LAW | Piracy charge did not fit the facts

The dismissal of piracy charges against six Somalis has sparked outrage in some circles, but the judge was simply following the law

ON August 17 charges of piracy against six Somalis were dismissed in the US. The cry is universal outrage. They are pirates. How can this be? The sky is falling. The four horsemen are coming over the horizon.

However, Judge Jackson was exactly right, despite academic twittering and emotional handwringing. My good friend Dennis Bryant, an American observer, reminds us that this was a very narrow ruling on a very narrow question. The world will not end.

So avast chattering. Listen up. Jackson ruled neither knowing nor caring about the claque. He and the case were governed by law. He looked at the facts and the law of piracy. He protected the rights of all parties. He found no piracy by law.

The facts: The defendants, in a small craft in the Gulf of Aden, were approached by a US warship which took small arms fire and returned it with naval gunfire, killing one passenger, burning the craft and observing an AK-47 in it. The survivors were captured and held; they had not attempted to board the warship.

The defence asked for summary judgment on the law as misapplied. The law arose in 1819: “[W]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought to or found in the United States, shall be imprisoned for life.” Read that three times putting your finger under the words and moving your lips. The congress that wrote the law is the problem: not the ruling.

The law: congress is empowered to “define and punish piracies and felonies on the high seas”; international law — formerly the law of nations — is law separate from domestic US law and is customary law; in civil cases when customary international law is invoked “courts must proceed with extraordinary care and constraint” because there is no definitive source of that law; nations abide by its principles from legal obligation and mutual concern; there is an hierarchy of factors in interpreting customary international law; past decisions must be unambiguous and clear.

The criminal law is strongly protective: a defendant has benefit of due process; there are no snap judgments; a defendant cannot be criminally liable if he did not understand what acts were proscribed; a law cannot be enforced in court if it is so vague ordinary people must guess at its meaning; criminal statutes must be read and construed strictly; no novel or creative reading of a criminal statute is allowed as the government would have it.

A statute is interpreted as at the time enacted — 1819, not 2010. The US relies on prior law to refine and interpret statutes. There is one case in US law which has looked directly at the definition of piracy. It was appealed. The Supreme Court in 1820 defined piracy simply: “robbery” or “forcible depredation” at sea.

That is piracy in domestic law or in the law of nations. Subsequent law has agreed. Bales of hay have been made of “piracy as defined by the law of nations” by the chattering class. No deal. The government tried to use current definitions. It failed.

Even if it had not, the court found the current definition of piracy is unsettled law. Therefore Judge Jackson — as required by law — relied on the law of 1820 and applied it to the charge of piracy.

The government wanted to expand piracy to include forcible depredation as any act under the piracy statute, not simply robbery at sea. It provided no criminal cases for that.

In civil cases “piratical acts” require intent to plunder. However, there is no civil offence for attempted or intended piratical acts. Other law the government supplied was unclear. Therefore, the court concluded the government’s attempt was not persuasive. Further, its definition of “depredation” requiring assault or aggressions was not in the law dictionary. The court rejected the concept that any act at all was forcible depredation.

Another statute says it is an offence to attack a vessel with the intent to plunder. The case law says however, that just because attempt to plunder is law, the piracy statute is not necessarily the same thing. The government charged the defendants with offences under that law as well.

The Congress is presumed to know what the law is at the time it passes a statute. This implies in law that two statutes in the same code should not be read as to make superfluous another.

The upshot here: if you want to be a pirate, you must rob or be forcible and depraved aboard. Just because one is in a small craft in the Gulf of Aden wearing a pirate suit and looking like a pirate does not make one a pirate.

The court further looked at the provocation by the defendants. It simply did not merit life in prison for piracy when any provocation will do — even a slingshot or, one would think, a spat wad of gum.

So what do we have? A judge followed the law. A charge did not fit the facts. Each party was protected. A fair and impartial hearing was held. The rule of law works. These men could not be charged with piracy because as a matter of law they committed no piracy.

Hats off. Judge Jackson has furthered the rule of law.

John AC Cartner is a maritime lawyer practising in Washington, DC. He holds the US Coast Guard’s unrestricted master mariner certification and is the principal author of The International Law of the Shipmaster (2009) Informa/Lloyds.



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One response to “LAW | Piracy charge did not fit the facts

  1. Pingback: LAW | Piracy charge did not fit the facts « Safe Seas

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