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Eugene Kontorovich, Guest-Blogging on Prosecuting Pirates and Terrorists:

I'm delighted to report that Prof. Eugene Kontorovich (Northwestern Law School) will be guest-blogging for the next several days about prosecuting pirates and terrorists. Here's his quick summary of his plans:

Many of the issues about the legal regime for responding to and prosecuting pirates that have arisen in the wake of the capture of a U.S. vessel this week are discussed at length in my forthcoming scholarly essay entitled “A Guantanamo on the Sea": The Difficulties of Prosecuting Pirates and Terrorists, to be published in volume 98 of the California Law Review. I wrote it several months ago, before the piracy problem had attracted major attention, but due to the slow production schedules of law reviews, it won't be published for some time, so I thought it would be appropriate to share the central ideas informally now. (For background on the issue, one can consult a short briefing paper I wrote for the American Society of International Law, International Legal Responses to Piracy off the Coast of Somalia.)

The essay explains the legal and practical difficulties to taking both military and criminal approaches to the piracy problem. Because pirates are not combatants but rather civilians -– yet civilians operating in a highly organized armed manner outside the control of any country -– international law and the criminal procedure rights of Western countries make any solution challenging. The Article’s principal contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything, prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms.

(The difficulties of prosecuting pirates are illustrated in a recent Ninth Circuit case last year -– the first universal jurisdiction piracy case decided by America in hundreds of years, and the subject of a short piece of mine forthcoming in the American Journal of International Law. The little noticed case also demonstrates the difficulties involved: The entire crew had to be detained on material witness warrants, translators found for everybody, and more.)

I write on public law generally, including constitutional and public international law. Because of my interest in jurisdiction, I have been studying piracy since the beginning of my scholarly career. Piracy is the first and paradigm universal jurisdiction crime -– one that can be punished by any nation, even without a nexus to the offense. Given the rise in universal jurisdiction over human rights offenses, studying how it worked for hundreds of years in the context of piracy could teach a great deal about modern universal jurisdiction, as I’ve shown in The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation and other articles. I have also followed the current piracy problem closely since it began in 2005, for an ongoing project empirically analyzing universal jurisdiction to see how often nations are willing to exercise it. Unfortunately, this area of knowledge has become too relevant as of late.

I'm much looking forward to seeing the other Eugene's posts.

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