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The long arm of the antipiracy law

Experts contend Japan has duty to catch, and try, Somali hijackers

by Masami Ito

Staff Writer

Captured half a world away, off the coast of Oman in the Indian Ocean, four Somalis were sent to Tokyo to stand trial for piracy after a failed attempt to hijack an oil tanker. Three have already been convicted by the Tokyo District Court.

Yet not one of the 24 crew members was Japanese, and the tanker was registered in the Bahamas. The sole connection to Japan was that the ship was operated by Mitsui O.S.K. Lines.

Why, then, is Japan spending time and money to try the men here? Experts respond it is the nation’s duty, as a member of the global community, to suppress Somali pirates.

“Pirates have existed for a very long time and from the old days, they have been called the enemies of all mankind,” said Kazuhiro Nakatani, an international law professor at the University of Tokyo. “It is an extremely important legal interest for the international community to maintain safety and order at sea.”

The Gulf of Aden is an extremely important sea lane that connects Asia and Europe. An estimated 20,000 ships sail through annually, and about 2,000 of them are Japan-related carriers.

For the past few years, Somali pirates have accounted for about half of all piracy-related incidents around the world. In 2011, Somali pirates were involved in 237 of 439 cases, according to data collected by the International Chamber of Commerce’s International Maritime Bureau (IMB).

These pirates are nothing like Captain Hook in the Peter Pan children’s stories, or Johnny Depp’s Jack Sparrow in “Pirates of the Caribbean.” They are usually armed with guns when they hijack ships and, in most cases, take the crew hostage.

Article 100 of the United Nations Convention on the Law of the Sea stipulates that all countries should cooperate “in the repression of piracy on the high seas or in any other place outside the jurisdiction of any state.”

In 2009, Japan stepped up with an antipiracy law that stipulates sentences of between five years to life in prison for those found guilty of piracy. If anyone is killed during an act of piracy, the death penalty can be invoked.

The Somali men sent to Japan for trial were first taken into custody by U.S. forces, who handed them over to the Japan Coast Guard, which arrested them in accordance with the antipiracy law.

“There are not that many countries with domestic antipiracy laws . . . and (the international community) paid attention to Japan’s 2009 law,” Nakatani said. “The fact that Japan took (the alleged pirates) into custody and is trying them here under the antipiracy law shows that Japan is intent on taking firm measures against piracy.”

On Monday, the Tokyo District Court sentenced a Somali defendant, whose name has been withheld because he is a minor, to five to nine years, in accordance with Japanese law concerning juveniles. Earlier this month, the same court sentenced two other Somali men — Mohamed Urgus Adeysey and Abdinur Hussain Ali — to 10-year terms.

The remaining defendant will stand trial next month.

While the rulings may seem harsh for a failed ship hijacking in which no one was injured, presiding Judge Katsunori Ono ruled that the crew members were unharmed only because they had followed antipiracy procedures. The Somali men shot the radar mast and the door to the captain’s cabin, a “dangerous and malicious” act.

Therefore, the judge said he determined that the sentencing should be somewhere between the maximum penalty — life, in the case of Adeysey and Ali — and the minimum of five years. The two men have appealed their sentences to the high court.

“The maximum penalty is life imprisonment or death if someone is killed — the law considers piracy a very serious crime,” Nakatani said. “True, Japan is very different from Somalia in many ways, including its culture and customs but Somalia is in a state of collapse . . . and I don’t think there is any other solution but for these men to serve time in Japan.”

Six citizens and three professional judges are hearing these unprecedented trials under the lay judge system. After the two rulings, the lay judges admitted their initial apprehension but also said they came to believe it was their duty to try the defendants.

“Something didn’t feel right at first and I questioned why we were trying (the piracy cases). But I came to realize that Japan’s goods were in danger of being taken and that piracy is not just some other country’s business,” one of the lay judges said.

The defendants’ lawyers, on the other hand, questioned the deterrent effect of jailing Somali pirates in Japanese prisons and sought suspended sentences. But experts supported the court’s ruling and argued that Japan would be neglecting its duties by sending the men back to Somalia.

“Pirates must be tried . . . and releasing or handing down suspended sentences do not coincide with international law’s fundamental view,” said Shigeki Sakamoto, an international law professor at Kobe University. “Japan cannot just stand there and do nothing — pirates would continue existing forever otherwise.”

According to the Defense Ministry, about 30 countries have sent warships to the coast of Somalia and the Gulf of Aden. Japan has also been sending Maritime Self-Defense Force elements and the Japan Coast Guard to protect ships in the region.

As a result, the IMB’s most recent data for 2012 show that the number of piracy cases fell to 297, of which 75 were attributed to Somali pirates, a substantial drop from the previous year. The IMB concluded in its report that the antipiracy measures taken in the region have played a major role in the decrease.

Sakamoto, however, noted that many nations take a “catch-and-release” policy toward pirates, who often dump physical evidence such as ladders and weapons into the ocean before they’re captured. Even if they are taken into custody, the absence of domestic antipiracy laws prevents them from being tried.

The United Nations Security Council adopted a series of resolutions urging member states to join hands to deal with Somali pirates. A 2010 U.N. resolution affirmed that “the failure to prosecute persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia undermines antipiracy efforts of the international community.”

Critics agree it is too costly and time-consuming for Japan to assume responsibility for Somali piracy cases on behalf of other countries, noting they should be restricted to grave cases related to Japan. But, meanwhile, considering Somalia’s state of collapse, its neighbor Kenya has been flooded with piracy cases and at one point even stopped accepting any more.

In the long run, the international community needs to help Somalia rebuild, Sakamoto said, but an urgent goal is to assist in the capacity-building of neighboring countries, including Kenya, the Seychelles and Tanzania, to ensure that the pirates are tried appropriately and fairly.

“The current situation in Somalia must change in order to establish a society that does not produce any more pirates, but that will take a long time,” Sakamoto said. “Helping neighboring countries build their capacity (to prosecute and try pirates) instead of holding the trials in a faraway country like Japan is much more effective . . . and is the shortcut to cracking down on and deterring piracy.”

  • disqus_9DMNnki8Mq

    in the article’s picture, that’s the first time i’ve seen the imperial flag on a japanese official.

    • Shane Reierson

      It is used as Japan’s naval ensign.

  • doobieibood

    These pirates are nothing like Captain Hook in the Peter Pan children’s stories, or Johnny Depp’s Jack Sparrow in “Pirates of the Caribbean.” They are usually armed with guns…”

    This is different from movie pirates how?

  • http://www.facebook.com/robert.hall.3762 Robert Hall

    Under the anti-piracy laws the Japanese have all the legal power to stop paul watson and his sscs from their violent acts against the whaling fleet in the southern ocean.

  • AnimuX

    Sea Shepherd’s actions are not acts of piracy — and labeling them as pirates for the purpose of leveraging charges is contrary to the intent of anti-piracy laws — like prosecuting street protesters for acts of vandalism as terrorists.

    Judge Kozinski, of the U.S. 9th Circuit Court of Appeals, reasoned that he could expand the meaning of ‘private ends’ to include environmental protest.

    This has been addressed before — contrary to Kozinski’s opinion.

    For example:

    “Likewise, the ‘private ends’ criterion seems to exclude acts of violence and depredation exerted by environmentally-friendly groups or persons, in connection with their quest for marine environment protection. This seems to be clearly a case in which the ‘private ends’ criterion seems to be excluded.”

    THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW
    Vol 18, No 3, 378 – 379

    Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal Aspects
    H.E. Jose´ Luis Jesus
    Judge, International Tribunal for the Law of the Sea, Hamburg