By Lieutenant Colonel Pete Combe, USMC

The goal of this article is to articulate one past commander’s approach to discipline, with a focus on improving operational readiness.  The author does not mean to imply that other O5 and O6 commanders pursue discipline for solely punitive reasons.  Rather, this is an attempt to articulate an approach built on rehabilitative potential and getting Marines “back in the fight.”  The framework discussed will rely largely on a “utilitarian” theory of discipline – one in which each decision a commander makes, and each punishment imposed on a Marine serves some larger purpose.¹ 

In this framework punishment does not exist for punishment’s sake, but serves some goal.  The article will proceed in four parts.  First, a description of the purpose and theory of discipline under the Uniform Code of Military Justice (UCMJ).  Second, a discussion of military theories of sentencing and their utilitarian value.  Next, outlines a utilitarian framework and potentially useful rules of thumb in  applying that framework using non-judicial punishment (NJP) as a demonstrative.²  Finally, a brief discussion of how to connect punishments to utilitarian principles.

1. Nature and Purpose of Military Law

The statutory mission of the United States Marine Corps is “… to provide fleet marine forces of combined arms, together with supporting air components, for service with the fleet in the seizure or defense of advanced naval bases and for the conduct of such land operations as may be essential to the prosecution of the naval campaign.”³  In short, the mission of the Marine Corps is to provide ready forces which are organized, trained, equipped, and staffed to conduct operations.⁴  With this larger mission in mind, the goal of any subordinate commander is to conduct operations as directed, and necessary to that end to maintain her unit at the peak of operational readiness.

One responsibility of commanders that is relevant to ensuring operational readiness is the use  of measures to impose appropriate administrative or disciplinary sanctions in response to substandard performance or misconduct.  These can range from purely administrative measures such as written counseling⁵ or extra-military instruction,⁶ through courts-martial.  Regardless of the tool employed, the purpose of military law is to “promote justice, deter misconduct, facilitate appropriate accountability, assist in maintaining good order and discipline, promote efficiency and effectiveness, and thereby strengthen the national security of the United States.”⁷  This broad statement of purpose encompasses a number of goals, both utilitarian and retributive, in order to serve the broader “strengthen[ed]…national security purpose” which exist exists outside any perceived need to punish the accused for the sake of punishment.⁸

There are other offices within the military disciplinary system that exist to deal with offenses of such heightened severity that punishment for the sake of punishment could be the most appropriate theory of discipline.⁹  The Offices of Special Trial Counsel come readily to mind, as they are tasked with making referral decisions and prosecuting the most serious offenses such as homicide, sex offenses, crimes involving harm to minor children and domestic partner abuse.¹⁰  For these types of serious offenses, retributive justice is a more viable theory than utilitarian for reasons beyond the scope of this piece.¹¹

However, for many of the less serious offenses, I offer that retributive theories of punishment should not weigh in a commander’s calculus.  Non-Judicial Punishment (NJP) in particular is a commander’s tool, and one exercised solely within the discretion of the commander.¹²  Non-Judicial Punishment provides a commander with a broad range of disciplinary approaches to address minor offenses for which court-martial is not necessary to meet the needs of justice.¹³ NJP is intended to maintain good order and discipline, and promote positive behavior changes¹⁴ without the stigma of a court-martial conviction.¹⁵  It is this commander’s opinion that NJP is appropriate where the “needs of justice,” do not require punishment of the accused for the sake of punishment alone.  Rather, NJP is an appropriate tool where the circumstances of the offense and offender favor the primary goal of achieving positive change.¹⁶

II. Military Theories of Sentencing

The military justice system recognizes five theories of sentencing or punishment:¹⁷

• Rehabilitation of the accused.
• Incapacitation of the accused to further offend, sometimes couched as protection of society.
• Maintenance of good order and discipline.
• General¹⁸ and specific.¹⁹
• Punishment of the accused.

Of these theories, the first four are primarily or solely utilitarian in nature – they serve a larger, if somewhat abstract or intangible, purpose aside from the imposition of punishment itself.²⁰  The last is expressly retributive.

I argue that a purely retributive approach for cases of less serious offenses is both unnecessary and inconsistent with the policies governing NJP.  As previously expressed, NJP is intended to address minor misconduct for which permanent incapacitation is not required.  The purpose of NJP is to bolster military efficiency and good order and discipline, while returning Marines  who have demonstrated rehabilitative potential “to the fight.”  With that in mind, how then to apply a framework focused on achieving positive goals on behalf of both the individual Marine and the unit?

III. The Framework

I argue that the commander should ask three questions in assessing potential courses of disciplinary action, and that the first question embraces a theory of sentencing other than punishment.  Rehabilitation. 

A. Determining an Appropriate Forum

The three questions I ask of my staff and subordinates, are as follows:

• Does the accused have potential for further useful service in his current assignment?
• Does the accused have potential for further useful service in the Marine Corps, but in a different assignment?
• If the answer to either question above is “no,” how do I go about creating a vacancy so that my unit can obtain another willing and motivated Marine?

Once those three questions are answered, the appropriate disciplinary forum is readily apparent.  If a Marine has the potential for further useful service in a special duty assignment, then administrative counseling alone may be sufficient.  If a Marine has the potential for further useful service in the Marine Corps, but not in a special duty assignment then relief for cause may be sufficient.²¹  Even if a Marine has potential for further useful service, NJP may still be appropriate.  The goal is simple.  So long as the Marine has the potential for further useful service, how do we go about realizing that potential? 

However, I contend that only by considering rehabilitative potential at the outset can a commander determine  the appropriate course of action.²²  Imagine a commander neglecting to consider rehabilitative potential, and referring a Marine to a special court-martial at which the Marine is sentenced to a punitive discharge.  Even if the commander believes the Marine has rehabilitative potential, and would welcome the Marine back into her unit, she has lost that decision space.  The commander should also consider the “demand for court-martial,” should a Marine exercise their right to refuse NJP.²³ In the event the accused refuses NJP, the commander must consider what actions to take.  Is court-martial appropriate, though not required?  Could the commander proceed with purely administrative actions such as relief for cause or administrative separation?

B. Assessing Rehabilitative Potential

How then to assess a Marine’s ability to return to productive service in either the unit, or the Marine Corps?  One needn’t start from zero – as there are a number of rehabilitative factors described in law and policy.²⁴  These factors bearing on rehabilitative potential can generally be grouped into three categories: offender specific, offense specific, and unit impact related factors.

Offender specific factors relate to the accused’s past performance and future potential.  These can include individual character observed over time, the accused’s performance of duty, the accused’s moral fiber,²⁵ the willingness or determination of the individual Marine to be rehabilitated; past instances of misconduct by the accused²⁶ the impact of NJP on the Marine, and whether the accused has accepted responsibility for his actions.²⁷

Offense specific factors include the nature and severity of the offense, which is a particularly relevant factor when determining appropriate forum.  Other offense related factors should include the accused’s role in the offense – was the Marine the principal offender, or did he aid or abet another?  Was the accused somehow induced to commit the offense by another more culpable person, or was the Marine naturally predisposed?²⁸  In addition to taking corrective action at an organizational level, if the commander cannot put in place appropriate guardrails to mitigate against the same offense by another then a punishment consideration based upon the goal of general deterrence may be appropriate.²⁹

Finally, unit wide considerations should also inform the appropriate punishment.  Perhaps the accused cooperated with the commander or law enforcement in investigating and addressing other offenses within the unit.³⁰  While less concrete, there may be instances in which a certain disciplinary measure is appropriate to enhance good order and discipline within the unit.

In many cases this concept of rehabilitation is procedurally “built in.” In many instances a Marine must be counseled concerning shortcomings, provided an adequate time to rehabilitate, and then only if failing to do so can the Marine be processed for separation.³¹  Once the commander determines on a course of action – in our case, NJP – then I argue that the commander should focus on the four utilitarian theories of punishment discussed above: rehabilitation of the accused, incapacitation of the accused to reoffend, preservation of good order and discipline, and general and specific deterrence.

C. Nature of Punishments and Connection to Utilitarian Principles

Once the commander has assessed that the accused Marine has the potential for further useful service, but that imposition of NJP is still appropriate then she should consider what form of punishment is appropriate.  Punishment should be aimed towards the four utilitarian principles.  While the range of punishments available to the commander at NJP are not particularly severe, most utilitarian sentencing theorists argue that punishment should be no more severe than necessary to achieve the goals (deterrence, rehabilitation of the accused, or incapacitation of the accused) the sentencing authority seeks.³²  Furthermore, while concepts of restorative justice aimed at restoring victims to a status quo ante have gained traction in civilian systems and certain administrative proceedings, the NJP process provides no function to achieve restorative justice.³³

In crafting an appropriate sentence, it may help to consider which forms of theories best support a particular utilitarian theory of sentencing.  An admonition or reprimand may best support specific deterrence.  Restraints on liberty may best support general deterrence, and incapacitation of the accused from offending in the near future.  Reduction in grade is a visible action that may contribute to general deterrence, as well as preservation of good order and discipline.  The commander imposing NJP should carefully consider what forms of punishment will best achieve her goals.  This framework and concepts hold true for other administrative and disciplinary matters within the scope of the commander’s discretionary authority.

IV. Connecting Punishments to Utility

Assume at this point, following the rubric above, the commander has assessed the Marine’s rehabilitative potential, and whether to proceed with some form of discharge or administrative reassignment.  However, NJP does have lasting consequences and will remain in a Marine’s record for the remainder of their career.³⁴  This is likely to have significant impacts on a Marine’s future opportunities for promotion or special duty / screenable assignments.³⁵ Accordingly, the commander should carefully weigh the appropriate punishments, and give consideration to suspension, mitigation or remission and set-aside. 

A commander may suspend part of a sentence at NJP, declining to impose that sentence at the current time but retaining the option to impose any suspended portion of the sentence at a later date if the Marine commits further misconduct. The impact of a suspended punishment which is not later imposed is effectively no punishment – the suspended portion ceases to exist if the Marine stays out of trouble for an appropriate length of time (ordinarily 6 months).  The same is true if a punishment is remitted or set aside after imposition.³⁶  Similarly, just because a commander considers a Marines case at NJP, does not mean that the commander must impose any punishment.  The commander may determine after hearing the evidence, that the Marine did not commit the charged offense(s), or that the misconduct is so minor as to warrant no imposition of punishment. 

These concepts can seem amorphous or difficult to pin down in the abstract.  Accordingly, a series of hypothetical examples which emphasize different theories of sentencing as appropriate to each individual case may be illustrative.  Each hypothetical case below is intended to highlight how a different theory of sentencing may appropriately contribute to utilitarian goals, getting Marines back into the fight, and ultimately bolstering readiness.

A. Staff Non-Commissioned Officer Fraternization

Hypothetical:  A Staff Non-Commissioned Officer (SNCO) assigned as an instructor at a formal school is suspected of violating a lawful general order which prohibits unduly familiar relationships with student personnel.  The SNCO has been counseled previously for non-sexual instances of unprofessional conduct with students, across several classes / school years. 

What punishment is appropriate from a deterrent standpoint?  In terms of specific deterrence, a verbal or written reprimand appears unlikely to deter the SNCO from offending further.  He’s already on notice that his conduct is unacceptable.  Thus, the commander should consider what punishment is apt to have a deterrent effect.  Restraints on liberty and forfeiture of pay are both available options. However, their deterrent effect on the SNCO is not entirely clear.

In this case the interests of good order and discipline are directly impacted by the accused’s position.  Removing the SNCO from his position, including any direct contact with students is likely an appropriate administrative measure.  Administrative removal and punishing the SNCO to restriction – including twice-daily check-ins with all other Marines on restriction – will send a powerful message to the unit.  All are subject to discipline, regardless of their grade or position.³⁷

Restraints on liberty, coupled with administrative reassignment may also work to incapacitate the SNCO from offending in the future – at least in the short term.  By restricting the SNCO to locations in which students are not likely to be, along with administratively reassigning him to a role that has no contact with students, his access to students will be curtailed. 

If the commander determines that the SNCO lacks rehabilitative potential in the school environment, then a range of options including removing the Marine from the particular school either for the Good of the Service (GOS) or Relief For Cause (RFC) may be appropriate.³⁸

B. Non-Commissioned Officer DUI

Hypothetical:  A Non-Commissioned Officer (NCO) with a history of alcohol related incidents is ticketed, but not yet convicted, for driving under the influence of alcohol (DUI) out in town.  The NCO has no prior history of DUI, nor do prior alcohol related incidents involve violence.  After initial actions including Substance Abuse Counseling Center assessment and treatment, the command must assess whether to proceed with NJP.³⁹

Is an admonition or reprimand formally imposed at NJP likely to deter the NCO from further DUI or other alcohol related incidents?  As a threshold matter, it would appear not.  Aside from the imposition of NJP itself, there is no directly foreseeable link to remaining available punishments (restraints on liberty, reduction in grade, forfeiture of pay) and specific deterrence.

The interests of good order and discipline may also require that this NCO be removed from his position administratively.  In particular, if the NCO has a security clearance, his repeated irresponsible consumption of alcohol may impact his eligibility for access to classified information.⁴⁰  However, from a disciplinary standpoint the visibility of the NCO’s conduct will likely be an important factor to consider.  If he is an NCO In Charge (NCOIC), then removal from his position or reduction in grade may be appropriate. 

The NCO here may be rendered incapable of further abusing alcohol either by restriction, or by limiting his disposable income by forfeiture of pay.  In conjunction, this may work to limit the NCO’s ability to commit the same or similar misconduct in the future. 

Should the commander decide that the NCO does not have rehabilitative potential, then the commander may choose to recommend separation of the Marine for failure of alcohol rehabilitation.⁴¹ 

C. Non-Commissioned Officer on Barracks Duty

Hypothetical:  An NCO assigned overnight barracks duty falsifies logbook entries indicating that she made her required rounds.  The greater weight of evidence indicates that not only did she fail to make her rounds, but that she left her post without authorization.  Her whereabouts during this time are unknown.

Whether an admonition or reprimand is likely to deter the NCO from similarly offending in the future may depend on the circumstances of her absence from post.  For example, assume she is a single mother, who during the course of questioning freely admitted her misconduct, and explained that she left because pre-arranged childcare fell through. 

This case on its surface has a direct connection with good order and discipline, through the regular maintenance and accurate logging of security posture in the barracks.  However, in the circumstances described involving childcare, there are likely better ways to reinforce good order and discipline than through severe punishment.

D. Thoughts on General Deterrence

In theory, any sufficiently visible form of punishment serves general deterrence.  The concept of general deterrence is also closely related to the preservation of good order and discipline.  If Marines are aware of their fellow service member’s misconduct, and there is a visible consequence for that misconduct, this serves general deterrence.  If Marines are sufficiently deterred, this bolsters good order and discipline.

Commanders may also maximize the effect of the NJP proceeding itself.  This may include “command observers” during the NJP, to demonstrate to Marines that the commander is fair, impartial, and approaches the proceedings with integrity.⁴²  If the accused requests witnesses be present, then the commander may permit those witnesses to remain in the room while the commander considers the evidence and makes a final decision.⁴³  The commander may also provide the unit senior enlisted advisor a chance to address those present.  However, if deviating from the NJP guide in the JAGMAN,⁴⁴ the commander should closely coordinate with the senior enlisted advisor and servicing Staff Judge Advocate to avoid any impermissible actions.⁴⁵

Commanders should consider publication of the results of NJP to their units.⁴⁶  The intent is not to embarrass the accused, but to show all Marines how the commander addresses misconduct.  Publication can also be used as a teaching tool for other Marines, and highlight where even “good” Marines may succumb to outside pressures.  Publication should be anonymized by removing the name of the Marine and the specific subordinate unit or section.  However, the publication should provide sufficient facts so that unit members can understand the misconduct and any mitigating factors.

V. Conclusion

Ultimately, this framework is about accomplishing one overarching goal – bolstering operational efficiency through exercise of the tools at a battalion or regimental commander’s discretion.  However, I argue that below the level of a court-martial punishment alone as a theory of sentencing has no place.⁴⁷

At the root of this approach is a simple question, that should be foundational to formulating an appropriate punishment: does the accused have the potential for further useful service?  With this question as a basis, commanders can craft appropriate punishments at NJP, and either return good Marines to the fight, or create a vacancy for another willing volunteer.

Lieutenant Colonel Pete Combe is currently assigned as the Staff Judge Advocate, Marine Forces Reserve / South.  This article is informed by his career as a Marine Judge Advocate, and his experience as the Commanding Officer, Region 5, Marine Corps Embassy Security Group from 2024 to 2026.

The views expressed here are those of the author and are not intended to reflect or convey any official policy of the Department of the Navy, the Department of Defense, or the U.S. Government.

References

1. While this article uses the term “Marine,” one may well substitute the Service neutral term “servicemember,” or for that matter Sailor, Soldier, Airman, Guardian, or Guardsman.

2. Why non-judicial punishment (NJP) pursuant to Article 15 of the U.C.M.J.?  Because, when accepted by the Marine it is truly the only form of statutory punishment under the U.C.M.J. which is wholly within the discretion of the Commander.

3. 10 U.S.C. § 8063.

4. 10 U.S.C. §§ 161, 162.

5. Marine Corps Order 1900.16 w/CH-2, ¶ 6105.

6. JAGINST 5800.7G w/CH-2, ¶0103.

7. Manual for Courts-Martial (2024 ed.), I-1 (emphasis added).

8. See, e.g., Charles L. Pritchard, Jr., Punished as a Court-Martial May Direct, The Army Lawyer, 33 (December 2015).

9. One viable theory where the other four theories of sentencing may also play a role in crafting an appropriate sentence.

10. 10 U.S.C. 824a; 10 U.S.C. 1044f.

11. Pritchard, Punished as a Court-Martial May Direct, 35.

12. This in contrast to Administrative Separation Boards which include members, and generally an outside “separations authority.”  See. MCO 1900.16 w/CH-2, ¶1603.  Also, for courts-martial in which counsel, military judges, and panel members will play significant roles – and in which the commander must abandon desire for a specific result, and instead work to ensure the integrity of the process.

13. MCM, V-1.

14. I would argue that the use of the plural “servicemembers” here indicates the intent to effect positive behavior changes on the part of the accused, and others.

15. Id.

16. Pritchard, Punished as a Court-Martial May Direct, 35.

17. Pritchard; DA PAM 27-9.

18. Deterrence of others from committing the same or similar offense(s) in the future.

19. Deterrence of the accused from committing the same or similar offense(s) in the future.

20. Pritchard.

21. Relief for Cause (RFC) is a term of art used in Marine Corps screenable billets, and encompasses removal from a “screenable” billet prior to the expected / designated end of tour.  RFC is ordinarily used when a Marine’s conduct falls below that expected of a Marine in a high visibility assignment, and can either follow or be independent of NJP.  See, generally MCO 1326.6 w/CH-1, and MCO 1300.8 Chapter 3.

22. Obviously other factors will weigh in, such as the severity of the offense, impact to the unit, etc.  There are clearly offenses of such seriousness than rehabilitative potential should not be a consideration in determining an appropriate forum.

23. MCM, V-2.

24. See, for instance, MCM II-148 (RCM 1001(b)(5)); MCM V-1; DA PAM 27-9, pp. 116, 2051; MCO 1900.16 w/CH-2, ¶ 6309.

25. Though not entirely clear from the DA PAM 27-9 paragraph what this entails, perhaps it includes rescuing multiple students from grindylows in the Black Lake a la, Harry Potter.

26. MCM, V-1 (para. 1.d).

27. DA PAM 27-9, p. 2051.

28. Id.

29. A particularly useful tool for general deterrence, and one used by the author, is to publish the results of performance and misconduct proceedings (sufficiently anonymized to avoid the potential for embarrassment or humiliation) as a means to bolster the general deterrent effect.  See., e.g., JAGINST 5800.7G w/CH-2, ¶ 0115.

30. DA PAM 27-9, p. 2051.

31. MCO 1900.16 w/CH-2, ¶6105.  See, e.g., MCO 1900.16 w/CH-2, ¶¶ 6205 (Entry-Level Performance and Conduct), 6210.2 (Minor Disciplinary Infractions), 6210.3 (Pattern of Misconduct) – all of which require counseling and consideration of the rehabilitative guidelines discussed in ¶6105.  Contrast, for example, with ¶¶ 6210.4 (Sexual Misconduct), 6210.5 (Drug Abuse), 6210.6 (Commission of a Serious Offense), or 6210.8 (Sexual Harassment) – none of which require said counseling and consideration, and for some of which processing for separation is mandatory upon substantiating the conduct.

32. Bentham, supra, CH XIV, pt. XIII, “punishment ought [not] be more than what is necessary.”

33. See, e.g., MCO 5354.1G, Chapt. 7 and the discussion of informal resolution through conflict management (mediation) between a victim and accused in instances of sexual harassment.

34. MCO 5800.16, Vol. 14.

35. MCO 1326.6 w/CH-1.

36. MCM, V-7,8.

37. Though speculative, a SNCO in a special duty assignment may find acceptance of NJP preferable to either risking a court-martial, or being relieved for cause from that special duty assignment.

38. See, generally, MCO 1000.6 and MCO 1326.6 w/CH-1.

39. See, MCO 5300.17A.  The command will also potentially be required to initiate separation proceedings pursuant to MCO 1900.16 w/CH-2, ¶ 6209 – thought the commander may recommend retention if assessing the Marine has rehabilitative potential.

40. 32 C.F.R. 147.2.

41. MCO 1900.16 w/CH-2, ¶ 6209.  Separation processing may be mandatory at this point, but the commander may still recommend that the Marine be retained.

42. JAGINST 5800.7G w/CH-2, ¶ 0110.c.

43. MCM, V-3.

44. JAGINST 5800.7G w/CH-2, App. A-1-f

45. See, e.g., 10 U.S.C. § 837.

46. JAGINST 5800.7G w/CH-2, ¶0115.

47. And perhaps even at any level below a general court-martial.

Featured image: A U.S. Navy staff judge advocate questions a witness in a mock trial. (U.S. Air Force photo by Airman 1st Class Elizabeth Davis)

Dr. Ian Ralby, Dr. David Soud, and Sophie Podrog

On 7 July 2021, Jovenel Moïse, the President of Haiti, was assassinated in his own bedroom, sending Haiti into a constitutional crisis from which it has not recovered. While there remain conflicting reports around the circumstances of his murder, one credible consideration was that he may have been killed to prevent him from exposing individuals involved in criminal enterprise. While drugs and arms are the main illicit commodities associated not only with Haitian organized crime but with the Caribbean region more broadly, they may not have been the only illicitly traded goods with which Moïse was concerned – his other major interest was in criminality surrounding the trade in eels.

The Imperative For Vigilance

As little-known and seemingly bizarre commodities begin to fetch higher and higher values in global illicit markets, law enforcement officers must become more vigilant in identifying and responding to new trends. This need is becoming particularly acute in the maritime domain, as the out-of-sight nature of marine life makes the illegal trade in living marine resources particularly attractive to criminal actors. High value marine species are ideal commodities for pursuing illicit profits and laundering money at the same time. The general lack of familiarity with aquatic life reduces the likelihood of being caught either on paper or in person, and the inability to trace the origin of these commodities can make accountability an even more elusive challenge.

Why Eels?

Indeed, the eel trade is an excellent example of this growing problem for law enforcement officials in the Caribbean and beyond: the illegal movement of “invisible commodities” that no one recognizes as the instruments of crime. Eels may not seem to go together with guns and drugs, but they can be as profitable as cocaine with hardly any of the risk. While terrestrial commodities – including gold, timber, fuel and wildlife – have been part of this phenomenon for a while, the dynamic becomes more extreme when it involves marine species that are typically so unfamiliar to most people as to go unnoticed. This aspect of fisheries crime and exploitation of the maritime domain demands closer attention. Its implications are not only environmental and economic, but closely tied to both the rule of law and the ability to govern, as Moïse’s death painfully illustrates.

While eels are by no means the only invisible commodity in the Caribbean, they present a revealing case study. The world’s eel population originates entirely from the Sargasso Sea in the North Atlantic Ocean near Bermuda. Eels begin their lives as leaf-like larvae that drift in different directions from their spawning site in the Sargasso Sea towards estuaries and rivers. Within 55 days of their arrival to estuaries, they turn into glass eels- small, transparent organisms whose value soars while they are in this clear state. As they progress through estuaries, rivers, and ecosystems, they eat what is available to them. What they consume literally colors them as they grow into elvers. Elvers are still adolescent eels, but their color signifies their loss of value. The elvers continue to grow before transforming into adult yellow eels within a year. These adult eels remain in the yellow eel phase for several years, before European and American eels mature into their final phase, silver eels. Towards the end of their life, silver eels will return to the Sargasso Sea to spawn before their death.

Staggering Value

Regardless of how eels may or may not appeal to palates in different parts of the world, the economics around the marketplace are telling. At source, glass eels from the Caribbean fetch around $4,000 per kilo, making them four times more valuable than a kilo of marijuana at origin and roughly the same as cocaine at first point of sale. While the glass eels do increase in value across the supply chain, they reach a maximum figure of about $8,000 per kilo in transit and $12,000-$15,000 at destination. That does not keep pace with the supply chain of drugs, as cocaine reaches a range of about $28,000 to $70,000 at destination. The thing about living organisms, however, is that they grow. A patient purchaser of glass eels can raise those eels to full adulthood, at which point their value can hit as much as $35,000 per kilo, putting them back in the same range as cocaine. At scale, as in the case of the vast eel farms in parts of Asia, this “bio-arbitrage” can generate profits into the billions of dollars. There is nothing intrinsically illegal about this process – unless the eels were sourced or shipped illegally or used as a means of turning criminal cash, used to buy glass eels, into legitimate profits on the global seafood market. Those forms of illegality have become big business, and led to eels being officially declared endangered. In the EU, the export of eels has been banned outright since 2010, but illegal trade persists, and eel fisheries have been almost completely depleted to the point of being “critically endangered.” The Caribbean, where eels flourish but no such restriction exists, is already being exploited and is exposed to grave risk.

Whether it is eels, sea cucumbers, turtles, lobster or other sea creatures, maritime commodities are attracting more criminal actors. With their advantages of high values, bio-arbitrage, and limited interdiction risk, they present an appealing alternative to trafficking drugs, weapons, humans, or other contraband that features on the radars of law enforcement and customs agencies. And the informal and cash-intensive upstream markets for eels are an ideal venue for money laundering. What this means is that there is a need for increased vigilance.

Turning the Tide on Invisible Criminal Commodities

Disrupting the harvesting and sale of these invisible commodities requires three main approaches. First, there needs to be rigor in identifying the commodity trends. To accomplish this, both governmental and non-governmental actors need to work together. Various entities outside of government – from fishers to civil society organizations to businesses – are likely to see some of the initial trends in new maritime commodity harvesting and trading, which will leave traces in market activity and trade data. There needs to be a relationship between them and the governmental actors to then be able to make sense of what is going on and what can be done about it. Within governments, the challenge is of interagency cooperation. Too often, one ministry or agency will have some insight but not share it, and thus constrict what can actually be done. In this case, for example, it may be that the fisheries agencies spot the activity, but if that is not shared with the police, coast guard and customs, there may be little means of effectively interdicting it.

Second, coast guards and other maritime law enforcement agencies need not only to know what is going on, but also what they should be looking for and what they can do about it. Without training, it is not easy to even make sense of eels being trafficked, and with each of the maritime commodities, different means of transport require different training for law enforcement. And even when the eels or other commodities are identified, understanding the legal basis for what action may or may not be taken is critical. This is where regional organizations – the Caribbean Regional Fisheries Mechanism (CRFM), the Caribbean Community’s Implementation Agency for Crime and Security (CARICOM IMPACS) and the Regional Security System (RSS) – can all play a vital role both supporting information flow and ensuring standardized training across the region. Any jurisdiction that has a blind spot may become a magnet for the criminal activity.

Finally, prosecutors and judges must be clear on what can be done to stop those who engage in the illegal harvesting and trafficking of maritime commodities. If the law is not fit for purpose, legal professionals must also have a role in working with law enforcement to encourage a legislative or regulatory enhancement to address that state of affairs. In addition to having the right laws, the prosecutors and judges must be comfortable with them and willing to use them. So ensuring training in how to prosecute such cases is also a critical element that can be supported by regional organizations. 

What Next?

Criminals will always seek illicit profit with the highest reward and the lowest risk. Maritime commodities have become increasingly popular on account of their relative invisibility. Eels may be the Caribbean’s “flavor of the month,” but something else will come to take their place in the future. That means that the region – replete with sophisticated criminal organizations – needs to build collective resilience against this phenomenon by working together. First, to make invisible criminal commodities visible, and thereafter, to make the risk of getting caught outweigh the potential rewards of the crime.

Dr. Ian Ralby is President of Auxilium Worldwide, a charitable non-profit committed to global harmony. He is a globally recognized expert in maritime law and security and works around the world to help states and regional organizations identify and address maritime crime. Auxilium Worldwide has been working extensively with the Caribbean Community’s Implementation Agency for Crime and Security (CARICOM IMPACS) to uncover and counter overlooked illicit maritime activities, particularly in the fisheries sector. 

Featured Image: An apprehended vessels along with small skiffs used by fishermen which were apprehended on November 22, 2017. (Royal Bahamas Defense Force photo)

A version of this piece was originally featured by the U.S. Naval War College’s Stockton Center for International Law under the title, “Rudderless and Adrift: States’ Unwarranted Timidity Respecting
Stateless Vessels.”

By Andrew Norris

Despite the fact that the oceans are extensively used for contraband smuggling, including narcotics, there is not a correspondingly robust legal regime at sea for contending with this problem. Except for a very limited coastal State entitlement to ‘prevent’ customs offenses (including narcotic trafficking) in the contiguous zone, the flag State alone is entitled to exercise prescriptive, enforcement and adjudicative jurisdiction over its vessels and those aboard them for such offenses in all waters outside the sovereign waters (i.e. territorial sea and inward) of another State. UNCLOS Article 108 merely exhorts States to cooperate in combatting narcotics trafficking at sea, and treaties such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (hereinafter Vienna Drug Convention), the Jeddah Amendment to the Djibouti Code of Conduct, and Caribbean bilateral agreements typically just provide fidelity on how such cooperation should occur. The Right of Visit (ROV) per UNCLOS Article 110 is a useful tool, but is limited to a determination of vessel nationality only – jurisdiction over a vessel for any narcotics trafficking offenses remains the sole province of the flag State in the case of a properly flagged vessel.

Specific to the issue of law enforcement jurisdiction at sea, Article 4 of the Vienna Drug Convention requires Parties to take measures to establish jurisdiction over violations of their narcotics criminal laws occurring in their territory or on board a vessel flying their flag. It also suggests that Parties take measures (such as obtaining flag State consent) to establish jurisdiction over vessels flying the flag of another State. What Article 4 does not touch on is the ability of States to establish and exercise jurisdiction over vessels without nationality or those assimilated to vessels without nationality under international law (collectively referred to hereinafter for ease of reference as stateless vessels).

Recognizing that the inability to exert maritime law enforcement jurisdiction over stateless vessels creates a significant gap in the overall global effort to combat narcotics trafficking at sea, some nations have extended their jurisdictional reach more robustly over such vessels. For example, Article 3 (Jurisdiction) of the 1995 Council of Europe’s ‘Agreement on Illicit Traffic by Sea,’ implementing Article 17 of the Vienna Drug Convention, requires a State Party to ‘take such measures as may be necessary to establish its jurisdiction over the relevant offences committed on board a vessel which is without nationality, or which is assimilated to a vessel without nationality under international law.’ Similarly, the U.S. fulfilled its obligations under Article 4 of the Vienna Drug Convention by expanding (and routinely exercising) its jurisdictional reach over stateless vessels in its principal maritime narcotics smuggling law, the Maritime Drug Law Enforcement Act (MDLEA).¹

Unfortunately, such robust jurisdictional postures with respect to stateless vessels engaged in narcotics trafficking at sea are more the exception than the norm. It is not entirely clear whether the failure by many States to more aggressively assert jurisdiction over stateless vessels is the product of legislative lethargy (it requires affirmative action by a State to decide on, adopt, and publicize an enhanced jurisdictional posture) or a mistaken belief that a more robust posture is forbidden by or contrary to international law. As demonstrated below, this second basis is legally incorrect, and to the extent nations are failing to adopt a more robust jurisdictional posture toward stateless vessels based on it, they are voluntarily and needlessly restraining themselves to the ultimate benefit of maritime criminals.

Neither Conventional law, customary international law, nor decisions of international tribunals prevent a more robust exercise of jurisdiction over stateless vessels. The Conventional (or treaty) law of nations, as embodied in UNCLOS, does not answer the question of the extent of jurisdiction States may exercise over Stateless vessels. All it says, in Article 92(2), is that ‘[a] ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.’ This provision is unsatisfactory in several ways. First, it only relates to one of several means by which a vessel can be considered stateless for jurisdictional purposes – it is entirely silent as to other means (e.g. true statelessness, failure to make a claim of nationality). Also, it provides no guidance at all on the ultimate issue, which is the jurisdictional consequence of a vessel being ‘assimilated to a ship without nationality.’

Equally unsatisfying in terms of establishing or defining the international law related to jurisdiction over stateless vessels is State practice. Customary international law results from a general and consistent practice of States that they follow from a sense of legal obligation. A doctrine or principle that rises to the level of customary international law is binding on States to the same extent as treaty law. Unfortunately, as comprehensively addressed in Chapter 15 of the United Nations Office on Drugs and Crime’s Maritime Crime: A Manual for Criminal Justice Practitioners (3^rd ed.), ‘there is no settled answer’ in State practice to the scope of jurisdiction that a boarding State may assert over a stateless vessel. According to the Manual, ‘[s]ome States may determine that they can, in effect, treat the vessel as one of the boarding State’s own nationality’ and as a consequence ‘may claim that it can assert the same jurisdiction over the suspect vessel as it could assert over a vessel of its own nationality.’ However, ‘[o]ther States may be of the view that the statelessness as such of the vessel does not suffice in order to assert jurisdiction over the vessel and the persons on board. Accordingly, they would assert jurisdiction only if there is some other jurisdictional link with the activity of the vessel or the persons concerned’ – such as, for example, an assault on a boarding officer during a ROV boarding. Which viewpoint is correct is not the point here. Rather, the mere fact that this divergence in practice exists, by definition, means there is no settled customary international law that settles the issue.

The consequence of international conventional law that remains largely silent on the issue of the jurisdictional effect of vessel statelessness, and State practice falling into one of two divergent camps, is there is no definitive ‘rule of international law’ on the issue of stateless vessel jurisdiction. In such a case, the Lotus principle (deriving from Case of the S.S. “Lotus” (Fr. v. Turk.), 1927 P.C.I.J. (Ser. A) No. 10), which is a fundamental principle of international law, stands for the proposition that ‘[the absence of a definitive rule] leaves [States] a wide measure of discretion, which is only limited in certain cases by prohibitive rules. As regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.’

In other words, the focus in the absence of generally accepted law is not on whether international law permits a certain action, but rather whether is prohibits such an action. In the absence of such a prohibition, ‘all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.’

In 2024, the U.S. Ninth Circuit Court of Appeals in United States v. Marin (No.22-50154, decided on January 17, 2024) applied the Lotus principle to uphold a provision of the MDLEA that permits the U.S. to assert prescriptive, enforcement, and adjudicative jurisdiction on the basis of statelessness over ‘a vessel aboard which the master or individual in charge makes a claim of registry and for which the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality.’ According to the court, ‘[d]efendants do not identify a rule of international law requiring an oral claim to nationality be rebuttable only by a denial by the claimed flag state. In fact, such a rule could lead to the untenable result that neither the boarding state nor the claimed flag state have jurisdiction over a vessel so long as the claimed flag state does not confirm or deny nationality —undermining international law’s role of facilitating the “achievement of common aims.”’ Since, according to the Marin court, no international law prohibits the specific practice at issue, the U.S.’s exercise of jurisdiction on this basis ‘is not contrary to international law under the Lotus principle’ and does not ‘overstep the limits which international law places upon . . . jurisdiction.²

A U.S. court ruling is most certainly not determinative on the issue outside the United States. However, that ruling squarely addressed the international legality of perhaps the most aggressive of the situations in the MDLEA that permits the U.S to exercise jurisdiction over a vessel on the basis of statelessness, and determined that there was no rule of international law forbidding such an exercise in that situation. Assuming this conclusion is correct, application of the Lotus principle leads to a conclusion that the U.S. or any other nation choosing to adopt this particular approach to stateless vessel jurisdiction is free to do so as an exercise of State sovereignty.

The same conclusion would apply to any other approach not specifically prohibited by international law. In fact, it can be argued that in view of the invitation, if not mandate, on States to expand their jurisdictional reach as a central component of the global scheme to cooperatively address the scourge of narcotics trafficking at sea, the failure by States to avail themselves of mechanisms not prohibited to them by international law is a self-inflicted infirmity that weakens the global commitment to good order at sea and unnecessarily cedes legal ‘space’ at sea to would-be traffickers and other purveyors of maritime disorder.

The bottom line is that States should clarify the extent and parameters of their jurisdiction over stateless vessels in their domestic laws. In doing so, they should join the States that, according to the UNODC, ‘determine that they can, in effect, treat the vessel as one of the boarding State’s own nationality’ and as a consequence ‘may claim that it can assert the same jurisdiction over the suspect vessel as it could assert over a vessel of its own nationality.’ There is no legal bar to them doing so, and failure to do so merely weakens their own maritime law enforcement power and the overall global scheme to address disorders at sea. And finally, though the focus of this analysis is on narcotics trafficking, that is merely for illustrative purposes. There is no reason whatsoever that nations could not similarly extend their jurisdictional reach over stateless vessels for any other types of maritime crimes or disorders, subject to any other legal limitations that might exist.³

Andrew Norris, J.D., is a retired U.S. Coast Guard captain who currently works as a legal and regulatory consultant through his business, Tradewind Maritime Services Inc. In 2024, he has supported the United Nations Office on Drugs and Crime in their maritime capacity building programs in the Pacific Ocean and Indian Oceans East regions. He also supports U.S. Defense Support of Civilian Agencies (DSCA) capacity building programs in partner nations. He is a founder of the Maritime Security and Governance Staff Course at the U.S. Naval War College, a resident 5-month course for international officers focused on maritime activities and missions short of war. His principal area of recent focus is on fostering collaboration and system improvements by judges, prosecutors, and enforcers to better achieve a successful ‘legal finish’ in maritime law enforcement cases.

References

¹ Title 46 U.S. Code Chapter 705

² There have been some international court rulings that call into question the continued vitality of the Lotus principle in the jurisdictional context. However, those cases related to jurisdiction over universal crimes (such as war crimes or piracy), which, being international crimes, cannot by definition be the subject of differential state jurisdictional interpretations. That is not so with respect to non-universal crimes like narcotics smuggling; the 1988 Vienna Convention, for example, acknowledges the competency of States to craft criminal prohibitions and their jurisdictional reach, even as it provides guidelines on the types of criminal activities such laws should address. It is the author’s view – not to mention that of the U.S. Ninth Circuit – that the Lotus principle, rooted as it is in State sovereignty, is alive and well in the context of jurisdiction over non-universal crimes, including narcotics enforcement.

³ For example, the U.S. adopts the MDLEA’s jurisdictional scheme over stateless vessels in its principal fisheries enforcement law. See 16 U.S.C. 1802(49). This is in accord with exhortations by, e.g., the Indian Ocean Tuna Commission or the Western and Central Pacific Fisheries Commission (WCPFC) that nations ‘take all necessary measures, including enacting domestic legislation if appropriate, to prevent vessels without nationality from undermining conservation and management measures’ adopted to conserve and protect covered fish stocks. Conservation and Management Measure 2009-09, WCPFC.

Featured Image: Gulf of Oman (Aug. 30, 2022) Bags of illegal narcotics sit on the deck of a fishing vessel interdicted by U.S. Coast Guard fast response cutter USCGC Glen Harris (WPC 1144) in the Gulf of Oman. (U.S. Coast Guard photo)

By Dr. Ian Ralby

“Legal Finish” is a term that has become commonplace in maritime security circles around the world. It refers to the process of putting a maritime law enforcement action through a legal mechanism – whether a prosecution, administrative proceeding or other adjudication – that formally assesses offenses under national law and where appropriate, penalizes perpetrators. Legal finish has rightly been identified as crucial because merely disrupting illicit activities does little to deter future criminal conduct; only enforcing legal consequences changes the risk-reward calculus for nefarious actors. The problem, however, is that with all the focus on the legal finish, many states, international organizations, and “capacity building” partners have forgotten the legal start. 

Maritime law enforcement is not a linear process, it is a cycle that starts and ends with the law. Recognizing its recursive nature is essential to establishing clear, consistent, and effective law enforcement and security operations.

To begin with, the law is the framework by which the maritime domain is assessed. Armed with the legal framework, maritime watchstanders can monitor and surveil the maritime domain, looking for any anomalies. Once they find those anomalies, however, a rigorous analytical process is needed to ensure that information is turned into understanding –about both what is happening on the water and what can be done about it. That analytical process, therefore, relies heavily on understanding the law. The key questions are:

1. Is the anomaly desirable or undesirable? (Not all anomalies are undesirable).
2. If it is undesirable, is it legal or illegal? (Not all undesirable matters have been addressed by the law).
3. If it is illegal, is it actionable or not? (Does the state have the authority and jurisdiction to do something about it?)
4. If it is actionable, is it achievable or not? (Does the state have the right physical capacity and capability to interdict the matter?)
5. Even if it is undesirable, illegal, actionable, and achievable, would interdicting the matter be wise? (Is it worth the fuel, is it worth the risk, could there be geopolitical blowback, etc.?)

If the answer to any of these questions is “no,” then there should still be consideration of one additional question: “Is there anything else that could be done?” Watching the situation further, notifying other agencies, issuing a notice to mariners, or contacting neighboring states are all on the long list of other things that might be worth doing, short of pursuing an interdiction.

If the analysis suggests that an on-the-water operation might be warranted, then the analysts must have access to some sort of mechanism for sharing information with the proper decision-makers. Whether it is operative within an agency or across agencies, that cooperative mechanism must be repeatable (so there is consistency in how things happen), documentable (so there is a chance to learn from both successes and mistakes), and structured in such a manner that adequate information gets to the appropriate decision makers efficiently. 

Once decision-makers have information about an anomaly that is undesirable, illegal, actionable, achievable, and worth pursuing, it is up to them to decide whether to conduct an operation. If they choose to do so, the operation must be planned and executed in a manner consistent with the law. That requires not only a clear understanding of the authorities that the respective agencies have for law enforcement, and the limitation of enforcement jurisdiction in the maritime domain, but also a sufficient grasp of all the elements of an offense to be able to identify and document those elements at sea. The collection and preservation of evidence in the maritime space is crucial, especially since revisiting a “crime scene” at sea is rarely, if ever possible. Thus, understanding the law at the operational stage – both in the sense of what the law enforcement officers do and concerning what they notice and record – is vital to legal finish. But that understanding is usually in the hands of completely different people than those responsible for the legal finish. 

Importantly, arrests of people do not happen at sea. While it is possible to arrest a vessel, the suspects themselves are detained at sea and brought back to shore. Only once on shore are they handed over to land-based authorities who, on reviewing whatever evidence has been collected, then conduct an arrest or initiate an administrative proceeding. An arrest would then trigger the start of a prosecution, adjudication, and, if successful, penalization of the case. An administrative proceeding would similarly assess some sort of penalty. In either case – both considered to be “legal finish” – the personnel responsible are almost always different than the ones involved in every prior step of the process. All too often, however, most of the support, training, capacity building, attention, and funding has gone to this final stage, while the role of the law and legal advisors has been ignored in all the others.

Legal advisors are rarely, if ever, part of the process of monitoring and surveilling the maritime domain, analyzing anomalies, sharing information, planning operations, or even executing operations. They are sometimes – but rarely – consulted regarding evidence collection and preservation. Usually, the first time lawyers are brought into the maritime security cycle is for the legal finish, and it is left to them to kick-save any legal mistake or oversight that has been made at any previous point in the cycle. There is only so much, however, that can be fixed at the end of the process. Additionally, there may have been operational options that would have been more impactful if legal consultations had occurred earlier. Maritime law is strange and it affords some rights and opportunities that are sometimes hard to believe. Operators may miss out on more effective operations due to a lack of legal input at that stage.

Because maritime law enforcement is a cycle rather than a linear process, it does not end if one of the steps breaks down or even if all of them are successful through to prosecution. The final step is to revisit the starting point – the law – to ensure that it is fit for purpose. Law has two main functions: to constrain bad action and to enable good. If the law does not address an undesirable activity occurring in the maritime domain, it should be expanded or amended. If that law is not creating space for “good,” economically productive, and desirable activities, it should also be amended. While maritime law enforcement focuses on “the bad,” governing the maritime domain requires recognizing a balance between the two. Only stamping out the bad is not possible; there must be ample opportunities for good, lawful activities as well – especially when they are vital to a state’s economic security. 

To be most effective, therefore, in both promoting good activities and stopping bad ones, the law must be seen as a tool or an asset for law enforcement – much the way a ship, radar system, or even a weapon would be seen. To be as impactful as possible, the law must be calibrated for the security operating environment. But even perfect law will be virtually worthless unless those who understand it and know how to use it are involved from the start of the maritime security cycle. Relegating the law to the legal finish phase betrays a lack of appreciation for the centrality of the law to the entire cycle, and sets up the state for failure.

Legal finish is incredibly important. But so is the legal start. If operational lawyers are not recognized as playing a vital role in all the phases leading up to the handover to land-based authorities, the prospects of both effective operations and successful legal finish are being undermined. So, for all the good attention that has been paid to prosecutors and judges, as well as to the work of coast guard and navy lawyers in support of those prosecutions or administrative proceedings, much more must be done to back up and start integrating sound legal advice throughout the maritime security cycle. While this can be a challenge, as operational cultures tend to not be welcoming to legal advisors, it is not about disrupting missions and operations with annoying legal points. It is about enhancing missions and operations by safeguarding the likelihood of their success. As simple as it sounds, we must not lose sight of the reality that legal finish needs a legal start.

Dr. Ian Ralby is a recognized expert in maritime and resource security. He has worked in more than 95 countries around the world, often assisting them with developing their maritime domain awareness capacity. He holds a JD from William & Mary and a PhD from the University of Cambridge. 

Featured Image: A commercial ship passes by San Francisco. (Photo via Wikimedia Commons)