U.S. Will Prosecute More Pirates in the Eastern District of Virginia

by Julian Ku

Although the U.S. is already prosecuting a pirate captured last year in New York, I hadn’t realized the U.S. was going to be trying other pirates in federal court as well.  But since Kenya has stopped accepting pirates for prosecution in their courts, I guess it makes sense that the U.S. and other countries will have to step up to the plate. At least 6 are already en route, with up to 21 slated for future trials.  Time to set up shop in Norfolk as a pirate defense lawyer!

Thus far, the only pirates that will be tried here will be ones charged with attacking U.S. vessels or property.  But unless I’m mistaken, I don’t think there is any requirement that the pirate have a connection to the U.S. in order to stand trial.  18 U.S.C. 1651 seems to define piracy very broadly:  “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” This statute has not been used recently, to say the least, since the last reported case I found was in 1958. Moreover, in its earlier incarnation, courts construed it somewhat more narrowly to require at least the involvement of a U.S. ship (although not the involvement of a U.S. citizen) See U.S. v. Furlong, U.S.Ga.1820, 18 U.S. 184. Still, in theory, one could interpret the statute to authorize universal jurisdiction.  If Kenya won’t take anymore pirates for trial, we might see a test of the universal jurisdiction scope of Section 1651.


One Response

  1. The U.S. has a policy of only prosecuting when the attack directly affects the U.S. Here, with attacks on American warships, letting the alleged perpetrators go would look pretty bad (i.e., they’d get neither a military commission NOR a civilian court). However, there have been non signs of increased American willingness to take pure universal jurisdiction cases. Though in the trial of the one previously captured pirate (the Maersk Alabama attack) additional charges for attacks on foreign vessels were subsequently added.

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