How to Define Piracy (Cont’d): U.S. Judge Dismisses Piracy Charges

by Julian Ku

In the first U.S. court opinion on piracy since 1820, a U.S. judge in Norfolk, Virginia has dismissed piracy charges against Somali defendants in United States v. Said. The Court held that attempted piracy is not piracy for the purposes of U.S. criminal law.  (h/t  Eugene Volokh).

As I mentioned in an earlier post, the relevant U.S. statute criminalizing piracy leaves its definition to “the law of nations.” I guessed (wrongly) that the Court would adopt a Sosa-like approach to incorporating norms of international law into U.S. law and find that attempted robbery at sea sufficiently well-accepted by contemporary international consensus to support a criminal law violation.  To my surprise, the Court seems to have held that it is obligated to use the definition of piracy as it was understood under the law of nations in 1819, when the U.S. piracy statute was enacted. It refused to rely on contemporary international definitions of piracy on the grounds that they are either irrelevant or too uncertain to constitute a clear definition.

I don’t know that much about the law of piracy under contemporary international law, but I am a bit surprised that there would be the lack of consensus on the question of whether attempt constitutes piracy.  My impression is otherwise, and in fact none of the sources the Court cites for the proposition that piracy is undefined under contemporary international law seem to be talking about the attempt issue.  Prof. Eugene Kontorovich has more discussion of the case over at the Volokh Conspiracy, and he seems to think that the Court is just wrong on this point.  Piracy definitions may be controversial, but probably not on this point.

And like Prof. Kontorovich, I am a bit unsure what I think of the result here.  I understand that a judge would want to give the benefit of any doubt to the criminal defendants here, but I am doubtful of the Court’s seeming embrace of the “frozen in 1819″ approach to interpreting the piracy statute.  Given explicit delegation of interpretive power by Congress, the international consensus and executive branch practice in favor of including attempts as part of “piracy,” I am tempted to side with the government here.  But the Court’s result is certainly defensible.  It is also appealable, although the government may not bother since they have plenty of other non-piracy charges to use against the defendants.

6 Responses

  1. I don’t think the judge adopted the “frozen in 1819″ approach, though I think he’s still clearly wrong on the law of nations issue.  He seems to have examined how piracy has been defined in US law since Smith, found a consistent definition that excluded attempt, and then relied on that definition instead of the more vague international standard. (And the attempt issue aside, I think it’s not unreasonable to say that the customary definition of piracy is not completely clear.)  It’s kind of the chickens coming home to roost — viewing international law through the (distorting) US lens helps justify prosecuting imaginary war crimes at the military commissions (conspiracy, material support, murder), but hurts here, in the piracy context, because the US definition is narrower than the international one.

  2. 1819!  What a joke!

  3. Is a copy of the opinion available yet? If so, where?

  4. I’m just not convinced that firing a threatening shot from an assault rifle and then promptly having your boat blown up by a 25 mm autocannon rises to the level of piracy.

    I mean, they probably were there to commit piracy, but they never got the chance.

  5. Julian, why do you say this is the first U.S. court opinion on piracy since 1820?  The opinion cites several decisions later than 1820?

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  1. [...] jurisdiction law expert) Eugene Kontorovich.  Over at the international law blog Opinio Juris, Julian Ku and David Glazier comment further.  Like Eugene, they think the District Court dismissal was on [...]