{"id":4186,"date":"2019-03-31T00:00:00","date_gmt":"2019-03-31T10:01:15","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/the-alleged-seizure-of-the-el-hiblu-1-by-rescued-migrants\/"},"modified":"2020-12-09T13:03:10","modified_gmt":"2020-12-09T12:03:10","slug":"the-alleged-seizure-of-the-el-hiblu-1-by-rescued-migrants","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-alleged-seizure-of-the-el-hiblu-1-by-rescued-migrants\/","title":{"rendered":"The alleged seizure of the El Hiblu 1 by rescued migrants"},"content":{"rendered":"

On 28 March 2019, a Maltese patrol vessel intercepted<\/a> the Palau-flagged tanker vessel El Hiblu\u00a01\u00a0<\/em>(IMO: 9753258<\/a>) at the outer limit of Malta\u2019s territorial sea, and the ship was subsequently boarded and secured by a Maltese special operations team using a helicopter. The reason for this operation was that the El Hiblu\u00a01\u00a0<\/em>had allegedly been hijacked by members of a group of migrants it had rescued earlier, and that these migrants had forced the crew to steer the vessel towards Europe. It appears that no one was injured prior or during the operation. Afterwards, the El Hiblu\u00a01\u00a0<\/em>was brought to the port of Valletta<\/a>. Reportedly, Maltese authorities have now charged<\/a> three teenage migrants from Guinea and C\u00f4te d\u2019Ivoire with \u201cterrorist activities\u201d.<\/p>\n

Italian Interior Minister Matteo Salvini was quick to allege<\/a> that the incident constituted \u201cthe first act of piracy on the high seas with migrants.\u201d Equally, Maltese authorities reportedly at one point spoke of a \u201cpirated ship<\/a>\u201d and so did the master of El Hiblu 1\u00a0<\/em>according to his own account<\/a>. The purpose of this post is to clarify that, based on the reported facts, the seizure El Hiblu 1\u00a0<\/em>is not a case of piracy under the international law of the sea. Importantly, this post does not argue that no criminal conduct, for example under the law of the flag State, has taken place on the El Hiblu\u00a01<\/em>. Rather it shows that the incident does not provide Malta \u2013 or any other interested State \u2013 with universal jurisdiction under Article\u00a0105 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS<\/a>) to try the persons involved for acts committed in relation to the incident.<\/p>\n

Background: The El Hiblu 1 Incident<\/strong><\/p>\n

On 27 March 2019, the El Hiblu 1<\/em>\u00a0reportedly<\/a> rescued about 100 migrants off the coast of Libya. Prior to the rescue operation, a European aircraft monitoring the area had spotted the migrant\u2019s two boats and asked the El Hiblu 1\u00a0<\/em>to rescue them. The vessel Alan Kurdi<\/em>, operated by the German NGO Sea-Eye, was also in the area but not close enough to take over the rescue. Neither was, according to Sea-Eye, the Libyan coast guard able to undertake a rescue operation. After the rescue, the El Hiblu 1\u00a0<\/em>continued its journey towards its final destination Tripoli. It is unclear whether or not the Libyan Maritime Rescue Coordination Centre (MRCC) or the crew of the European aircraft asked the El Hiblu 1\u00a0<\/em>to remain on its previous course. In any case, when the El Hiblu 1\u00a0<\/em>had almost reached Tripolis, it suddenly changed course towards Malta and its master told the Maltese authorities that some of the rescuees had taken control of the vessel and that he and his crew were being threatened in case they did not take the rescuees to Europe. Soon after, the Maltese authorities intervened.<\/p>\n

As some commentators have noted<\/a>, the operational history of the El Hiblu 1<\/em>, including its departure from its previous area of operation in Turkish waters and its sudden change in ownership and flag (from Turkey to Palau) just prior to the incident appears to be rather unusual, if not suspicious \u2013 and similarities to previous incidences of smuggling have been highlighted. So far, however, no further details are available.<\/p>\n

The definition of piracy under Article\u00a0101 of UNCLOS<\/strong><\/p>\n

For the purposes of the international law of the sea, piracy is defined in Article\u00a0101 of UNCLOS<\/a>. The definition contains several elements, at least two of which are not fulfilled in the case of the El Hiblu 1<\/em>. In relevant part, piracy is defined as \u201cany 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 [\u2026] on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft\u201d (Article\u00a0101(a)(i) of UNCLOS).<\/p>\n

If the media reports turn out to be correct, and the crew and master of the El Hiblu 1\u00a0<\/em>have indeed been coerced into changing course with threats of violence (note that Maltese authorities have indicated that there might be doubts as to the master\u2019s version of events<\/a>), the first part of the definition would be fulfilled. Such conduct would qualify as \u201cillegal acts of violence or detention, or any act of depredation\u201d. Under a broad definition of \u201cprivate ends\u201d, these acts could arguably also be considered as having been \u201ccommitted for private ends\u201d, namely, to take control of a vessel and to force this vessel to take the perpetrators to a destination of their choice. However, the correct interpretation of the \u201cprivate ends\u201d criterion remains heavily disputed<\/a>, and even in cases of terrorism its application has been cast into doubt due to its political rather than private motivation. The infamous Achille Lauroincident of 1985<\/a><\/em>, in which an Italian-flagged cruise ship was seized in the Mediterranean by members of the Palestine Liberation Front (PLF) posing as tourists, is an example on point. In this respect, the case of the El Hiblu\u00a01<\/em>provides food for thought due to the motives of the alleged hijackers.<\/p>\n

In any case, the seizure of the El Hiblu 1\u00a0<\/em>clearly does not fulfill two further requirements of Article\u00a0101(a)(i) of UNCLOS. First, the piratical acts must have been committed \u201con the high seas\u201d (or in the Exclusive Economic Zone of a coastal State, see Article\u00a058(2) of UNCLOS). Yet, when the El Hiblu 1\u00a0<\/em>abruptly changed course, it was reportedly located about 6 nautical miles off the Libyan coast and thus within the Libyan territorial sea<\/a>. Therefore, the seizure of the El Hiblu 1\u00a0<\/em>was not piracy. It could more accurately be called an \u201carmed robbery at sea\u201d (despite the absence of any weapons on board the El Hiblu 1<\/em>), which is not a legal term of art, but a term that is commonly used for \u201cpiratical acts\u201d that take place in the territorial sea of a coastal State. Such crime is not subject to universal jurisdiction under Article\u00a0105 of UNCLOS, but falls within the criminal jurisdiction of the coastal State in whose territorial sea it occurred \u2013 which is in this case Libya. In principle, the perpetrators are also subject to the parallel criminal jurisdiction<\/a> of the flag State (in this case Palau or, if online information on the change of flag is incorrect, Turkey) and their State of nationality (Guinea or C\u00f4te d\u2019Ivoire).<\/p>\n

Second, Article\u00a0101(a)(i) of UNCLOS requires that the piratical acts are directed \u201cagainst another ship or aircraft, or against persons or property on board such ship or aircraft\u201d. Due to this requirement, a vessel hijacking by persons already on board of the ship, such as passengers or crew members in case of a mutiny (cf. Article\u00a0102 of UNCLOS) is not considered piracy even if it takes place on the high seas. Instead, such incidents are subject to the criminal jurisdiction of the flag State (and the parallel criminal jurisdiction of the State of nationality). For example, there is widespread agreement that the \u201cother ship requirement\u201d was not fulfilled in the Achille Lauro\u00a0<\/em>incident mentioned above, since the PLF hijackers had already been on board the vessel.<\/p>\n

Conclusion<\/strong><\/p>\n

In conclusion, and contrary to some statements issued in the course of events, the El Hiblu 1\u00a0<\/em>incident is not a case of piracy under the international law of the sea. Accordingly, it was correct of the Maltese authorities to wait for the El Hiblu 1\u00a0<\/em>to reach the Maltese territorial sea before intercepting and boarding the vessel (see also Article\u00a06(1)(b) of the SUA Convention<\/a>). They would not have been permitted to board the El Hiblu 1<\/em>on the high seas without the permission of its master or the flag State. The Maltese authorities also correctly did not choose to charge the alleged hijackers with piracy-related offences (Article\u00a0328N of the Maltese Criminal Code<\/a>). Instead, it appears that they have been charged with \u201cterrorist activity\u201d, which includes \u201cthe unlawful seizure or the exercise of control over a ship [\u2026] by the use of force or threat thereof, or by any other form of intimidation (Article\u00a0328A of the Maltese Criminal Code<\/a>; cf. Article\u00a03(1)(a) of the SUA Convention). The merits of these charges are for Maltese criminal lawyers to judge, but at first glance it would seem unusual to bring terrorism-related charges against persons resorting to intimidation presumably in order to avoid serious harm of their own.<\/p>\n

 <\/p>\n

Valentin J. Schatz<\/a> <\/em>is a Research Associate and Ph.D. Candidate at the Chair of International Law of the Sea and International Environmental Law, Public International Law and Public Law (Professor Alexander Proelss) of the University of Hamburg, Germany.<\/em><\/p>\n

 <\/p>\n

Cite as: Valentin J. Schatz, “The alleged seizure of the El Hiblu 1 by rescued migrants: Not a case of piracy under the law of the sea”, V\u00f6lkerrechtsblog<\/em>, 31 March 2019, doi: 10.17176\/20190401-161334-0.<\/a><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

On 28 March 2019, a Maltese patrol vessel intercepted the Palau-flagged tanker vessel El Hiblu\u00a01\u00a0(IMO: 9753258) at the outer limit of Malta\u2019s territorial sea, and the ship was subsequently boarded and secured by a Maltese special operations team using a helicopter. The reason for this operation was that the El Hiblu\u00a01\u00a0had allegedly been hijacked by […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[4597],"article-categories":[6000],"doi":[],"class_list":["post-4186","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-valentin-j-schatz","article-categories-article"],"acf":{"subline":"Not a case of piracy under the law of the sea"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4186","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4186"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4186\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4186"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4186"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4186"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4186"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4186"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4186"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}