A New Approach to Counter-Piracy: Lower the Burden of Proof for Prosecuting Pirates

by Julian Ku

Fascinating speech by Andrew Shapiro, Assistant Secretary for Political-Military Affairs at the U.S. State Department on U.S. government views on counter-piracy policy.  Of special interest, the U.S. may try changing the law on prosecuting pirates.  How exactly to do that is a bit unclear (treaty? custom?), but it seems like a promising avenue.  At least it is a new idea, something typically lacking in this area.

And while we will continue to pursue the 21st Century solutions that Secretary Clinton has spoken about, we will also look to the past for ideas. For instance, the Danish-led working group is actively considering how to enhance the ability of states to prosecute attempt or conspiracy to commit piracy – those cases where we do not capture the suspects in the act of attempting to pirate a vessel but do encounter them laying in wait for their next victim ship with all the trappings of would-be pirates.
One way to do this might be to infer the intent to commit an act of piracy from the possession of piracy-related equipment and the circumstances in which the suspects are encountered. In the 19th Century, states interested in combating the slave trade agreed that vessels found carrying specific “articles of equipment” used for the slave trade, such as shackles and handcuffs, could be declared evidence of a ship’s employment in the slave trade and, unless satisfactorily accounted for by the owner or master, could provide the necessary grounds for condemnation of the ship.
If we were to proceed by analogy in the present piracy context, perhaps states could agree that the mere possession of certain ladders, grappling hooks, and certain armaments at sea in an area known to be a high risk area for piracy attacks should be sufficient to establish intent to commit an act of piracy.

http://opiniojuris.org/2010/03/31/a-new-approach-to-counter-piracy-lower-the-burden-of-proof-for-prosecuting-pirates/

2 Responses

  1. I am obliged by Home Team Spirit to point out that this address was delivered as the keynote at the American University Law Review annual symposium, this year on piracy, and featuring a stellar lineup, including Ruth Wedgwood and many others.  You can check it all out at:

    http://www.wcl.american.edu/secle/founders/2010/documents/033110TroubledWaters.pdf?rd=1

  2. Certainly a promising idea, one first broached in the ASIL-ACUNS-One Earth Future piracy conference Julian mentioned recently.
    http://opiniojuris.org/2010/02/11/experts-release-report-explaining-that-international-law-can-help-suppress-piracy/
    I’m working on a longer piece on the subject.

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