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The Possible Unintended Consequences of United States v. Ali

Published on July 10, 2013        Author: 

Jean_Lafitte,_early_19th_century,_Rosenberg_Library,_Galveston,_TexasAs Professor Guilfoyle notes in his latest post, the D.C. Circuit Court of Appeals, in the case of United States v. Ali, reached the same conclusion that he did on the question of whether territorial facilitation of piracy is subject to universal jurisdiction.  I have a post over a Communis Hostis Omnium summarizing the court’s analysis as it relates to international law, but here I want to focus on two of the potential unintended consequences of that analysis. (photo: anonymous portrait of famous Louisiana pirate Jean Lafitte, credit)

Both of these unintended consequences flow from the court’s interpretation of UNCLOS article 101. The court found that the presence of the phrase, “on the high seas” in article 101(a)(i) and its absence in article 101(c) showed that there was no high seas requirement for facilitators. The court based its interpretation on the general proposition that variations in statutory language should be read as intentional. After a two sentence analysis simply noting the discrepancy between (a) and (c), the court abruptly concluded, “[s]o far, so good; Charming Betsy poses no problems.” However, this same analysis, if applied to article 101 as a whole, produces two interesting results: it suggests that there is no high seas requirement in article 101(b), and that there is no private ends requirement in article 101(c). For some, these unintended consequences may be perceived as “problems” indeed.

First, for the same reason that the court explicitly negates the high seas requirement as it relates to article 101(c), it implicitly negates that same requirement in article 101(b). This latter provision, like article 101(c), lacks the phrase, “on the high seas.” Thus anyone operating a ship anywhere with knowledge that it has been used for piracy is open to a universal jurisdiction prosecution in the United States. The only treatment that article 101(b) received was in a footnote stating, “[a]s neither party draws support for its position from article 101(b), we need not opine on its meaning here.” This suggests that the court may not have fully considered the consequences of its analysis. From a policy perspective, this is not the gravest of results, as most will not have much sympathy for mechanics and repairmen that knowingly work for pirates. Nevertheless, it raises some sovereignty concerns for those states from which these territorial pirates would be taken for prosecution in the U.S.

Second, and more troubling, it seems clear from the court’s analysis that the mens rea for piratical facilitation is decidedly not the desire to achieve private ends. This is because, like the phrase “on the high seas,” “private ends” appears in article 101(a), but not 101(c). Which mental state should take its place? It is widely accepted that “facilitation” corresponds most closely to aiding and abetting liability. In the United States, aiding and abetting requires only that the defendant purposefully “aids, abets, counsels, commands, induces or procures” the commission of a crime. In the absence of direct evidence of specific intent, some federal appeals courts require a “purposive attitude towards” the commission of the crime, while others have held that mere knowledge is enough to sustain an aiding and abetting conviction.  At the ICTY, aiding and abetting requires something quite similar: a general intent to assist and the knowledge that the assistance will aid in the commission of a crime. Even the ICC, which has a relatively stringent mens rea requirement for aiding and abetting, only requires that the aider and abettor assist “for the purpose of facilitating the commission of [] a crime” (i.e. making the crime easier to commit). None of these standards requires the aider and abettor to share the direct perpetrator’s underlying intent. Without the private ends requirement, individuals such as the ship owner’s ransom negotiator, the pilot who airdrops the ransom, or even an American official issuing a letter of marque (a right the U.S. has maintained) may have opened themselves to a universal jurisdiction prosecution for piracy, with a mandatory life sentence.

In sum, the court’s opinion – either intentionally or unintentionally – gives the United States extremely broad latitude to prosecute acts of piracy that do not take place on the high seas. One no longer has to “renounce[] all benefits of society and government” to be subject to the common jurisdiction. All that is required is that the person helps – or operates a ship with – someone who has.

 

More Great Piracy Facts in U.S. Courts: Private Ends Edition

Published on February 28, 2013        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

 On Monday, the Ninth Circuit issued an opinion reversing the lower court and enjoining the Sea Shepherds of Whale Wars fame from coming within 500m of Japanese whaling vessels. In Cetacean v. Sea Shepherds, Judge Kozinski found, in the context of a request for a preliminary injunction in a civil action under the Alien Tort Statute, that the Sea Shepherds were likely committing piracy under UNCLOS. Judge Kozinski also found that the Sea Shepherds were violating the SUA Convention and the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS).

 Just as United States v. Ali presents excellent facts to test the limits of a high seas requirement for facilitators, Cetacean v. Sea Shepherds presents excellent facts to test the limits of the private ends requirement.

Some commentary has been written about the opinion already, and positions range from Kevin Jon Heller’s on Opinion Juris that Judge Kozinski “should spend less time writing clever introductions to his opinions and more time analyzing actual historical sources” to Eugene Kontorovich’s on the Volokh Conspiracy that Judge Kozinski’s reasoning “is obviously correct.”

In reality, the question is closer than either Kevin or Eugene suggest. There are two competing conceptions of what constitutes “private ends,” and both have significant support in the drafting history. Whether the actions of the Sea Shepherds constitute piracy jure gentium depends on which of these interpretations carries the day.

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Filed under: EJIL Analysis, Piracy
 

After a Brief Hiatus, Kenya Once Again Has Universal Jurisdiction Over Pirates

Published on October 24, 2012        Author: 

 Jon Bellish is a Project Officer at the Oceans Beyond Piracy project just outside Denver, Colorado, though the views expressed are solely those of the author. You can follow him on Twitter.

On October 18, the Kenyan Court of Appeal in Nairobi handed down a pivotal decision in In re Mohamud Mohammed Hashi, et al. It held that Kenya has jurisdiction to try piracy suspects whose alleged acts occurred beyond the country’s territorial waters. Due to Kenya’s central role in the emerging global network of piracy prosecutions, the Court’s ruling in Hashi will have positive implications both within and outside of Kenya.

The Court of Appeal decision overturns a ruling from the High Court of Mombasa, which concluded that, “[Kenyan] Courts can only deal with offences or criminal incidents that take place within the territorial jurisdiction of Kenya.” For an excellent analysis of the lower court’s decision, I would point readers to this post on Communis Hostis Omnium.

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Breaking News from 1932: Pirate Facilitators Must Be Physically Present on the High Seas

Published on September 19, 2012        Author: 

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

In the two years since the United States Justice Department began prosecuting Somalis for their alleged roles as pirate hostage negotiators, a debate has emerged as to whether UNCLOS requires facilitators of piracy to be physically present on the high seas in order to have committed piracy jure gentium and thus be subject to universal jurisdiction.

Highly reputable scholars and jurists have come out on different sides of this debate, due in large part to a lack of context surrounding UNCLOS art. 101, which provides the definition of piracy. Professor Douglas Guilfoyle takes the more expansive view that facilitation can take place within the jurisdiction of a state because UNCLOS art. 101(c), the section concerning facilitation, does not contain an explicit high seas limitation, as does art. 101(a)(1), which deals with the direct commission of piracy.

Advancing a narrower view, which I myself shared until recently, Professor Eugene Kontorovich argues that either an ex ante agreement to facilitate piracy ex post or concurrent facilitation while on the high seas is enough to commit piracy under the law of nations.

To an extent, this academic debate played out in practice when Judge Ellen Huevelle of the United States District Court for the District of Columbia held that a lack of high seas conduct kept an alleged pirate hostage negotiator outside the reach of universal jurisdiction. Although she was not presented with the question of whether an ex ante argument to facilitate subjected a facilitator to common jurisdiction, Judge Huevelle appears to side with the narrower conception of universal jurisdiction over pirate facilitators.

Because of the absence of historical insight into the bounds of universal jurisdiction over facilitators of piracy, most commentary to date has tended towards policy-heavy speculation based primarily on the text of UNCLOS itself. It appears, however, that the Harvard’s 1932 Draft Convention on Piracy has provided some much needed context for the debate.

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