Reto A Dürler
Piracy has been put back onto the agenda of maritime shipping and has become a key issue. In this context, the question arose as to whether the legal framework against piracy could also be applied to terrorism. Even if the notion of piracy had for a long time been absent from the domestic legislation of most countries, both the Convention on the High Seas 1958 (HSC)1 and the United Nations Convention on the Law of the Sea 1982 (UNCLOS)2 circumscribe it in a precise definition. Article 15 of the 1958 Convention and Article 101 of the 1982 Convention define piracy as:
(1) Any unlawful acts of violence, 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: (a) on the high seas against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.
Piracy is the oldest, and one of the very few crimes, for which universal jurisdiction was recognized under customary international law long ago. Universal jurisdiction was historically justified because pirates are considered to be hostes humani generis, which means enemies of all mankind. Similar criteria should be applied to terrorists, as they are also a threat to all States. However, while piracy and terrorism at sea have many similarities and are both forms of violently interfering with shipping, there is a marked difference between the goals of pirates and terrorists: pirates seek financial gain, while terrorists strive towards a political or ideological aim. This fact may justify a different legal approach.
As the scourge of modern piracy became widespread, a number of scholars in international public law came to the conclusion that terrorists did not act ‘for private ends’ and, contrary to piracy, they were not interested to seize a ship for financial or other gain. In their view, this showed that there was an obvious legal lacuna which could only be filled by creating a separate convention relating to maritime terrorism. They were inspired by the international legislation concerning civil aviation. As a result, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation was adopted. It was based on previously existing anti-terrorism conventions, namely in the field of civil aviation. In fact, terrorism was and still is addressed in international public law in an individual approach. This means that there are some sixteen Conventions and Protocols within the United Nations to combat various specific forms of international terrorism. And a clear definition of terrorism has never been formulated for fear of unnecessarily limiting its scope.
13.2 The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol
As with most international instruments, one particular incident prompted the creation of the original SUA Convention. On 7 October 1985, the Italian-flagged cruise-liner Achille Lauro was hijacked near the port of Alexandria in Egypt. A hostage was killed. In the wake of this incident, the member States gave the International Maritime Organization (IMO) the mandate to improve the protection of seagoing vessels from terrorist attacks. Thereafter, a new international legal instrument was negotiated called the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (SUA Convention 1988).3 The Convention protects ships, their passengers, and their cargo from terrorist attacks. The States which have subscribed to the Convention are obliged to punish or to extradite persons who perpetrate terrorist acts. In honour of the Italian flag ship which had been attacked near Alexandria, the SUA Convention was negotiated and adopted in Rome on 10 March 1988.
13.2.1The SUA Convention 1988
The main goal of the SUA Convention and its Protocol is to fight international crime on an international level. In the area of shipping, this aspect had never been considered to be a major issue in the Legal Committee of IMO up until the Achille Lauro incident. In civil aviation, the problem of international crime had been recognized by the International Civil Aviation Organization (ICAO) many years earlier due to hijackings of commercial airplanes. There are many conventions in aviation law which deal with international crime in a comparable way: the Convention on Offences and Certain other Acts committed on Board Aircraft 1963,4 the Convention for the Suppression of Unlawful Seizure of Aircraft 1970,5 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation 1971,6 and the International Convention against the Taking of Hostages 1979 (Hostage Convention).7
The main scope of the SUA Convention and its Protocol lies in the basic principle of aut dedere aut judicare, which means that every contracting State which detains a person that has perpetrated a terrorist act on the High Seas has the obligation for the person either to be subject to a judicial proceeding or be extradited.
The Convention defines ‘ship’ in broad terms as any type of vessel which is not permanently attached to the seabed, including dynamically supported crafts, submersibles, or other floating crafts. Excluded from the scope of the Convention are warships, ships owned or operated by a State when being used as a naval auxiliary or for customs and police purposes, or ships that have been withdrawn from navigation or laid up. According to the provisions of the Convention, the following relevant elements of crime fall under the scope of the Convention:
The Convention is only applicable if the above-mentioned elements of a crime are fulfilled unlawfully and with intent.
The geographical application of the Convention is limited to ships navigating or scheduled to navigate into, through, or from waters beyond the outer limit of the territorial sea of a coastal State, or the lateral limits of its territorial sea with adjacent States. In all other cases, the Convention also applies when the offender or alleged offender is found in the territory of a State Party other than the State in whose waters the offence occurred. It was the intention of the involved States Parties to elaborate a comprehensive convention with regard to its geographical application. According to Article 4, the entire international ship traffic is covered by the Convention. Of no relevance is the scene of offence as long as the ship navigates according to its sailing list on an international path. Even if an offence committed under the Convention has taken place within the territorial sea of a State, the Convention would still be applicable. If a crime does not fall within the geographical scope of the Convention, it will still be applicable in cases where the offender or alleged offender is arrested in a country different from the country where the crime has taken place. This regulation corresponds with the provisions contained in the above-mentioned conventions of civil aviation.
States Parties are required to make the offences punishable by appropriate penalties that take into account the nature of the different offences. Measures to establish jurisdiction over the offences shall be taken when: i) the offence is committed against or on board a ship flying the flag of the State at the time the offence is committed ii) in the territory of that State, including its territorial sea, iii) by a national of that State or by a stateless person whose habitual residence is in that State, iv) in an attempt to compel that State to do or abstain from doing any act or v) when a national of that State is seized, threatened, injured, or killed during the commission of the offence.
Once jurisdiction has been established, States shall take the offender into custody and immediately make a preliminary inquiry into the facts. Article 7 contains procedural provisions. If the offender or alleged offender is taken into custody or the facts of the crime are being established, the Convention relates to the national law of the offender or alleged offender. In compliance with public international law, the detainee has the right to contact an official of his country of origin without any delay and he/she must be allowed visits by a representative of his/her country. The State Party which has taken custody of a person shall inform the competent State Party (according to Article 6 of the Convention) or any other interested State Party it deems necessary.
Article 8 of the SUA Convention covers the responsibilities and roles of the master of the ship. A flag State must deliver any person believed to have committed an offence under the Convention to the authorities of any State Party, and must furnish evidence pertaining to the alleged offence.
Article 9 makes clear that the competence of a State that rightfully investigates and enforces its jurisdiction on board of a ship which does not fly its flag, is not affected by the SUA Convention.
Articles 10 and 11 contain the core competences of the SUA Convention. They mark the basic principle of aut dedere aut judicare which, as mentioned before, require States Parties to either extradite the offender for custody or submit the case for prosecution. States Parties are also required to assist each other in connection with criminal proceedings undertaken in the framework of the Convention. States Parties are to cooperate in the prevention of offences by taking all practicable measures to prevent preparations for the commission of these offences in their respective territories and outside their territories by exchanging information in accordance with their national laws.
According to Article 12, States Parties are required to provide mutual legal cooperation as far as possible. Legal cooperation needs to be based either on existing legal cooperation agreements or, in the absence of such agreements, based on national legislation. The following Articles 13 and 14 contain non-mandatory regulations and deal with certain pre-emptive measures in order to prevent criminal actions pursuant to the Convention. The most prominent provisions deal with the exchange of information within the scope of national legislation and the coordination of administrative measures to minimize terrorist attacks. In this regard, the Secretary-General of the International Maritime Organization assumes the role of the coordination facility (Art. 15).