A sweeping amnesty that is underway in Russia was extended on Tuesday to a member of the crew of the Arctic Sunrise, the Greenpeace International ship seized on the open seas three months ago.
If the amnesty covers the rest, as expected, it will draw to a close one of the more contentious chapters in Greenpeace’s history, in which Russian commandos boarded a ship, imprisoned the crew members and charged them, for a time, with piracy.
I discussed the original charges against the Greenpeace activists here and here. The piracy charges were downgraded to "hooliganism," which qualifies for amnesty. Several other prisoners who have already been released, including members of the band, Pussy Riot, have condemned Russia's amnesty approach. The Times continues:
One member of Pussy Riot, Maria Alyokhina, stepped out of the penitentiary to say she would have preferred to stay than to accept an amnesty from President Vladimir V. Putin. The amnesty, she said, had been intended only to bolster the image of Mr. Putin and Russia before the Winter Olympics in Sochi, which start in February.
While all of the Greenpeace activists have not yet been guaranteed amnesty, it is likely that they soon will be, and will probably be able to leave the country soon.
The New York Times reports here Reuters reports here, Eugene Kontorovich reacts and has analysis here. My previous posts on this issue appear here and here. As the Times notes, this prosecution is inconsistent with Vladimir Putin's previous remarks that the activists were "obviously not pirates."
Acccording to the Times:
The lodging of such serious charges in the Greenpeace case illustrates how far apart the Russian government remains from Western governments and nongovernmental organizations on issues like freedom of speech and civil disobedience. Russian courts ignored a similar international outcry last year when they sentenced members of the group Pussy Riot to two years in prison for protesting in a church.
The piracy charges carry a maximum sentence of 15 years in prison. It was not clear how many of the 28 members of the crew and the two journalists who were aboard the Arctic Sunrise would ultimately be charged; all of them have been detained for investigation. The court in Murmansk that is handling the matter adjourned on Wednesday with the cases of the ship’s American captain, Peter Willcox, and a number of others still pending. Lawyers for Greenpeace said the hearing could continue with more charges lodged on Thursday.
Kontorovich notes that "such clearly abusive and politicized piracy charges are quite unprecedented in modern history" and argues that this signals that Russia is claiming superpower status and is unafraid of retaliation.
It will certainly be interesting to see how this case develops and how the United States and United Nations react. Kontorovich encourages the government to challenge Russia's action as a violation of both international and customary treaty law. Whatever happens, this case will add a notable dimension to modern piracy cases and law.
Students interested in international law would do well to explore this. I know that if I were still slating articles, a paper piracy would get my attention pretty effectively.
I posted a little while back about Greenpeace's boarding of a Russian oil platform and the subsequent arrest of the activists. Today, at the Volokh Conspiracy, Eugene Kontorovich posted about the issue. I suspect that he had received numerous emails following his analysis of a previous case involving Sea Shepherd, and decided to set the record straight. I was happy to see that I was correct in my earlier conclusion (it was my first foray into piracy law, after all), although Kontorovich makes a wider variety of arguments to support this conclusion. He writes:
The Greenpeace activities are most certainly not piracy for several reasons. The modern definition of the offense can be found in Art. 101 U.N. Law of the the Sea Convention (UNCLOS III), Art. 101(a)(1).
First, piracy requires an attack against a “ship.” The Greenpeace incident involved an oil rig, which is not a ship because it is not navigable. (The 1988 SUA Convention dealing with maritime violence beyond piracy required a separate protocol to apply to oil platforms).
Second, piracy requires “acts of violence or detention.” Here the Greenpeace activist merely put a poster on the platform. This does not constitute violence. In the Ninth Circuit case, by contrast, the Sea Shepherd vessels allegedly attempted to ram Japanese whalers, hurled projectiles at them, and so forth. While the defendants argued this did not amount to violence, it is certainly more colorable than a poster. The Greenpeace activists certainly committed trespass, but not piracy.
Indeed, it is Russia that fairly clearly violated UNCLOS by seizing the ship for the misconduct of the crew. The arrest of a vessel is strictly forbidden “even as a matter of investigation,” (Art 97(3)), except for piracy. The piracy allegations here are clearly pretextual, making Russia liable to the Netherlands for seizure “without adequate grounds,” Art. 106.
It would appear that Kontorovich is an influential figure indeed. The BBC reports that Russian President Vladimir Putin mentioned the Greenpeace Activists earlier today:
Mr Putin, speaking at a forum on the Arctic, said: "It is absolutely evident that they are, of course, not pirates."
But the protesters are not safe yet:
A spokesman for Russia's main investigating agency, the Investigative Committee, said the charges might be changed if new evidence emerges.
Maybe the oil platform was actually a ship. This would be a significant development indeed.
My previous post on Greenpeace got me thinking about pirates and piracy in general, which in turn caused my thoughts to wander to the days of my childhood when being a pirate sounded like an enjoyable and feasible career option. Not all pirates seemed romantic, however, especially "The Pirates Who Don't Do Anything." These pirates were originally described in this Veggie Tales song:
I have learned that the band, Reliant K, released a version of this song, but I'm not at all familiar with the band or the song so I'll leave you to figure out which version is better.
(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).
This definition of piracy caused me to question the Veggie Tales song. UNCLOS clearly indicates that pirates must do something, namely engage in illegal violence, detention, or depredation, in order to be defined as pirates in the first place. If an individuals just "stay home and lay around," they cannot engage in piracy.
Veggie Tales may not be entirely without an argument here, however. Eugene Kontorovich notes in his article, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, (45 Harv. Int'l. L.J. 183, 2004) that piracy has historically been a universal offense in the international law context. He further notes in this article that the universal, historic punishment for piracy was death. The Restatement (Third) of Foreign Relations Law, section 404, comment f states, "a universal offense is generally not subject to limitations of time," indicating that there is no statute of limitations on universal offenses (Judge Kleinfeld pointed this out in his dissent in the later-vacated Ninth Circuit case, Sarei v. Rio Tinto, PLC, 671 F.3d 736, 817 n.128).
The upshot of all of this is that while the Pirates Who Don't Do Anything may not currently do anything but stay home and lay around, if they ever engaged in piracy before, they may still be prosecuted for that piracy. Notably, none of the singing vegetables ever deny that they ever engaged in illegal violence, detention, or depredation.
If carrying out an act of piracy leaves somebody with a permanent threat of prosecution for that offense, I think that this person (or vegetable) is well within his or her rights to label himself or herself a pirate.
The Guardian and BBC report that Russian authorities boarded the Greenpeace ship, the Arctic Sunrise, and arrested a number of activists. I am not immediately clear about whether Russia's military was involved -- The Guardian simultaneously reports that it was the Russian "military" and "coastguard" but the BBC reports that it may have been Russia's "internal security service," the FSB.
Russia claims that it is arresting the activists for crimes arising from a previous protest where members of Greenpeace boarded a Russian oil drilling platform to protest the environmental impact of the drilling operation.
This whole affair reminded me of the Ninth Circuit's opinion in Institute of Cetacean Research v. Sea Shepherd Conservation Society (2013 WL 2278588). I learned about that case from Kenneth Anderson's post here and from Eugene Kontorovich's in-depth commentary on the ruling here. In this case, the Ninth Circuit determined that Sea Shepherd's actions of "Ramming ships, fouling propellers and hurling fiery and acid-filled projectiles" was piracy under the United Nations Convention on the Law of the Sea (UNCLOS) because these were violent actions carried out for private ends. The court concluded that the actions were violent even though property was the target of these activities. The court further held that "private ends" included actions taken with environmental activism goals -- "private" simply required that the goals be nongovernmental. For those who are interested in legal issues relating to piracy (who isn't!?), check out Kontorovich's articles on the subject here, here, and here. With Institute of Cetacean Research in mind, were Greenpeace's actions piracy? I don't think so, at least not based on the facts I have seen in the stories I've read. Greenpeace's actions seemed to be nothing more than an attempt to board an oil platform. While weapons were displayed, these weapons all seemed to be in the hands of Russian authorities aboard the platform. I have no idea how concepts like trespass work on the high seas, but in the absence of "violence or detention or any act of depredation," Greenpeace's actions do not appear to be piracy, at least not under UNCLOS.
