Do Pirates Have a Right of Parlay?

by Duncan Hollis

U.S. prosecutors charged the sole surviving Somali pirate from the Maersk Alabama incident, Abduwali Muse, yesterday on charges of piracy, conspiracy to seize a ship by force, discharging a firearm during a ship seizure, conspiracy to commit hostage-taking and brandishing a firearm during a hostage taking.  The list of reported charges seems to confirm Eugene Kontorovich‘s suggestion yesterday in a great post over at Volokh that we’re looking at the first piracy prosecution in the United States in a century (it’s less clear from the news reports if prosecutors are also relying on implementing legislation for the Maritime Safety Convention, 18 USC 2280).  

Conflicting accounts exist over Muse’s age (the judge rejected defense claims that he’s 15) and his role in seizing the U.S. vessel (i.e., Muse was either the brazen leader or an unwilling accomplice forced to participate in the attack).  I suspect both issues will continue to draw attention if Muse’s case proceeds to trial. 

But, for international lawyers the most interesting questions involve the defense’s apparent invocation of the Geneva Conventions.  It’s unclear whether and how Muse would rely on them — perhaps he’ll argue that he’s an unlawful enemy combatant entitled to the protections of Common Article III?  It’s hard though to see how he’d be entitled to a provision that applies to non-international armed conflicts “occurring in the territory of one of the High Contracting Parties.” That territorial restriction seems to exclude events on the high seas, or even in a state’s EEZ.  But even if Common Article III applied, where’s the violation?  Muse was injured, so he must get “humane” treatment, but I’ve yet to see any reports suggesting he was treated otherwise; and any prosecution in the Southern District of New York should meet Common Article III’s minimum standards of due process.   

A statement by Ron Kuby–a civil rights lawyer in discussions about forming a legal team to represent Muse–suggests a different line of defense: 

I think in this particular case, there’s a grave question as to whether America was in violation of principles of truce in warfare on the high seas,” said Kuby. “This man seemed to come onto the Bainbridge under a flag of truce to negotiate. He was then captured. There is a question whether he is lawfully in American custody and serious questions as to whether he can be prosecuted because of his age.

This made me wonder whether Muse might actually invoke the prohibition on perfidy in his defense? Perfidy is the killing, injuring, or capturing of adversaries by “[a]cts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.”  I’m at a loss, however, to see how it applies to Muse.  He apparently wasn’t just on board to negotiate an end to the hostage situation, but may actually have been there to get medical attention for his injuries.  Moreover, there’s the small problem that while “negotiating,” events unfolded on the lifeboat that effectively ended any further need for negotiations.  In any case, international humanitarian law treaties give Muse no support–although perfidy is prohibited in international armed conflicts and classic civil wars, it was left out of other non-international armed conflicts covered by Additional Protocol II to the Geneva Conventions.  Perhaps customary international humanitarian law might offer some support, although its content is more closely contested.  But I’m not aware of any analogous instances where nation states viewed themselves bound by the perfidy prohibition with respect to negotiations with pirates (or even terrorists for that matter).  I’d be interested in such evidence, of course, but am otherwise inclined to adopt the standard view of pirates as criminals under both international and domestic law.  As such, I’m not sure they have any real rights to “negotiate” terms (even if they may be entitled to other rights of due process, humane treatment, etc.) Moreover, even though I don’t take the widest view of universal jurisdiction, I’m hard pressed to see how piracy–which is always cited as the paradigmatic example for such jurisdiction–cannot be prosecuted by the United States here.

So, where is this flag of truce idea really coming from?  Might this not be another example where real life imitates Hollywood?  Is this simply a manifestation of the notion that there’s some “pirate’s law” out there, including the right of parlay, that entitles its invoker with free passage to negotiate with a ship’s captain until the negotiations are complete?  Now, the first (and only the first) Pirates of the Caribbean movie was great, and I loved the right of parlay as a plot device.  But, I’m not sure why nation states would care about any mythic pirate law, and even if they did, it’s probably important for Muse and his defense counsel to remember the exact scope of the right of parlay as discussed in negotiations between Elizabeth Swann/Turner and the Pirate Captain Barbossa:

Elizabeth: Captain Barbossa, I am here to negotiate the cessation of hostilities against Port Royal .
Barbossa: There are a lot of long words in there, Miss; we’re naught but humble pirates. What is it that you want?
Elizabeth: I want you to leave and never come back.
Barbossa: I’m disinclined to acquiesce to your request. Means “no”.
Elizabeth: Very well. I’ll drop it.
[dangles medallion over the sea]
***
Barbossa: Very well, you hand it over and we’ll put your town to our rudder and ne’er return.
Elizabeth: [she hands it over] Our bargain?
Bo’sun: Still the guns and stow ‘em, Signal the men, set the flags and make good to clear port.
Elizabeth: Wait! You have to take me to shore. According to the Code of the Order of the Brethren…
Barbossa: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate’s code to apply and you’re not. And thirdly, the code is more what you’d call “guidelines” than actual rules. Welcome aboard the Black Pearl, Miss Turner.  

http://opiniojuris.org/2009/04/22/do-pirates-have-a-right-of-parlay/

12 Responses

  1. Great post. Even if pirates were protected by the Geneva Conventions, when engaged in illegal attacks on civilian shipping I would think its protections would not apply.

    It’s a nice question about the third common article, and I talk more about that in a new post on the Volokh Conspiracy.  Of course any Geneva Convention protection would not prevent prosecution for the crime of piracy, but it might slow down and increase the costs of such prosecution.

    But common article 3 is chump change. The real action is in getting prisoner of war status, and one could expect to hear the pirates make more claims that they’re acting as an ad hoc coast guard to protect against illegal fishing and so forth. They have been spinning this yarn for a while now (this does not make it false). The possibility of prosecution may focus their PR efforts (yes, they have official spokesmen) and perhaps even affect their internal organization.

  2. Duncan, great post.  I don’t know whether your genius extends to cross-marketing, but you may be aware that your recent guest, John Dehn, recently wrote a fascinating article on the very subject of perfidy.  

    Putting aside the status issue (cf. “you must be [in an international armed conflict] for the [Geneva] code to apply and you’re not”), I don’t know whether the factual controversies (whether he was also on board for another reason, or whether the need to negotiate lapsed) matter.  Isn’t the touchstone whether the US deceitfully feigned intent to negotiate under the flag?  As to whether he can claim that he actually relied, it isn’t even clear to me that  violation of any norm against perfidy would be remedied by dismissal of criminal charges.

  3. Response…

    I agree with Eugene and Ed that this is a very interesting post on a great topic. It led me to wonder how the Ker-Frisbie doctrine played into this; ie it traditionally doesnt matter in American law how a criminal defendant appears before a trial court, even if–as in Alvarez-Machain–his capture violated international law.

  4. The Hague Agreements on the Laws of War explain that “A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability” The role of the negotiator exists only while the belligerent he represents exists. Once the other three pirates were killed, the fourth pirate represented nobody but himself and consequently lost his status as negotiator (assuming he was there to negotiate and not, as some report, just to receive medical treatment, and assuming that pirates have a right to negotiate). Also, one of the things you negotiate is surrender, which he did quite reasonably after the other three pirates were shot and the hostage was freed. At that point, if he returned to the boat it would have been about 10 seconds before he was recaptured, during which time he might very well have ended up dead.

    Had he been captured before the other three pirates were killed, and had he advanced under a white flag, then you might at least argue he had some protected status. Once the others were dead, however, the claim disappears.

  5. Kal, yes, the Ker-Frisbie question is what made me wonder about the remedy. 

    Mr. Gilbert, it’s hard to tell what is being contended by the lawyer.  If the question is perfidy, I don’t know that what happened to his compatriots matters.  The U.S. wrong (if wrong there was) would have unfolded when he was conned into proceeding; it would be strange if that changed because a divide-and-conquer tactic actually succeeded.  I agree with Duncan that it seems unlikely that perfidy norms apply, however, and it is sounds like a distortion of the facts to say he was was there to negotiate.

    The Hague question (if Hague applies) would relate to whether he was wrongfully detained.  Whether upon the death of all of his compatriots a parlementaire is entitled to be released and given a count of ten Mississippi before being subject to recapture is one on which there may be very little law. 

  6. Thanks for the thoughtful comments everyone.  I agree that there’s a lot of issues to parse through here.  For example, I think Ed is right that the medical treatment issue may not matter if some part of Muse’s presence was to negotiate (I made the point though precisely because I wondered if the prosecutors will argue Muse was only on board to get medical treatment and for no other purpose).  Similarly, I was intrigued by Kal’s suggestion that any analysis falls away before Ker-Frisbie.  Although I’d not considered it in my original post, it seems likely that doctrine would apply here.  That said, I wonder if there’s some chance that it can be distinguished.  My recollection is that in Ker, a diplomat exceeded his authority and kidnapped the defendant he’d been sent to request the extradition of.  Similarly, in Alvarez-Machain, I recall that at least some members of the Court took into account the fact that the bounty-hunters, not the USG agents, did the actual kidnapping, even if the DEA arranged and paid for it.  In this case though there’s no question of government actors acting beyond their authority or non-state actors producing the defendent’s presence in US court.  So, perhaps Muse will argue that the direct action of the Navy Seals goes beyond Ker-Frisbie, and warrants direct consideration of the propriety of the goverment’s actions (of course, as my post indicates, even if that argument succeeds, I think Muse will have a hard time proving he is the victim of any wrongdoing here).  

  7. I am sorry for jumping into this discussion with a very simple question, but why should IHL be applicable in this case? I don’t want to sound like an old-fashioned lawyer here, but we are (fortunately!) hundreds of miles away from “protacted armed violence”…
    These pirates are, in my view, criminals to 100%, nothing more, nothing less.

    After the Pirates of the Caribbean, will we also apply IHL to the Gangs of New York!?

  8. I don’t see this as a legally challenging issue at all.  The law of war applies to conflicts contested between political entities.  Traditionally they had to be nation states, but I am on record as arguing that they can be applied to non-state groups such as al Qaeda which use force for political purposes.

    The law of piracy, in contrast, applies only to activities conducted for private gain, NOT political purposes.  This is why nations had to adopt a special convention for the Suppression of Unlawful Activities against shipping to deal with matters like the Achille Lauro hijacking.  While navies have long dealt with pirates, they do so not under the law of war but essentially under law enforcement type rules.  A “flag of truce” and “perfidy” have no legal status outside the law of war.  So while we might applaud this pirate’s defense counsel’s ingenuity in raising the idea, the court should ultimately reject it as frivilous.

    While some of the pirates may have originally been motivated by the egregious exploitation of Somalia’s EEZ by external powers, there can be no credible claim to combatant status on the part of individuals who hold merchant ships and their crews for cash ransom regardless of their nationality, type of vessel, or location of capture.  Perhaps if they detained only foreign fishing boats or waste dumping vessels seized in the Somalia EEZ they might establish some claim to militia status or even levee en masse.  But let’s be real — the conduct these guys are engaged in is piracy for private profit and they are just criminals.

  9. Philipp and Dave — I’d hoped my post would convey that I’m largely in agreement with your bottom lines about Muse’s case on the merits.  I just don’t see this as an IHL situation, let alone one governed by the Geneva Conventions.  That said, it’s clear that at least some people, including Muse’s defense counsel, will argue that they apply and I was trying to figure out why or how they can make such arguments.  And, on a lighter note, I’ll confess that I also wrote the post because the first thing I thought of when I hear about the flag of truce idea was the Pirates of the Caribbean quote: “the code is more what you’d call ‘guidelines’ than actual rules.” 

  10. I largely concur in Dave’s analysis. However, given that right-wing folks are linking the pirates to Al-Queda  or Islamicist groups in Somalia’s civil war; AND left-wing folks are explaining them as responding to resource exploitation by foreign countries, it looks like you have a good “in” for IHT from either angle. (By the way,  l I think both stories have some truth in them but are vastly overstated; as Dave correctly says, its about the money).

    That their activities are overbroad for the stated political purposes need not take them outside the IHT framework; it might just make the punishable once caught, much like Al-Queda terrorists.

    Again, these are not in my view obviously winning arguments. But given that a state of international armed conflict existed in Somalia until a few months ago (when Ethopian troops left), and maybe goes on today (note the attacks of AU peacekeepers), this might be enough to get them an Article 5 hearings if one thinks access to such hearings should require a relativley low threshold showing.

  11. As to whether the laws of war or international humanitarian law applies to pirates, consider some language from an early U.S. Supreme Court case:
    “Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation, for they are, in truth, the common enemies of all mankind, and as such are liable to the extreme rights of war.

    The Marianna Flora
    , 24 U.S. 1, 40-41 (1821).   This passage suggests that the laws of war apply to pirates.  It is also noteworthy to point out that vessels and piratically taken cargo can be taken as prize as are vessels and cargo belonging to hostile states under the laws of war.  None of this is to say that pirates have combat immunity.

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