Pirate Accessory Liability – Developing a Modern Legal Regime Governing Incitement and Intentional Facilitation of Maritime Piracy

60 Pages Posted: 7 Oct 2012 Last revised: 24 Jan 2013

Roger L. Phillips

Extraordinary Chambers in the Courts of Cambodia (ECCC)

Date Written: October 3, 2012

Abstract

Despite the exponential growth of piracy off the coast of Somalia since 2008, there have been no prosecutions of those who have profited most from ransom proceeds; that is crime bosses and pirate financiers. As U.S. courts begin to charge higher-level pirates, they must ascertain the status of customary international law as reflected in the UN Convention on the Law of the Sea. UNCLOS includes two forms of accessory liability suited to such prosecutions, but a number of ambiguities remain in the interpretation of these forms of liability. These lacunae cannot be explained by reference to the plain terms of the UNCLOS or the travaux préparatoires and leaving domestic jurisdictions to fill these gaps risks creating a fragmented, and potentially contradictory, legal framework. On the contrary, resort to general principles of law ascertained by international criminal tribunals creates a predictable, and consistent, understanding of these modes of responsibility. This article shows how the jurisprudence of the ad hoc criminal tribunals fills the gaps in the law related to incitement and intentional facilitation of piracy. It further shows how these modes of responsibility are particularly suited to charges of financing pirate organizations or inciting children to participate in pirate enterprises.

Keywords: piracy, modes of responsibility, law of the sea, international criminal law, international public law

JEL Classification: K14, K33

Suggested Citation

Phillips, Roger L., Pirate Accessory Liability – Developing a Modern Legal Regime Governing Incitement and Intentional Facilitation of Maritime Piracy (October 3, 2012). Florida Journal of International Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2158023 or http://dx.doi.org/10.2139/ssrn.2158023

Roger L. Phillips (Contact Author)

Extraordinary Chambers in the Courts of Cambodia (ECCC) ( email )

National Road 4, Chaom Chau Commune
P.O. BOX 71, Phnom Penh
Phnom Penh
Cambodia

HOME PAGE: http://www.eccc.gov.kh/en

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