Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30” a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction case like Ali’s.

The government’s novel legal theory resulted in two different appeals, and while the legal theory behind the piracy charges was upheld, the jury acquited Ali a few days ago, though he still faces lesser charges. This is a massive embarrassment for the Justice Department. It launched a high-profile prosecution of a case with no U.S. nexus whatsoever, imprisoned a non-violent defendant for 2.5 years during trial, and proceeded under an unprecedentedly broad definition of piracy.

Why the acquittal? The jury may well have been influenced by the statutory mandatory minimum life sentence for piracy, which seems ill-fitted to Ali’s entirely non-violent accessory participation. In the 19th century, juries often “nullified” piracy prosecutions of low-ranking crew members because of the mandatory death penalty on the books at the time. Or the jury may have been less impressed than the D.C. Court of Appeals by the theory that people on dry land who help pirates after a a hijacking are actually guilty as principals of the full-blown crime of piracy itself.

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