Virtual witness confrontation in criminal cases: a proposal to use videoconferencing technology in maritime piracy trials.

Author:Dutton, Yvonne M.
Position:IV. The Problem of Modern Maritime Piracy and the Need to Encourage States To Use the Available Laws to Prosecute Pirates Instead of Releasing Them through VI. Conclusion, with footnotes, p. 1317-1340

    Having outlined generally some approaches taken by various international criminal courts and by federal courts in the United States to analyze the issue of whether to permit adult prosecution witnesses to testify remotely at trial using two-way, live VCT, this Article now moves to a discussion of the modern piracy problem and the reluctance of states to prosecute. In particular, it discusses how issues relating to the difficulties associated with mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe have negatively impacted states' willingness to prosecute piracy cases. This Article further addresses how a rule allowing remote prosecution-witness testimony in some circumstances can better facilitate the prosecution of these cases and also encourage more states to undertake the burden of bringing pirates to justice.

    1. The Continuing Threat of Modern Maritime Piracy

      The continuing threat of pirate attacks on ships and crews makes traveling in the world's shared sea lanes increasingly dangerous. According to the International Maritime Bureau (IMB) Piracy Reporting Centre, between January 2007 and December 2011, pirates staged some 1,850 attacks worldwide. (172) During the last three years, the number of attacks has remained above 400 per year--a number that exceeds the number of reported attacks in 2007 by approximately 50 percent. (173) In fact, from January to March 2011, reports showed that Somali pirates had already staged ninety-seven attacks--more than one per day during that time period. (174) In addition, most pirate attacks now involve the use of weapons. (175) Pirates used guns in 245 attacks in 2011 (more than half of the total number of attacks that year), but they used guns in only seventy-two attacks in 2007 (about 25 percent of the total number of attacks in that year). (176) Nor are the attacks without victims. In 2007, pirates held some 292 crew members hostage. But, in each year thereafter, more than 800 crew members have been held captive while pirates negotiated their release. (177) Finally, the ransoms paid to pirates "have increased sevenfold in the last five years": average ransoms increased from about $600,000 in 2007 to about $5 million in 2011. (178) In other words, over time, the threat of modern maritime piracy is increasing, rather than decreasing. (179)

      Moreover, the threat of modern maritime piracy is broad in its reach. As Rear Admiral Brian M. Salerno explained, "[A] single piratical attack affects the interests of numerous countries, including the flag State of the vessel, various States of nationality of the seafarers taken hostage, regional coastal States, owners' States, and cargo shipment and transshipment States." (180) The evidence from 2011 alone supports the Rear Admiral's statement. The IMB reported that in 2011, pirates attacked ships bearing the flags of fifty-six different countries (181) in the waters off the coasts of Somalia, Indonesia, Malaysia, the Philippines, Singapore, Vietnam, Bangladesh, India, Benin, and Nigeria, among other places: (182) "As of 31 December 2011, suspected Somali pirates held 11 vessels for ransom with 193 crew members of different nationalities as hostage." (183)

      A brief description of just two pirate attacks can help illustrate the multinational reach of maritime piracy. On February 9, 2011, pirates attacked the Greek supertanker MV Irene 900 miles off the coast of Somalia. When attacked, the MV Irene was carrying 2 million barrels of Kuwaiti oil destined for the United States and estimated to be worth $200 million. The twenty-five-member crew included seventeen Filipinos, seven Greeks, and one Georgian. (184) Some two months after being taken hostage, and after the pirates received an astounding $13.5 million ransom payment, the ship, cargo, and crew were released. (185) On April 8, 2011, just one day after the hostages from the MV Irene were released, ten pirates stormed the MV Susan K, a German cargo ship registered in Antigua & Barbuda. The MV Susan K was attacked thirty-five miles off the coast of Oman while travelling from Mumbai to Port Sudan with a crew that included four Ukrainians and six Filipinos. (186) Seventy days after being captured, and after pirates received an approximately $4 million ransom payment, the MV Susan K and its crew were released. (187)

    2. The International Law Authorizing Piracy Prosecutions

      International law provides many legal tools for prosecuting acts of maritime piracy. Piracy is the oldest crime to which universal jurisdiction applies, (188) and all states may punish acts of piracy occurring on the high seas even if the state has no specific nexus to the offense. (189) Exercising universal jurisdiction over acts of maritime piracy is warranted because of the general heinousness of the crime and the fact that it is directed against ships and persons of any and all nations--disrupting international trade and commerce. (190) Thus, states may use their own domestic laws to prosecute and punish those who commit the crime of maritime piracy, regardless of the nationalities of either the suspected pirates or their victims. (191)

      Universal jurisdiction over piracy offenses is codified in an international treaty--the UNCLOS (192)--to which most states belong. (193) Pursuant to Article 105 of UNCLOS, any state may seize pirate ships and arrest and prosecute pirates. (194) Article 101 lists the acts which constitute piracy and over which states may exercise universal jurisdiction as follows:

      (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

      (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

      (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

      (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

      (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). (195)

      In addition, under Article 103, a ship is a pirate ship "if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101." (196)

      In sum, UNCLOS essentially defines piracy as (1) an illegal act of violence or detention, (2) committed for private ends, (3) on the high seas, and (4) directed against another ship. (197) In addition, under Article 100, states are actually required to cooperate in the repression Contemporary Practice, 42 VA. J. INT'L L. 81, 110-11 (2001) ("Positive international law in the twentieth century has clearly established universal jurisdiction for piracy."). of piracy to the fullest possible extent, (198) a mandate which in theory suggests they should assist in the arrest and prosecution of pirates.

      The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) (199) addresses some additional acts of maritime violence not covered by UNCLOS. (200) Drafted in response to the Achille Lauro incident when Palestinian terrorists hijacked an Italian cruise liner, (201) the SUA Convention prohibits both completed attacks on ships and attempts to do the same. (202) Under Article 3 of the SUA Convention, a prohibited offense is committed by anyone who (1) "seizes or exercises control over a ship by force or threat thereof or any other form of intimidation," (203) (2) "performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship," (204) or (3) attempts to do any of the above. (205) Unlike UNCLOS, the SUA Convention extends the definition of piracy to include attacks within territorial or archipelagic waters or in port, (206) as long as the ship is scheduled for international navigation. (207)

      On the other hand, in contrast to UNCLOS, the SUA Convention does not provide for the exercise of universal jurisdiction. (208) Only signatory states may prosecute violations of the SUA Convention, and they need some nexus to the offense in order to do so. States may only prosecute using the SUA Convention when (1) the offense was against a ship flying its flag, (2) the offense occurred in its territory, (3) the offense was committed by a national of the state, or (4) a national of the state was a victim of the offense. (209) Accordingly, if a signatory state with the required nexus to the offense refuses to prosecute, or if the states with a nexus to the offense have not ratified the SUA Convention, pirates and maritime terrorists will go unpunished notwithstanding the SUA Convention's increased territorial coverage. (210)

    3. The Tendency to Release, Rather than Prosecute, Captured Pirates

      Despite this international legal framework authorizing states--and, indeed, encouraging them--to prosecute maritime piracy offenses, states are more inclined to release the pirates they capture than to try them in their own domestic courts. Since 2008, numerous states have provided ships, crew, money, and technology to support a variety of naval forces that conduct counter-piracy operations in the Gulf of Aden and the Indian Sea. The multinational naval force CTF150 was the first to conduct counter-piracy operations in late 2008. In January 2009, it was replaced by another multinational naval force, CTF-151. (211) In 2008, the European Union launched its own combined naval force (Operation Atalanta) aimed at "deterr[ing], prevent[ing], and repress[ing] acts of piracy and armed robbery" in the seas off the coast of Somalia. (212) Since 2008, the North Atlantic Treaty...

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