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WHY GREENPEACE AREN'T PIRATES
by Joshua Keeting for Slate
October 2. 2013 4:14 P.M.
At least 14 of the 30 Greenpeace activists arrested after trying to scale a Russian oil platform in the Arctic last month have been charged with piracy by the country’ federal Investigative Committee. The charge, against the crew of the ship Arctic Sunrise, from countries including Argentina, Britain, Finland, the Netherlands, Poland, Russia, Britain, as well as a U.S.-Swedish citizen, could carry a jail term of up to 15 years.
Northwestern law professor Eugene Kontorovich, explained a few days ago why this charges fails to meet the traditional definition of piracy under international law:
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.
Interestingly, as Julian Ku writes at Opinio Juris, it’s possible that a U.S. court decision might actually bolster Russia’s case here. Traditionally, only people who have actually stolen or held property for ransom at sea have been charged with piracy. But in February, the U.S. Ninth Circuit Court of Appeals upheld an injunction against the Sea Shepherd Conservation Society, the anti-whaling activists best known from the TV series "Whale Wars," arguing that their attacks on Japanese ships constituted piracy even though they had no intention of profiting monetarily from them.
"When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be," Chief Judge Alex Kozinski wrote in his opinion.
Even so, the Greenpeace activists hadn't done anything that drastic and despite this precedent, the charges are obviously a stretch by international standards. Even President Vladimir Putin has said “it's completely obvious they aren't pirates."
The better parallel in this case may be the “hooliganism” and “religious hatred” charges filed against the members of Pussy Riot, whose actions would normally be defined at worst as trespassing or vandalism, but are currently serving two-year jail terms. And indeed, according to the Washington Post, “some activists have begun referring to the Greenpeace ship as the Pussy Sunrise.”