[Eugene Kontorovich, guest-blogging, April 20, 2009 at 7:31pm] Trackbacks
Somali Pirate in New York on Tuesday

The pirate captured by the Navy last week in the rescue of the Maersk Alabama will apparently be prosecuted in federal court in New York. It will be a fascinating case (if he doesn't plead guilty): perhaps the first piracy prosecution in the United States since the late 19th century, in the first prosecution of a foreigner in a much longer time.

He may be charged under the federal piracy statute, which carries a life sentence for piracy against US vessels. However, he may also be charged under 18 U.S.C. § 2280, which codifies the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the “Maritime Safety Convention”). That treaty was drafted as a response to the Achille Lauro hijacking by Palestinian terrorists in the mid-1980s. The treaty criminalizes acts of violence on or against international shipping, which is a broader range of conduct than piracy. While it was intended as a response to international maritime terrorism, it could just as well be used against piracy itself.

There are a few reasons the Justice Department might choose to act under the treaty as well. They may wish to breathe life into the rather moribund treaty, which has once been used as a basis for prosecution anywhere in the world. It could be useful in other piracy cases that do not fit the technical definition of piracy, i.e., where the attack occurs in Somali territorial waters. (Ruth Wedgewood argues the federal piracy statute needs to be updated to explicitly include waters within a nation’s exclusive economic zone, but the Maritime Safety Convention clearly applies an exclusive economic zone seems to obviate the need for such reform.)

The prosecution would not be the first American case 18 U.S.C. § 2280. As I describe in the forthcoming International Decisions: United States v. Shi, 103 AMERICAN JOURNAL OF INTERNATIONAL LAW __ (July, 2009), in a case finally resolved by the Ninth Circuit last year, the statue was used in a universal jurisdiction prosecution of a Chinese cook on a Seychelles-flagged fishing trawler who went postal, killed the officers and briefly took over the vessel. The defendant was not charged with piracy because under international law it does not include mutiny and other true internal disturbances on a ship. However, the Ninth Circuit in a fit of romanticism erroneously invoked piracy law on appeal.

Taking into New York and trying him will almost certainly cost more than the $1 million average ransom for pirated vessel. This doesn’t make it a bad idea, if it deters subsequent pirates. That depends in part on whether there is capacity to prosecute Pirates on a large scale. If this is a one-off thing, it will deter no one.

While I have written about the likely difficulty of prosecuting pirates, I anticipate this case to be a relatively straightforward one. The crime in question was at the center of global attention for a week. This guy was likely filmed by several Navy drones, aircraft and other assets. And given the groundbreaking nature of the case, I'm sure vast efforts will be taken to get it right.

But this is just one pirate. Hundreds have been captured and released by the NATO-lead coalition. It is not clear if this prosecution could be replicated on such a scale, and in many less-well documented cases.

One thing is certain. The defendant has won second prize in the piracy lottery. So far, deterrence is not on the horizon. From the moment he was captured by US forces, the alleged pirate's life expectancy went up by decades. In the coming months, years and maybe decades, he is likely to get the best nutrition and accommodation he or anyone he knows has ever had. Given that he did not kill or injure anyone, a life sentence is very unlikely. If he serves 15 years in a federal prison and is then allowed to remain in America, he will likely come out the healthiest, most educated and perhaps oldest former Somali pirate around.

Related Posts (on one page):

  1. Somali Pirate in New York on Tuesday
  2. Pirate Prosecution NIMBY: Catch-and-Release or the Kenya Option