From Prof. Eugene Kontorovich, About Today’s Piracy Decision

Prof. Eugene Kontorovich (Northwestern) — who has guest-blogged here several times — passes along this item about today’s United States v. Ali (D.D.C. July 13, 2012):

Not many alleged Somali pirates are apprehended when they come to the U.S for a conference of educators. Yet that is what has happened in the odd case of US v. Ali, where a the DC Federal District court today upheld piracy charges while throwing out conspiracy charges. The case is set for trial later this month. (Much of what the court said has important implications for Kiobel v. Dutch Shell [EV note: the SSRN site is down for several hours today], which I’ll discuss next week at Scotusblog. Many of the arguments in that case talk about extraterritoriality and piracy law, but actual cases on this only come along every few hundred years, so the timing is amazing.)

The case is remarkable in several ways:

1) This is the U.S.’s first universal jurisdiction prosecution of a Somali pirate -– that is, the first prosecution of a pirate with no U.S. connection. Unlike other recent pirate defendants, he is not accused of attacking American vessels or nationals, and is thus prosecuted purely under international law. America has not done this in nearly 200 years. The present case makes American one of only three countries in the world to use this international legal tool against Somali pirates. Pirates that are caught attacking other country’s ships are generally released or farmed out to cheapest-justice-providers, like Kenya or Seychelles.

2) Yet the defendant does not seem to be a pirate in the traditional sense at all. Rather, he was an official in the education ministry of the breakaway Somali region where the ship was taken, who worked for the pirates as a ransom negotiator. He did not apparently have any role in the hijacking itself. The court held that international law includes aiding and abetting within the prohibition of piracy, based on language in the Law of the Sea Treaty extending the definition of the crime to those “intentionally facilitating” piratical acts. I think the court may have erred in this regard; I would not have thought the language extends to ex post facilitation. The court does not discuss the before/after-the-fact distinction.

Moreover, even “facilitation” must occur on the high seas to count as piracy.

I think the prosecution is a stretch, and as the court itself ruled, an attempt to stretch the UNCLOS definition of piracy. (As the Law of the Sea treaty comes up for debate in the Senate, it is helpful to be reminded that there is significant disagreement about the meaning and application of what were thought to be the treaty’s most basic and least controversial provisions.)

There has been a desire by Justice to go after pirate “kingpins” and “financier,” but they are hard to find and catch. This guy voluntarily came to the U.S. –- thinking he had done nothing wrong -– and is facing a mandatory life sentence.

Consider this: If negotiating pirate ransoms constitutes “aiding and abetting” piracy, why not go after the fancy white lawyers in London who are on the other end of the negotiation, and actually give the pirates the money? After all, it is the payment of ransom, not the request, that really makes piracy possible. Or what about the guys who sell food to the Somali pirates?