• What is Piracy?
  • December 14, 2010 | Author: John D. Kimball
  • Law Firm: Blank Rome LLP - New York Office
  • Two United States district judges in the Eastern District of Virginia handling nearly identical criminal charges against accus­ed Somali pirates have disagreed on what acts constitute piracy. The cases involve separate armed attacks on United States Navy ships, the USS Ashland and the USS Nicholas. In both cases, accused Somali pirates fired at the vessels, but were unsuccessful in capturing them. Instead, the accused pirates were captured and brought to Virginia to stand trial on numerous criminal charges, including piracy. In both cases, defense counsel moved to dismiss the piracy count of the indictments on the grounds that merely shooting at the vessels was not, in itself, an act of piracy.

    In a decision issued in August 2010, Judge Raymond Jackson dismissed the piracy count, holding that under United States law, merely shooting at a vessel is not piracy.1 In a more recent opinion issued on October 29, 2010, however, Judge Mark Davis disagreed and denied defendants’ motion based on his interpretation of the definition of piracy under the law of nations.2 Judge Davis held that, as a matter of law, attacking a vessel is piracy even if the vessel and crew are not captured.

    Judge Jackson’s decision is now on appeal to the Fourth Circuit and the trial of the accused pirates on other charges has been deferred pending the appeal. The decision by Judge Davis led to the first piracy conviction in almost 200 years.3 The convicted pirates, however, no doubt will appeal to the Fourth Circuit.

    A Place for Customary International Law in U.S. Courts?

    Judge Jackson and Judge Davis’ different rulings turn on their disagreement about the definition of piracy. But their conflicting interpretations also bring up a larger question about the role of customary international law in U.S. courts. While both judges acknowledged the evolving nature of customary international law, they reached different conclusions about how this changing body of law impacts the crime of piracy in U.S. courts.

    Judge Jackson held that the changing nature of customary international law demonstrates the unsettled definition of piracy in the international sphere. Judge Jackson focused his opinion on the Supreme Court’s definition of piracy under 18 U.S.C. § 1651 as announced in the 1820 Supreme Court case of United States v. Smith. According to his interpretation of the case, the Supreme Court explicitly defined piracy under the law of nations as robbery or “forcible depredation” on the sea. Judge Jackson also reiterated the government’s failure to provide any concrete ­examples as to when a U.S. court has accepted a more expansive definition of piracy than Smith.

    Judge Davis also relied on Smith, but reached a different conclusion about the definition of piracy. In contrast to Judge Jackson, Judge Davis construed the Smith case as leaving open the possibility of a more expansive definition of piracy. While Smith was “a classic case of piracy” involving robbery, Judge Davis explained there is no evidence the Smith court intended to announce an exhaustive definition of piracy. In his view, by incorporating the definition of piracy under the law of nations, the drafters of 18 U.S.C. § 1651 contemplated an evolving definition of the crime of piracy.

    Analyzing the language of § 1651, Judge Davis emphasized that the statute explicitly incorporates the definition of “piracy as defined by the law of nations.” The “law of nations,” or customary international law, is widely accepted as a changing body of law determined by international consensus. In considering sources of customary international law, Judge Davis looked to the definition of piracy set forth in the United Nations Convention on the Law of the Sea (“UNCLOS”). With 161 state signatories and international acceptance, Judge Davis reasoned that UNCLOS exemplifies customary international law. Under UNCLOS, “any illegal act of violence or detention” against another ship, committed for private ends on the high seas, constitutes piracy.

    Due Process Issues

    In addition to conflicting views about the role of customary international law in defining piracy in U.S. courts, Judge Jackson and Judge Davis also reached different conclusions about potential due process implications. Both judges addressed the issue of whether a law that changes over time is by nature unconstitutionally vague. According to Judge Jackson, if the court were to allow the definition of piracy to evolve over time, individuals “would be required to constantly guess” what conduct constitutes piracy under § 1651. This “guessing” would not provide a potential defendant with adequate notice of whether certain conduct violates the statute. Judge Jackson noted that this concern is heightened under the present circumstances, where liability under the statute carries a mandatory life sentence.

    On the other hand, Judge Davis found that the very fact that § 1651 incorporates the definition of piracy under the law of nations provides potential defendants with notice of what conduct constitutes piracy. Individuals have fair warning that piracy is defined by the internationally accepted norms and standards captured in UNCLOS.

    All concerned await the Fourth Circuit’s ruling with great interest.

    1. United States v. Said, 2010 U.S. Dist. LEXIS 106050, No. 10-cr-00057 (E.D.Va. Aug. 17, 2010).

    2. United States v. Hasan, 2010 U.S. Dist. LEXIS 115746, No. 10-cr-0056 (E.D.Va. Oct. 29, 2010). This decision has led to the first U.S. piracy trial in almost 150 years. The last piracy case tried in a U.S. court was United States v. Baker, 24 F. Cas. 962 (C.C.S.D.N.Y. 1861).
    3. The last piracy conviction in a U.S. court was United States v. Smith, 18 U.S. 153 (1820).