As 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.