Do Pirates Have a Right of Parlay?
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.