Disaster In The Courts, Disaster In Piracy-Infested Waters

OP ED By Eugene Kontorovich, Associate Professor at Northwestern University Law School and a leading expert and author on maritime piracy.

In a surprising and dramatic development, a federal judge in Virginia threw the international campaign against Somali piracy into jeopardy this week by dismissing piracy charges against six Somalis accused of an attack on a U.S. warship. The holding turned on a statute dating back to 1819 that punishes “piracy against the law of nations.” The judge, in an unprecedented decision, held that attempted piracy is not itself part of the international law definition of piracy.

The practical effects of the decision will be disastrous for anti-piracy policy. Pirates are generally caught in the attempt, or not at all. Once pirates are onboard a vessel, it becomes a hostage situation. The owners negotiate and a ransom is paid; the pirates are allowed to escape. The dramatic recapture of the Maersk Alabama was undertaken because it was a U.S. ship, but this is rarely the case. After a successful seizure and ransom, it is hard to link suspected pirates at sea to particular attacks.

The ruling was based on out-of-context language in an 1820 Supreme Court case (and an of out-of-context passage from my own writings). It contradicts both binding treaty law and universal practice. The comprehensive Law of the Sea treaty clearly includes attempts as part of piracy. The judge wrongly claimed the U.S. did not ratify the treaty. It ratified the 1958 version that had the same piracy language, and accepts the current version as stating customary international law.

Over a hundred Somalis are being held in Kenya or the Seychelles on piracy charges roughly 20 separate cases. The suspects were apprehended by the unprecedented coalition of naval forces from roughly two dozen countries that is policing the Gulf of Aden and adjacent waters. The majority of these cases only involve attempts.

This broad and uniform practice by a variety of nations, supported by numerous Security Council resolutions further shows the court simply got the international law wrong. Moreover, the United States has been at the forefront of this practice. In 2006, the U.S. captured Somalis involved in an attempted attack on a vessel and turned them over to Kenya for trial. This pioneered the practice of using Kenya as a forum for trying piracy suspects captured by third-party countries. Others captured by the U.S. since then have also been involved in attempts. Yet according to the court, U.S. involvement in these captures may violate international law.

The court’s ruling will roil already strained relations with Kenya and the Seychelles, the only states that have proven willing to prosecute pirates. These poor states have always been reluctant about bearing the primary burden of dealing with pirates. Presumably it won’t sit any better with them when U.S. courts declare that they will not hear similar cases.

The Norfolk case involves an attack on a U.S. vessel, so there are many additional charges against the defendants. The Kenyan cases have no connection to that country – they are brought under the international law doctrine of universal jurisdiction. Without the piracy charges, there is little else for those countries to hold the defendants for.

Of course, the governments of the U.S. and other leading naval powers share some of the blame for failing to update their piracy statutes. To be sure, in marked contrast to the debacle in Virginia, the Netherlands recently convicted five Somali pirates under a 18th century statute with little difficulty – even though it was the first time it was ever used. Still, it would be best to modernize these laws which, given the ongoing boom in piracy, will be ever more needed. Such a modernization could clarify the policy toward attempts and conspiracy.

Any modernization should also consider something like the “equipment laws” that were so effectively used by Britain and other nations to repress the slave trade in the 19th century, an effort that is currently being promoted by the One Earth Future Foundation. Under these provisions, having pirate equipment – grappling ladders, huge outboard motors, RPGs and so forth – would be presumptive evidence of piratical intent. This would make it easier to prosecute pirates caught simply cruising around, in between jobs, so to speak. While courts can currently consider such evidence, the U.S. decision shows that the novelty of such cases may make judges very reluctant to convict without clear legislative guidance.