The Possible Unintended Consequences of United States v. Ali

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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.

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Roger L. Phillips says

July 11, 2013

Thanks for raising some interesting points. I have addressed many of these in my article posted on SSRN last October and the court in Ali appears to have agreed with much of my analysis. I just have a few comments.

The mens rea of piracy is the intent to committ any illegal act of violence or detention. The private ends requirement may more properly be considered a part of the actus reas to exclude acts that are state-sponsored (Douglas has previously made a similar point).

In addition, as of early this year, a conviction for aiding and abetting at the ICTY requires that an Accused specifically directs the assistance to the underlying criminal purpose (Perišić,Stanisic). This addresses your concern about the application of aiding and abetting piracy to the ransom-drop pilot or ship-owner's negotiator.

Finally, in my view, the Circuit Court properly avoided issues that were not squarely presented, such as the interpretation of Article 101(1)(b)("pirate enterprise liability"). This latter crime shares some attributes with the controversial offense of criminal membership that was used to prosecute members of the Nazi party at the Nuremberg Military Tribunals. I am unaware of any prosecutions under Article 101(1)(b). I would suggest that the proper time to examine this provision is if and when it arises in a trial proceeding.

I have appreciated your recent posts on EJILTalk! and Communis Hostis Omnium. Keep them coming!

Douglas Guilfoyle says

July 15, 2013


As ever, thank you for a thoughtful post. I broadly agree with Roger but would just touch on two points. You note:

"Nevertheless, it raises some sovereignty concerns for those states from which these territorial pirates would be taken for prosecution in the U.S."

I could be mis-reading you but, obviously, suspects can only be removed from territory with the relevant State's consent (or a Security Council resolution). Nothing in the law of piracy would permit territorial intervention to remove a suspect. It occurs in Somalia on the basis of the consent of the territorial State plus the relevant UNSCR authorizations.

If you mean that the extension of adjudicative jurisdiction represents an intrusion into the territorial sovereignty of the State where the Art 101(b) conduct took place, well, I'll only raise the quibble that many "ordinary" crimes with a transnational element can already be subject to multiple claims of criminal jurisdiction. States normally don't get too worked up about foreign jurisdictions prosecuting the acts of drug traffickers commenced on "their" territory, etc.

As for the scope of 101(b), you raise an interesting point as to whether it would cover the voluntary conduct of a mechanic fitting out a boat knowing it was to be used for piracy. I would ordinarily construe "operation" as having a narrower range of meaning in the law of the sea (crewing, navigation, etc), but the words "any act" could perhaps support a broad approach.

Jon Bellish says

July 15, 2013

Thanks, Roger and Douglas, for the comments. I can always count on you both to raise thoughtful issues and keep this debate going forward in a productive manner.

I do agree that "private ends" may refer to the issue of government sponsorship rather than subjective intent. But the issue is worth considering as some (see, e.g. the folks at Opinio Juris) believe the "private ends" requirement to be a subjective one. As a doctrinal matter, I would love to see the private ends requirement be interpreted narrowly, but that might be bad news for the Sea Shepherds and others like them.

As for the recent ICTY jurisprudence, I read through the cases, and I am not persuaded that (prosecutorial discretion notwithstanding) they would keep certain "good" facilitators out of the DC Circuit's reach. First, the ICTY said that if the alleged facilitator is geographically proximate to the crime, "substantial contribution" may be enough to establish a&a liability. Also, the factual circumstances in the ICTY cases place the alleged perpetrator much further from the crime than the hypothetical case I presented. For me, the real question is how far a duress defense would go in such a case. It may well be sufficient, but it hasn't worked well for the "bad" people who have claimed duress as a defense against committing other core international crimes.

Roger's final point about "pirate enterprise liability" saliently demonstrates the difference in our interpretations of UNCLOS art. 101. I think of (a) as direct commission, (b) as something like conspiracy, with "voluntary participation" in operating a ship fulfilling the traditional "act in furtherance," and (c) as the controversial "guilt by association" provision, capturing even those pirates neither physically committing a piracy nor physically helping operate the pirate ship.

Douglas -- regarding your first point, I would only note that the DC Circuit's ruling has consequences reaching far beyond Somalia and that there is nothing preventing a successful prosecution even in the event of a non-consensual extraction. Again, we can only rely on political considerations, prosecutorial discretion and resource allocation to limit the scope. Though I think that you're right in stating that asserting adjudicative jurisdiction is not a big problem in and of itself.

Once again, many thanks to you both for raising these issues and keeping me honest!