Piracy on dry land (now with added case law)

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Flag_of_Edward_England.svgIt’s nice when a court agrees with you, or comes to the same conclusion at least. In a previous post on US v Ali (here) a spirited debate broke out in the comments as to whether Article 110(c) of UNCLOS on intentionally facilitating piracy was restricted to the high seas or could apply on dry land. (credit for image, Flag of Edward England)

We now have an appeal decision holding the defendant in US v Ali can be charged with aiding and abetting piracy on the basis of acts committed within Somali territory without this being contrary to international law.

There is a potential wrinkle here, in that the logic appears to be that the US law on aiding and abetting piracy (i.e. as an accessory) can extend to acts ashore as international law allows States criminal jurisdiction over such acts as piracy (i.e., commission of the offence in Art. 110(c) means you have committed piracy as a principal). Thus Art. 110(c) creates a form of piracy per se that US law can only charge as aiding and abetting (a different form of) piracy.

I don’t think anything turns on this. If universal jurisdiction over piracy is permissive, it is up to States to work out how best (or whether) to criminalize the offences under their national law. The point is that national law not exceed the limits of that jurisdiction.

On other points, the reasoning in the decision sets aside most of the historical material commonly relied upon in these debates in favour of a plain words interpretation (an issue I’ve discussed over here).

I doubt this will be the last case on point, so it will be interesting to see what other courts and other jurisdictions make of this.

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Tamsin Paige says

July 6, 2013

First, is Art. 110(c) supposed to be 101(c)?

Also what did you make of the dismissal of the conspiracy to commit charge?

Arron Honniball says

July 7, 2013

@tasmin

Isn't the dismissal of conspiracy to commit just based on the fact the definition of piracy doesn't extend that far?

Article 103 on pirate ship extends to if the ship is intended to be used for piracy, and i guess by operation of 101(b) if you participated in the operation of that "intending" ship you could be charged just for conspiring.
But I don't think Ali was on the attack ship, didn't he stroll aboard at the docks? (being a minister he has other commitments).

Tamsin Paige says

July 8, 2013

My reading of the dismissal on the conspiracy charges was that the court didn't find a foundation in UNCLOS to provide them with jurisdiction for such a charge, which I would have though was covered in 101(c).

I'm just curious to see what others thought about this characterisation by the court as conversations I've had with people involved in enforcement prior to this indicated that they were confident they could get a conviction for on land participants/facilitators through conspiracy charges in most jurisdictions.

Roger L. Phillips says

July 14, 2013

FYI - the Accused has filed a petition for rehearing en banc which has a possibility of being granted. http://piracy-law.com/2013/07/14/ali-post-script-potential-rehearing-en-banc/

Roger L. Phillips says

July 14, 2013

And the 4th Circuit agrees. http://piracy-law.com/2013/07/14/the-4th-circuit-agrees-kingpins-on-land-are-pirates-too/

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5 comments

Tamsin Paige says

July 6, 2013

First, is Art. 110(c) supposed to be 101(c)?

Also what did you make of the dismissal of the conspiracy to commit charge?

Arron Honniball says

July 7, 2013

@tasmin

Isn't the dismissal of conspiracy to commit just based on the fact the definition of piracy doesn't extend that far?

Article 103 on pirate ship extends to if the ship is intended to be used for piracy, and i guess by operation of 101(b) if you participated in the operation of that "intending" ship you could be charged just for conspiring.
But I don't think Ali was on the attack ship, didn't he stroll aboard at the docks? (being a minister he has other commitments).

Tamsin Paige says

July 8, 2013

My reading of the dismissal on the conspiracy charges was that the court didn't find a foundation in UNCLOS to provide them with jurisdiction for such a charge, which I would have though was covered in 101(c).

I'm just curious to see what others thought about this characterisation by the court as conversations I've had with people involved in enforcement prior to this indicated that they were confident they could get a conviction for on land participants/facilitators through conspiracy charges in most jurisdictions.

Roger L. Phillips says

July 14, 2013

FYI - the Accused has filed a petition for rehearing en banc which has a possibility of being granted. http://piracy-law.com/2013/07/14/ali-post-script-potential-rehearing-en-banc/

Roger L. Phillips says

July 14, 2013

And the 4th Circuit agrees. http://piracy-law.com/2013/07/14/the-4th-circuit-agrees-kingpins-on-land-are-pirates-too/