A group of armed men attack a U.S. warship on the high seas. Piracy under international law? Yesterday, the U.S. District Court in Richmond convicted a group of Somalis for an attack on the U.S.S. Ashland (such incidents are not uncommon). Boy these guys were dumb – what were they thinking?
Of course, if Judge Kozinski’s piracy opinion were wrong, the prosecutors would actually have to prove what they were thinking as an element of the case. That is, attacking a warship is the kind of thing one would ordinarily due for political purposes, so unless one actually takes a purely subjective approach to “private ends” (which I think obviously and entirely unworkable), this prosecution would be difficult under the “private isn’t political” rule.
The defendants argued they were distressed mariners just trying to get the Ashland’s attention. They should have said they were Somali militants protesting the unfairness of global wealth distributions. (The Stolen Seas movie that features me also features Noam Chomsky putting the Somali pirates in some such a light.)
These guys were the ones whose case was originally thrown out by a district judge who read international law very narrowly as not covering attempts, before the Fourth Circuit reversed (citing me...).
Also yesterday, Nigerian pirates released some hostages. The Ashland case is really a throwback; Somali piracy is largley (at least until the sequester kicks in). However, a new and much more violent piracy problem has emerged in the Gulf of Guinea, involving attacks on oil industry there. Thus far the attackers have invariably been described as pirates by the the UN, IMO, and the world at large as far as I known.
Yet the Nigerian pirate attacks are an operation of MEND (Movement for the Emancipation of the Niger Delta), who has carried on attacks for years on and off the high-seas. Its generally thought of as a political group. A big part of MEND’s “politics” is the redistrubtion of oil wealth in favor of local interests. They are treated as pirates (though I don’t know of any foreign prosecutions yet). Thankfully not much turns on their precise state of mind, or the imponderable line between politics and theft.
Piracy is a universal jurisdiction crime. We do not like to have jurisdictional considerations turn on vague, subjective factors – especially sensitive things like universal jurisdiction. Some might say the “political” exemption is for only “purely” political motives, but given the ubiquity of mixed motives, I have no idea how one excludes the possibility of non-political motives, or even how one defined “political” in a world where money and its distribution is a major political issue.