks is a contentious issue. Some nations have been reticent about bringing home individuals to face legal prosecution within their judicial systems, preferring to let the other countries, say Kenya, deal with matters. A few, such as the United States, France and the Netherlands, have been willing to take on the issue in their own court systems. But everyone is aware that anyone charged with a maritime criminal act in places like the seas off the Horn of Africa must be dealt with as fairly as sovereign judicial systems can allow.

There's a very simple reason for trying to do this: We are seeking to replace disorder and anarchy on the seas with the rule of law, to restore security by making the pirates understand that their are ramifications to their acts that will not be tolerated.

However, there are those who believe that the international community's actions are perhaps somewhat 'inhumane' against suspected pirates. The German-based group Ecoterra International put out a communiqué yesterday in which they protest against the, "[O]ngoing rendition program concerning so called 'pirates', against their inhumane treatment in appalling prisons and against the ongoing violations of human rights in these piracy-cases."

The timing of Ecoterra's communiqué may have something to do with the recent cases of 22 Somalis brought before a Yemeni court to face charges of suspected piracy and burglary. According to the press release, the prisoners were apparantly not allowed to telephone relatives when first incarcerated and had no one to translate the court proceedings into Somali.

The use of the term 'rendition program' is a calculated effort by Ecoterra to equate the treatment of suspected pirates with that of detainees at Guantanamo Bay. It's a curious - and naive - comparison to make for three reasons: The conditions in Guantanamo are much better than in Yemeni, Kenyan or Somali prisons; There is little likelihood that suspected pirates will be exposed to waterboarding or other similar treatments; And the conditions pirate suspects are being held within Western jails, such as in Holland, France or America, are the same as any nationals there would endure.

The worries that Ecoterra has about the treatment of, in the Yemeni cases, 22 Somalis plainly pales in comparison to the treatment of all those currently being held hostage by pirates (a number which may be around 200; see the most recent Reuters FACTBOX here). But there is a need to assure that the prosecutions and handling of suspects are done in accordance with international standards.

This is one of the reasons I've worried in the past about dumping captured individuals into the Kenyan judicial system, and is another reason why I suggest that the international community come together to create an Admiralty Court that could function along the lines of the various international tribunals that have been overseen by the United Nations. This in no way replaces the abilities of nations to continue to prosecute maritime criminals within their own systems if they so desire, but allows for a greater sense of transparency that could offset criticisms like Ecoterra's.

The Ecoterra communiqué wraps up with their perspective on the future if suspected pirates continue to be treated 'inhumanely': "If such grave violations continue, the international community will not only loose any moral right to capture and prosecute sea-bandits but cause a further decline in the observation of human rights in Somalia also toward their own nationals - with escalating violence and mistreatment."

Being tortured is inhumane on any level. Being a mariner held captive against your will by pirates is inhumane on any level. Not being able to call your relatives for a few weeks when you're apprehended attacking a merchant ship is not inhumane. Being stuck in a dank African or Arabian prison is one of the costs of going on the account.

And as for the international community's actions against piracy causing a decline in the way Somalis treat one another? Well, Ecoterra must be joking. The human rights situation in Somalia has little to do with the counter-piracy measures used by foreign navies. It has everything to do with the mistreatment of ordinary Somalis by criminal gangs and militia groups.

Addendum:

The Yemen News Agency SABA reports that another oil tanker was attacked in the Red Sea, but the pirates were repulsed by Yemeni forces. This follows an attempt by pirates to seize two tankers last Saturday.

And The Sunday Telegraph yesterday reported that the first deputy prime minister of the Somali Transitional Federal Government (TFG), Abdulrahman Adan Ibrahim, told the news outlet that pirates allied to al-Shabaab are helping to smuggle foreign al-Qaeda fighters into the region.

Somali pirates allowing themselves to be captured?

Abduwali Abdukhadir Muse, the lone Somali to survive the Maersk Alabama incident, was indicted today by a Manhattan grand jury on ten charges, including piracy and kidnapping. He will be arraigned in a District Court on Thursday, with his trial expected to commence in the fall. Muse faces life in prison if convicted on the piracy charge. Reuters reports that one of his lawyers is looking into the chance that Muse was "kidnapped and taken hostage" by American forces, a somewhat specious allegation given that the Somali man had been part of the armed group holding Captain Richard Phillips against his will.

Meanwhile, in The Netherlands, five other Somalis accused of attacking a vessel registered in the Dutch Antilles, are being prepared for their own trial under Dutch laws. The men were captured after a January incident involving the cargo ship Samanyulo, and at least two of the accused seem quite happy to be incarcerated in a European country. The Telegraph has a piece in which one of the men says that life in a Dutch jail is "good" in comparison to what things were like back home in Somalia.

The attorney of another is quoted as saying that his client is relieved to be in a Western prison where he feels safe. "His own village is dominated by poverty and sharia law but here he has good food and can play football [soccer] and watch television. He thinks the lavatory in his cell is fantastic." This accused is apparently considering sending for his wife and children to come to Holland as soon as he's released - which presumes the man will plead guilty and/or be sentenced to a prison term. His lawyer considers the man to be a Robin Hood driven to piracy to support his family.

All of this has led an international criminal law attorney, Geert-Jan Knoops, to wonder whether pirates will voluntarily surrender to Western naval forces in order to get to a better life, even one behind bars. It's not such a strange idea, and one that you can bet has been discussed in detail by a variety of legal experts prior to all the naval warships deploying to the seas off the Horn of Africa. Indeed, it's one of the reasons we've seen some nations hand over captured pirates to Somali authorities, or release them outright. It's the unwritten worry that once these suspects are brought to a Western nation to face legal trials, they'll never go home again.

Making a criminal case against pirates

While discussions abound about the intelligence-gathering aspects of pirate gangs and whether they're all working together - which, in my mind, is doubtful - I'd like to return to an earlier issue: what to do with captured suspects.

We've seen another incident this week in which Spanish naval authorities opted to hand over some suspects to Kenyan authorities (see here), and American and South Korean forces have captured 17 others (see here). What will happen as a result of the latter incident is still uncertain, but it's not unlikely the Somalis will be turned over to Kenyan authorities.

There is a certain amount of anger that lingers in some quarters about the apparent lack of follow-through on the part of various nations to bring suspected pirates before the judicial system and prosecute them for their actions. After all, why bother capturing pirates if we're not going to incarcerate them if proven guilty of their crimes?

Welcome to the quagmire of addressing an age-old criminal endeavor in the modern era. We no longer hang pirates from the yardarm arbitrarily or execute them summarily. In fact, we haven't done either - in Western nations - for a couple of hundred years. We have relied, instead, on due process and the definitive proof of guilt, a benchmark of an advanced, civilized society. So for those advocating a "hang 'em high" position for pirates, I say settle down. We are better than that.

Okay, but what do we do? Well, we shouldn't rely on naval forces to be criminal investigators, for one. Those sailors and marines working in the seas off the Horn of Africa are not police officers - they are warriors. That's what we've trained them to do. Their job descriptions do not include gathering evidence for a criminal investigation. We should expect them to fulfill the obligations of warriors. (I recall my brother's thoughts after his first tour of duty on a UN peacekeeping mission: "The most useless six months in my career.")

So why not emplace individuals with more criminal investigation aboard warships in the region? My Canadian colleague Patrick Lennox has put forth just an idea in a recent paper (see here), suggesting that Canadian authorities consider putting RCMP (our famous 'Mounties') teams on our warships. They're better equipped to gather evidence for a criminal prosecution than most naval elements. We've done this before, in Canada, putting RCMP teams on Coast Guard ships to deal with various domestic issues. Besides, every nation with warships in the region has criminal investigation divisions capable of doing likewise, with personnel better able to put together the means to better prosecute suspected pirates.

This is not in any way a slight at the naval forces in the region, merely a suggestion to augment their operational capabilities. Remember that piracy is, in legal terms, a national issue, up to individual nations to deal with. The better prepared we are to deal with it the more effective we are.