The U.N. Security Council heard a proposal yesterday for the establishment of special courts in Somalia and Tanzania to try suspected pirates.

25 January 2011 – The United Nations special envoy on maritime piracy off the coast of Somalia today proposed the setting up of two special courts inside the country and one in Tanzania to try suspected pirates, saying the problem in the Indian Ocean was getting out of hand and required “strong and decisive action.”

Jack Lang, the Special Adviser on Legal Issues related to Piracy off the Coast of Somalia, said the international community should work towards “Somaliazation” of responses to piracy by helping local authorities in the regions of Puntland and Somaliland to enhance their judicial and prison capacities in order to prosecute and jail captured pirates.

In his report to the Security Council, Mr. Lang also proposed the establishment, for a transitional period, of a Somali “extraterritorial jurisdiction court’ in the northern Tanzania town of Arusha to deal with piracy cases.

He told the Council, as well as a news conference following the meeting, that the raiders who seize ships and sailors and demand huge ransoms are becoming “masters of the Indian Ocean” with their increasingly sophisticated means of carrying out the criminal actions.

The international component of the cost to train judges, prosecutors, lawyers, prison guards is “essential,” Mr. Lang said, adding that the UN, the African Union, the European Union and other organizations should contribute.

The cost of the measures he has proposed is estimated at about $25 million, a “relatively modest” expense compared to the estimated $7 billion which he said was the cost of piracy.

This seems like a reasonable start, although I think the details are crucial. Nor is this a complete solution, since we are talking about two courts (and two prisons).  But in combination with self-help measures, and perhaps loosening the rules of engagement for naval forces defending against pirates, the courts can certainly help.  Locating a court in Somalia seems a good idea, hopefully it won’t become another NGO boondoggle.

[We are pleased to have David Glazier, a professor of law at Loyola Law School Los Angeles, share his thoughts on the U.S. District Court's recent interpretation of the piracy statute in U.S. v. Said]

As I read Judge Jackson’s decision, the crux of his holding boils down to the following syllogism:

(1) Federal criminal statutes must be interpreted according to the meaning of the words at the time they were enacted;

(2) The language in the current piracy statute was originally enacted in 1819; therefore,

(3) The current definition of piracy must be that understood in 1819.

The facts stated in the indictment are simply that “at least one person on Defendants’ skiff shot a firearm” at the USS Ashland. This act must either fall within the legal definition of piracy or the judge must dismiss this count. A literal reading of the Smith language excludes mere attempts at robbery, hence the decision to dismiss.

It would be relatively straightforward IF the 1819 statute (now 18 U.S.C. § 1651) stated the elements of the crime of piracy. Unfortunately it only refers to “piracy as defined by the law of nations.” Judge Jackson determines that the U.S. Supreme Court’s 1820 decision in U.S. v. Smith, upholding the validity of the 1819 statute while declaring that piracy is “robbery or forcible depredations . . . upon the sea” provides the applicable definition. While the court discusses subsequent cases and scholarship, it is dicta under the decision’s logic, and most sources simply refer back to Smith anyway.

I see two flaws in the court’s logic.

First, as Eugene Kontorovich has already noted, the Smith holding simply states that robbery is piracy (all that was necessary under the facts of that case); it doesn’t say that only robbery is piracy.

Second, since the 1819 statute refers to the law of nations rather than to a specific definition of piracy, what logically ought to be locked in by the rule of interpretation the court relies upon is the reference to the law of nations, not the definition of piracy contained therein. While the court does find some modern sources stating that the definition of piracy is unsettled in customary international law, that view flies in the face of the two widely ratified treaties, the 1958 High Seas Convention and the 1982 UN Convention on the Law of the Sea which include the same definition in reasonably precise language. Given Senate advice and consent to the ratification of the 1958 treaty, it seems to me that language fairly becomes the operative definition of piracy for U.S. courts under the last in time rule and the supremacy clause. So even a judge with an aversion to international law in general can ground their decision in written federal law. Oddly, however, the court treats these two widely ratified treaties, including one that is the law of the land, as mere secondary sources entitled to no more weight than scholarly commentary. I think that is a fundamental error.

The treaty language, ratified by both the U.S. and Somalia, surely satisfies the constitutional due process requirement which the court noted requires fair warning that the defendant’s conduct is proscribed. Surely it is fairer to hold a Somali defendant to notice of a treaty his (admittedly dysfunctional) nation has ratified than to a foreign 1820 Supreme Court decision. I haven’t read any of the parties’ filings, but from the text of the opinion it appears that both sides engaged in a battle of law office history, using often obscure historical examples to bolster their positions. I would hope that on appeal, and certainly in the other ongoing Norfolk piracy case with similar facts, the government will argue for the application of the treaty language as effective law rather than as a mere secondary source.

My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.

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.

The WSJ has a nice discussion of the tricky legal arguments in the upcoming trial of alleged pirates in U.S. federal court.  Apparently, the prosecutors and defense attorneys are battling over the fact that U.S. statutes criminalizing piracy leave the definition to “the law of nations”.

Now the court in Norfolk must contend with the defense motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. “We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time,” says the public defender, Mr. Kamens.

I love that the defense lawyers are taking a page from Justice Scalia’s textualist approach to statutory interpretation. And it is a sort of compelling argument, although I’m not sure it is right.   Congress has criminalized “piracy as defined by the law of nations”.  It is certainly plausible that they intended to authorize federal courts to interpret the law of nations, as it evolved, when defining piracy.  But it is also plausible to me that Congress would have intended for the courts to apply only definitions of piracy at the time the statute was enacted, especially since this is a criminal statute.

In Sosa v. Alvarez-Machain, the Supreme Court considered the phrase “law of nations” in the quite different context of the Alien Tort Statute.  If we were to adopt that approach, the courts could only adopt definitions of piracy that are as well settled under the law of nations today as they were at the time the piracy statute was enacted.  I bet the lower and appellate courts that consider this question will follow the Sosa approach.  Which probably (although not necessarily) means the pirates here are out of luck.

I tread warily into the debate over the Israeli commando raid on the Gaza flotilla.  There has been no shortage of commentary and reactions abroad (here in the U.S., it seems most folks are unmoved by the whole incident).  Of course, most of the facts are hotly disputed and, frankly, will remain hotly disputed.  Still, let me start by advising IDF critics to drop the silly accusation that Israel committed “piracy,” which various folks have made here, here, and here.  The IDF raid may well have violated international law governing disproportionate and excessive use of force against non-combatants (although the IDF claims their commandos were armed only with paintball guns).  But whatever can be said about the legality of the raid, it was not, as a legal matter, piracy. Let’s go to the U.N. Convention on the Law of the Sea, Article 101:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;

(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(emphasis added).  I don’t think even the Gaza flotilla defenders claim that the IDF raid was “committed for private ends.” (Just the opposite, actually).  And, in general, piracy cannot be committed by a national ship, only by private ships or by national ships that have been taken over by their crews.  (Given my recent brain cramps, I am of course happy to be corrected here by piracy experts out there, but I think this is right).

So can we drop the stupid piracy meme?  There are some very hard legal issues here:  Is Israel’s naval blockade legal? (Probably). If so, was the boarding in international waters legal? (Maybe). And even if so, did the IDF use disproportionate force?  (I have no idea).  This last question is really the key issue here, and it is also the one that is never going to be resolved with any certainty given that it is dependent on neutral factual determinations that will never happen here.

The young Somali captured last year in dramatic U.S. Navy operation has plea bargained himself into a minimum 27 year sentence.

A Somali man has pleaded guilty in New York’s court to seizing a US ship and kidnapping its captain last year.

Abdiwali Abdiqadir Muse now faces a minimum of 27 years in prison. He is expected to be sentenced in October.

Muse is the only surviving attacker on the Maersk Alabama merchant ship off Somalia’s coast in April 2009.

A couple of observations about this result, which should caution folks excited about the effectiveness of U.S. federal courts in combatting piracy. (It appears the defendant avoided a piracy conviction and settled for a lesser charge).

1) Timing: Muse was captured in March 2009 and charged with, among other things, “piracy as defined in the law of nations,” under 18 U.S.C. 1651. It has taken 13 months to get a plea bargain on a lesser charge???  If we were just going to plea bargain him, why did it take so long?

2) Evidence: The logistics of finding translators, and dealing with classified evidence, is another reason these trials are going to take a fair amount of time.  Case in point: the federal trial in Norfolk, Va of another group of Somali pirates was recently delayed for five months just so the parties could sort through classified evidence and find translators.

I don’t say federal courts are doing a bad job here.  But the logistical difficulties are going to make this a very weak and ineffective deterrent to further piracy. As Anne Applebaum notes, the other option was tried by the Russians recently when they “released” a group of Somali pirates on a dinghy 350 miles from shore without an navigation equipment.  The 21st century version of “walking the plank”?

Fascinating video  of a Dutch Navy strike team recapturing a German vessel that had been captured by Somali pirates. It shows just how dangerous, expensive, and difficult it is to combat piracy.  It looks cool, but frankly, the Somali pirates have the Dutch and everyone else outnumbered.  There can’t be that many of these kinds of strike teams and there are a lot of Somali pirates.  And the pirates get to head off to the Netherlands for trial, a place much nicer than where they came from.  (UPDATE: See this FP essay which makes this point very persuasively). Still, kudos to the Dutch Navy (actually, I assume it is the Dutch Marines) for doing their part in this Sisyphean battle.

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.

Here’s another interesting report on the ongoing battle against Somalia-based pirates.  The upshot: some progress is being made, especially with private security forces (including one which uses sound waves to push away approaching pirates).  But legal limitations continue to limit the effectiveness of both naval and private self-defense.

“No commanding officer of any ship wants a situation where he used force and then is told a week later that he shouldn’t have.  That he violated the rules and under international law maybe murder would be applied to that.  It’s a dangerous line to cross,”

One former naval officer suggests creating an in-shore “maritime police” force.

“The proposal is send the warships home.  And let’s get an international task force together of maritime police and put them inside Somali territorial waters under U.N. auspices, with a U.N. Security Council resolution giving them authority,”

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 21^st 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 19^th 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.

Der Spiegel reports from Germany (the article is detailed and worth reading in full):

In the latest dispute over the European Union’s anti-piracy mission off the coast of Somalia, lawyers representing two suspects being detained in Kenya have filed suits against the German government. They want Berlin to foot the bill for the suspects’ defense and ensure they are given a fair trial.

Two suspected pirates detained by German naval forces in a mission off the coast of Somalia on March 3, who were later turned over to Kenyan officials for prosecution, are now suing the government in Berlin for a fair trial.

Attorneys for the men filed a suit on Tuesday demanding that the German government pay for the men’s defense and provide support to a group of suspected pirates currently being held in the Shimo La Tewa prison in Mombasa.

(Update: At the end of this post, I put a note from Eugene Kontorovich on his new paper on piracy, apparently still a discussion draft and not yet on SSRN, but apparently available from him if you contact him at Northwestern.) 

In the midst of so much newspaper op-ed, blogosphere commentary on the piracy issue, Ruth Wedgwood – who has been working on this issue for some time now – has a fine piece up at The American Interest on the larger issues of piracy and international law, The Law Adrift.  If one is looking for deeper examinations of contemporary piracy in law and policy, where do you go?  Ruth Wedgwood’s writing is one place.  Another is the scholarship of Eugene Kontorovich, who began working on this issue as a scholarly question several years ago – Opinio Juris has posted animportant guest comment from Eugene on piracy and why current policies are not working by him; it is well worth reading in the current discussion.  And there is Peter T. Leeson’s brand new book from Princeton UP - The Hidden Hook: The Hidden Economics of Pirates. 

I raise these to note, especially for web researchers who might have drifted here to OJ looking for sources, there are discussions of these issues that go deeper than the op eds and blog posts.  One of Ruth Wedgwood’s important observations is the way in which the edifice of international law precludes ordinary realism:

[T]he UN Security Council voted in November 2008 that foreign navies could target pirates within Somalia’s territorial seas—that is, within 12 miles of shore—so long as they had a letter of consent from the Transitional Federal Government of Somalia. In December 2008, the Security Council voted that foreign states could take enforcement action ashore and in Somali airspace to root out pirate lairs, so long as the Transitional Federal Government again consented. Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense.