Glazier on Why the Definition of Piracy Matters

Dave has kindly sent another post on piracy.  Here it is.

Kevin graciously offered me the chance to respond to his contrasting reading of the logic of Judge Jackson’s decision dismissing the piracy charge. But since we both reach the same ultimate conclusion—that the correct legal definition of piracy should be that contained in the 1958 High Seas Treaty/1982 UN Convention on the Law of the Sea—I’m happy to let those readers with sufficient interest read the court’s opinion and decide which (if either) of us they agree with. It is a close call and Kevin may well have a better read on it. (I also share his concerns about the invalidity of Khadr’s charges, by the way).

What I think would be a more helpful contribution to this dialog would be to articulate why I think the definition of piracy matters on a larger scale. It probably doesn’t matter much in this case; Said and his comrades still face seven other federal charges and could very well end up with prison sentences tantamount to life terms even without the piracy charge. The real problem with this decision is its potential to weaken overall anti-piracy efforts off Somalia.

Let me first state that I don’t think I’m overly naïve. I have spent some time studying the history of piracy and the results of that inquiry are quite clear. Pirates have always been dependent on shore bases where they can recruit crews, outfit their vessels, and return to enjoy the fruits of their activity, either with the tacit approval of local government or in areas without functional authority. Although naval efforts afloat have been important, ultimately the eradication of pirates, whether based in past hotbeds in England, colonial America, the Caribbean, or South East Asia, was dependent upon the establishment of effective governmental authority ashore. So history tells us that the only permanent solution to Somali piracy will be the reestablishment of an effective Somali state.

In the interim, international naval and judicial efforts can at least endeavor to damp down the volume and provide some measure of deterrence. Naval operations face a daunting challenge. Pirates generally have not been definitively identified until they commence an attack, giving naval forces a very small window of opportunity to react. Once an attack is successful, the risk of harm to the now captive crew and damage to the vessel generally leads to the conclusion that non-forcible means (i.e., paying ransom) are the only prudent solution, and the prospects of interdicting successful pirates heading ashore after receiving their ransom are fairly remote. As a result, most captured Somali pirates are similarly situated to those at issue here—they have launched an ultimately unsuccessful attack. The treaty definition of piracy, which is not limited to robbery but includes “any illegal act of violence . . . committed for private ends” on the high seas by the crew of one vessel against another as well as “any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship” are logically sufficient to allow the invocation of universal piracy jurisdiction over participants in failed attacks. It also offers the potential, not yet actively employed, that armed individuals on small unregistered vessels lacking fishing gear and proximate to shipping lanes could be presumptively treated as pirates based on the language about operating a pirate ship. Eugene Kontorovich tells me that a similar presumption was a key element of 19^th century anti-slavery efforts, allowing the interdiction and seizure of vessels headed to Africa that were outfitted to carry slaves but had not yet taken onboard a human cargo.

Judge Jackson’s interpretation, requiring an actual robbery, eliminates not only the potential for preemption before an attack is launched but also piracy prosecutions for failed attacks. If this stands as the final U.S. legal interpretation, it becomes much more likely that regional countries like Kenya and the Seychelles will decline to accept pirates turned over by third countries, including particularly the United States, for prosecution. Any defense attorney worth his salt will insist that the U.S. position proves that international law still requires an actual robbery, current treaty language not withstanding.

I’m not suggesting that the U.S. should adopt a legal interpretation based on expediency, but rather that what I believe to be a truly erroneous decision, both as a matter of international and U.S. law, has potential consequences well beyond the scope of the cases at issue. If the government doesn’t get its act together and provide more coherent arguments on appeal, the U.S. Navy could find itself joining those other forces off Somalia treating pirates like trout; i.e., joining the “catch and release” program.

(While some acts beyond the definition of piracy can potentially be prosecuted under quasi-universal jurisdiction based on the Suppression of Unlawful Activity (SUA) Convention, the specific definitions found in that treaty would still exclude many attempted attacks – including ones on warships which are at issue in the two sets of Norfolk cases. While SUA is a deliberate effort to overcome problems in the international definition of piracy, it is primarily the “high seas,” “two vessel,” and “private ends” requirements that it addresses, responding to issues raised by cases like the Achille Lauro hijacking and not the Ashland incident.)