On August 17, a US District Court handed down a fascinating piece of statutory interpretation that apparently means that unless a Somali pirate succeeds in stealing something, he cannot be charged with piracy under US law.
There have been a number of national piracy trials taking place in Western States, notably in the US and the Netherlands. (I have written on piracy trials in Kenya elsewhere.) In the Netherlands a group of Somali pirates was sentenced to five years in prison. I have not seen either the judgement in Dutch or a summary of it in any other language yet. (If you have it, do let me know). In New York, the young Somali suspect pirate Abdiwali Abdiqadir Muse, sole survivor of the gang that attempted to hijack the Maersk Alabama, entered a guilty plea in a deal that removed piracy from the charges against him.
This leaves US v Said et al, the trial of 11 suspects before the US District Court in Norfolk, Virginia who were alleged to have (rather foolishly) attacked the naval vessel the USS Ashland, an amphibious landing craft transport, in April this year. The New York Times has helpful posted a copy of the interlocutory decision in this case which Justice Jackson struck out the charges of piracy against them. The decision finds that the alleged facts, which involve drawing alongside another vessel and starting a fire-fight with it, do not fall within the US statutory concept of “piracy as defined by the law of nations” (18 USC §1651). The reason for this is that the classic case, US v Smith 18 US 153 (1820), remains the governing authority and it held piracy to be “robbery at sea”. The alleged facts disclose no robbery, ergo no piracy.
The decision raises a host of issues. I will concentrate more here on points of methodology and issues of national prosecutions of international crimes. I have discussed the international law framework surrounding piracy in a previous post on this blog and will attempt not to repeat matters covered there. Nonetheless, I cannot resist the obvious quote from the Privy Council in Re Piracy Jure Gentium  AC 586, which responded to the suggestion that robbery is a necessary ingredient of piracy by saying:
“[when confronted with the argument that] armed men, sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel … without committing the crime of piracy unless they stole, say, an article worth sixpence, … [one is] almost tempted to say that a little common sense is a valuable quality in the interpretation of international law.”
In fairness, the decision starts by noting the due process requirement that a criminal defendant should have “fair warning” of the existence of an offence (nullum crimen sine lege) and the prohibition on “novel” constructions of criminal statutes to capture acts not previously (or obviously) criminal. It also starts from the proposition that criminal statutes are to be strictly construed and their meaning is to be judged at the time of their enactment (here 1819).
The judgment gives short shrift to the prosecutor’s contention that: (1) “the definition of ‘piracy, defined by the law of nations’ includes and has always included any unauthorized violent acts or attacks committed on the high seas without lawful authority against another ship”; and (2) that this definition is not unconstitutionally vague.
US v Smith certainly did define piracy as “robbery upon the sea”, but it noted (in Justice Story’s epic 18-page footnote) the diversity of definitions then given by authorities and its facts concerned only robbery. That said, the prosecutor was unable to cite wider approaches to the definition in US law (other than in civil forfeiture cases using the broader term “piratical”).
Unsurprisingly, given the paucity of US sources, the prosecutor argued that the Court should have reference to current international law definitions. The government apparently cited International Maritime Bureau practice, Re Piracy Jure Gentium, the Geneva High Seas Convention 1958 and the UN Convention on the Law of the Sea 1982 (the latter two containing virtually the same definition). The defence case was that the current international law definition of piracy remained so unsettled that the only clear (and thus fair) standard to apply was the prior Supreme Court ruling in US v Smith.
The Court noted that according to Oppenhiem’s International Law (1905), Re Piracy Jure Gentium, and the relevant treaties piracy included any attack or act of unlawful violence. This, one would have thought a sufficient foundation to conclude there was presently a clear definition at international law.
The Court, however, took the view that there was no scholarly consensus as to whether there was a settled definition of piracy at customary international law. The decision quotes to this end a few US law journal articles and the magisterial (if idiosyncratic) work, Alfred P. Rubin’s The Law of Piracy (1988). There is indeed a received wisdom in some quarters that there has never been a clear customary international law definition of piracy and therefore there was nothing for the Geneva Convention 1958 to codify; any definition it offers must have been largely novel.
Like many received wisdoms, it fails under sustained analysis. In particular it gives no weight to the successive re-enactment of the 1958 definition in UNCLOS and other instruments. Both the Geneva Convention and UNCLOS have certainly come to be treated as codifications, even if the claim that there was a clear rule to codify in 1958 might seem shaky. As I’ve put it elsewhere (footnotes omitted):
“While [the treaty definition are] now generally accepted as customary law, there are worse and better arguments that this definition is not, historically, a codification. Worse arguments focus on national decisions of the 19th or early 20th century … These cannot be a reliable guide to the law a century later, not least because such cases notoriously conflated elements of national and international offences. Better arguments note the diverse, contradictory historical case law and scholarly commentary and ask how any coherent rule could emerge from such incoherent material. Both arguments fail to acknowledge that the successive re-enactment of this definition in treaties and regional instruments evidence States’ present acceptance of it as custom no matter how unconvincing this proposition might seem viewed over the longue durée.”
The position that the universally applicable legal framework dealing with piracy is reflected in UNCLOS has also been endorsed in Security Council Resolutions 1816, 1838, 1846, 1851, 1897 and 1918. If this isn’t evidence that that the treaty definition is now believed to be custom I’m not sure what is.
The Court also declines to look to international sources not only because of lack of clarity but because
“there is no single court that can bring order to various interpretations of UNCLOS [regarding piracy]. Rather, enforcement actions against pirates and criminal prosecutions of pirates are left to individual countries, many of which have different penalties for the crime of piracy ranging from three years to life in prison.”
Quibbles could be raised about these points, but they are all ultimately tangential. The Court ultimately held against looking to current international law sources because as they “evolve over time, defendants in the United States courts would be required to constantly guess whether their conduct is proscribed by § 1651.” A somewhat facetious response would suggest that the likelihood of any Somali having contemplated 18 USC §1651 is vanishingly remote. Obviously, though, it would certainly impair running a defence if your lawyers had no notice of what the definition of the offence was until the Court had determined it. There are also, perhaps, policy considerations in the propriety of courts receiving wholesale from custom criminal law standards in an age that expects such matters to be set out clearly and in advance, in written form, by elected legislatures (see, for example, the Australian case Nulyarimma v Thompson  FCA 1192, paras 53 and 161; see also footnote 6 in Said v US).
It is hard to argue against the proposition that a defendant (or rather his lawyers) should have fair notice of the case they will have to plead and reasonably certain standards to guide them. The lesson for States wishing to prosecute pirates has to be to update your statutory definitions. This should not particularly difficult, but some legislative efforts look rather better than others.
In the UK s. 26(1), Merchant Shipping and Maritime Security Act 1997 (c. 28) states: “For the avoidance of doubt it is hereby declared that for the purposes of any proceedings before a court in the United Kingdom in respect of piracy, the provisions of the United Nations Convention on the Law of the Sea 1982 … shall be treated as constituting part of the law of nations”. That is, the UK crime remains piracy by law of nations, but judges are directed to construe that customary international law crime in line with UNCLOS. Whether this somewhat tortuous formula provides sufficient certainty for defence lawyers remains to be seen. Australia, rather more directly, simply incorporated the language of UNCLOS into ss. 51-53, Crimes Act 1914. There are reports of new laws in jurisdiction such as Spain and Japan. It might be time for the US to revisit its definition as well, especially in light of its treaty commitments under the Geneva Convention 1958.