By KEITH JOHNSON
![[pirates0813]](http://si.wsj.net/public/resources/images/OB-JO674_pirate_G_20100813173222.jpg)
Mary Evans Picture Library/Everett CollectionArab corsairs are pictured nearly getting away with their loot, including a woman, when attacked by indignant fishermen, in this early-19th-century painting.
NORFOLK, Va.—Not since Lt. Robert Maynard of the Royal Navy sailed back triumphantly to nearby Hampton Roads in 1718 with the severed head of Blackbeard swinging from his bowsprit has this Navy town been so embroiled in the fight against piracy.
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For the first time since the Civil War, accused pirates will be put on trial this fall in a federal courtroom. The defendants are six Somali men fished out of the Gulf of Aden, between Somalia and Yemen, in April after allegedly firing on a U.S. Navy ship, which blew apart the tiny skiff they were on.
Prosecuting pirates, rather than hanging them from the yardarm, is the modern world's approach to the scourge of Somali piracy that has turned huge swathes of the Indian Ocean into a no-go zone for commercial vessels.
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But there's a problem: Some 2,000 years after Cicero defined pirates as the "common enemy of all," nobody seems able to say, legally, exactly what a pirate is.
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U.S. law long ago made piracy a crime but didn't define it. International law contains differing, even contradictory, definitions. The confusion threatens to hamstring U.S. efforts to crack down on modern-day Blackbeards.
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The central issue in Norfolk: If you try to waylay and rob a ship at sea—but you don't succeed—are you still a pirate?
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It may seem strange there should be doubt about an offense as old as this one. Piracy was the world's first crime with universal jurisdiction, meaning that any country had the right to apprehend pirates on the high seas.
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![[piratesp1]](http://sg.wsj.net/public/resources/images/P1-AW726_pirate_NS_20100813145617.gif)
The Romans took piracy so seriously they overrode a cautious Senate and gave near-dictatorial powers to an up-and-coming general named Pompey, who soon swept away piracy in the Mediterranean.
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In more recent centuries, European countries such as Britain cracked down on pirates—except when busy enlisting certain ones, dubbed "privateers," to help them fight their wars by raiding enemy ships.
Pirates even spurred the creation of the U.S. Navy, after Thomas Jefferson erupted over the cost of paying tribute to the Barbary Corsairs for safe passage of U.S. merchant ships. At the time, the U.S. was paying about one-tenth of the federal budget to the pirates. Supplied with warships, President Jefferson waged war on the Barbary pirates (whence the line "to the shores of Tripoli" in the Marines' Hymn). By 1815, the North African pirate kingdoms had been subdued.
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When Congress dealt with piracy in a statute four years later, the crime was so easy to recognize that legislators didn't bother to describe it, just the punishment. The 1819 statute that made piracy a capital offense (since changed to mandatory life in prison) simply deferred to "the law of nations." That legal punt has kept American jurists scrambling ever since.
Mapping History's Pirates
For centuries, buccaneers, privateers and pirates have patrolled the seas seeking booty, doubloons and renown. Read about some of the most notable.
The stage was set for the Norfolk trial on April 10 of this year when the USS Ashland, cruising in the Gulf of Aden about 330 miles off Djibouti, was fired upon at 5 a.m. by Somali men in a small skiff. The Navy vessel, an amphibious dock landing ship, returned fire with 25-mm cannon, wrecking the 18-foot skiff and sending its six occupants overboard.
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The Ashland sent a search boat to recover the Somalis and photograph the smoking hulk of the skiff, which contained at least one weapon and what looked like a grappling hook or anchor. Though that boat was blasted to pieces, even when pirate skiffs survive, the ships they target are often loath to bring the skiffs aboard. One captured by a Navy force in 2006, according to the judge advocate's testimony in a subsequent trial in Kenya, was crawling with "roaches the size of leopards."
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In Norfolk, the prosecution has begun its effort to convince the U.S. District Court for the Eastern District of Virginia that the quickly foiled Somalis are guilty not just of lesser charges they face but of the main charge of piracy..
Pirate suspects were moved into the federal courthouse in Norfolk, Va., for indictment on April 23, 2010, accused of attacks on U.S. naval vessels off the coast of Africa.
"Violent attacks on the high seas without lawful authority have always been piracy under the law of nations, in 1819 and today," said the lead prosecutor, Benjamin Hatch, at a pretrial hearing last month.
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"So if one ship fires a bow-and-arrow," asked Judge Raymond Jackson, rubbing his brow, "or a slingshot, or a rock, those are all acts of violence, and thus piracy?" The prosecutor nodded.
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The public defender, Geremy Kamens, weighed in. "That a slingshot fired upon another ship would expose the defendant to a mandatory life sentence shows the absurd result of this reading," he said. The defense added that under this broad definition, Greenpeace activists could be considered pirates for their anti-whaling antics on the seas.
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The defense lawyers trawled through history books, coming to rest upon an obscure 1820 Supreme Court ruling.
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"We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea," Justice Joseph Story wrote for the majority in the case of United States v. Smith.
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That gave the defense lawyers their main argument: Piracy is robbery on the high seas; it isn't merely attempted robbery at sea, which is covered by a separate statute that the Somalis are charged with as well.
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Since the attack on the Ashland clearly failed, it wasn't piracy, the defense argues, and therefore, the most serious charge should be dropped.
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But the prosecutors, too, have probed early sources—17th-century Dutch jurists, 18th-century British writers, 19th-century maritime cases, an 1800 speech by then-congressman John Marshall, and a slew of international treaties.
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The prosecution has leaned heavily on a 1934 ruling by Britain's Privy Council, which pondered the case of a similarly failed attack at sea, near Hong Kong. In that case, the jury found the defendants guilty, but said its verdict was subject to the question of whether it's really piracy if no actual robbery occurs. The court in Hong Kong said it isn't, and acquitted the attackers.
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The Privy Council members, however, after hacking through thickets of legal technicalities, ultimately reached a different conclusion. "Actual robbery is not an essential element in the crime of piracy," they said; "A frustrated attempt to commit piratical robbery is equally piracy."
They added, with more than a hint of exasperation: "Their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law."
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Beyond the legal wrangling and obscure historical references, the implications of the case in Norfolk are serious. Piracy's golden age may have passed two centuries ago, but it remains a scourge in places like the Strait of Malacca in Indonesia and Malaysia, off the coast of Nigeria, and above all off the east coast of Africa, where the disintegration of Somalia has led to a major resurgence.
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The first half of 2010 saw about 200 raids and unsuccessful attacks on ships at sea worldwide, the bulk of them off Somalia. In early August, two cargo ships were hijacked. In all, an estimated 18 ships and their crews are currently being held for ransom.
To fight the problem, the U.S. and the United Nations are counting on prosecuting pirates. Some U.N. officials dream of establishing an international piracy tribunal, similar to the one for war crimes in The Hague.
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In the meantime, the U.S. and other countries have helped Kenya, the closest stable country to the source, to put scores of pirates on trial. But Kenyan law is cumbersome, requiring witnesses to testify on three separate occasions, a tough order logistically for merchant sailors. The European Union is now trying to jump-start Kenya's pirate prosecutions—the first sentence will come later this month—but progress is slow.
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As a result, attackers captured by European warships in the Indian Ocean often are let go for lack of any real legal recourse. A Spanish warship caught seven Somali pirates red-handed in early August, men who had been trying to waylay a Norwegian chemical tanker. The Spanish frigate immediately released them because it would have been difficult to prosecute them, the EU naval force off Somalia said.
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That leaves courtrooms like the one in Norfolk as among the best hopes for bringing pirates to justice and deterring future ones. But even seemingly clear-cut cases don't necessarily pass muster in court.
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After a celebrated incident in April 2009, when U.S. Navy Seals snipers killed three Somali men holding an American captain hostage on a small boat after a raid, rescuing him, the lone Somali survivor of that attack on the Maersk Alabama pleaded guilty to lesser charges in New York, not to piracy.
Indeed, the last U.S. piracy conviction was in 1861, of a Confederate blockade runner.
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.
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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.
Judge Jackson is expected to rule soon.
Write to Keith Johnson at keith.johnson@wsj.com
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How to Define Piracy Under U.S. Law and the “Law of Nations”
by Julian Ku
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”.
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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.
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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.
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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.
(==>. door is ajar)
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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).
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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.
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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.
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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 (1) explicit delegation of interpretive power by Congress, (2) the international consensus and (3) 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.
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How to Define Piracy (Cont’d): A Critique of U.S. v. Said
by David Glazier
[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:
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(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.
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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.
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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.
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I see two flaws in the court’s logic.
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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.
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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.
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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.
(==>. treaty as effective law rather than as a mere secondary source
==>. if applying customary int'l law (CIL), no need to consider Somalia as a state party to a treaty
==>. however, the court seem to see definition of piracy did not rise to CIL)
==>. jus cogens? piracy is said to constitute jus cogens, isn't it ? )
==>. jus cogens in substantive law, universal jurisdiction from a jurisdictional point of view
==>. the court does not buy into it? )
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My crystal ball predicts the Fourth Circuit will reverse if the government makes more coherent arguments on appeal.
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