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Sunday, September 12, 2010

Somali Pirates: US aims at reversing dismissal of piracy indictment

The U.S. attorneys in Norfolk's Somali pirate trial are aiming at the judge's dismissal of the "piracy" count of the charges brought against the defendants, as reported by the Washington Examiner US appealing dismissal of piracy indictment :
The U.S. government is appealing a federal judge's decision to dismiss piracy charges against five Somali defendants accused in an April attack on a U.S. Navy ship off the coast of Africa.

Prosecutors signaled their intent to appeal to the 4th U.S. Circuit Court of Appeals in a filing Friday in federal court in Norfolk, where the five are scheduled for trial. They also are seeking to delay the start of the trial, scheduled for Oct. 19, while they seek to have the piracy ruling overturned by the Richmond appeals court.

U.S. District Judge Raymond A. Jackson on Aug. 17 dismissed the most serious charge against the Somali nationals, concluding the government failed to make the case that the men's alleged actions met the legal definition of piracy.
I suspect a basis for the appeal will be the trial court's failure to accept that certain international treaties should be used in considering what the definition of "piracy" is. While the United States is not a party to the United Nations Convention on the Law of the Sea, it is a signatory to the predecessor to that Convention - the 1958 Convention on the Law of the Sea. Article 15 of the 1958 Convention reads:
Article 15
Piracy consists of any of the following acts:
(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.
Shooting at ships, even if boarding is not accomplished, would seem to fall under paragraph 1 of Article 15. This argument was raised at the pretrial hearing and dismissed by the judge.

We'll see if the Court of Appeals in Richmond has a differing view.

As noted in my first post on this dismissal (here), lots of legal wise men feel the judge was in error:
. . . Prof. Eugene Kontorovich quoted here:
...The Law of the Sea treaty clearly includes attempts as part of piracy. Here the judge errs in claiming the U.S. did not ratify the treaty: it ratified the 1958 version of the treaty that had the same piracy language. And Washington accepts the current UNCLOS as stating customary international law. Moreover, the Executive has in recent times treated attempt as part of piracy. In 2006 the US Navy captured some Somalis in the Gulf of Aden and turned them over for trial in Kenya on piracy charges (the first such handover). The incident involved an attempted piracy.

The opinion’s due process argument is also pretty weak. If one is on notice that piracy is illegal under international law, isn’t one also on notice that trying to commit it will also get you in trouble, especially when as in this case the attempt failed not through lack of trying, but solely because of resistance by the would-be-victim?

Perhaps we'll see a ruling that "piracy, like pornography, is hard to define, but you know when you see it." (see Justice Stewart's concurring opinion in JACOBELLIS v. OHIO, 378 U.S. 184 (1964)).

1 comment:

  1. Anonymous2:59 PM

    Exactly as I suspected.

    Our response to piracy / terrorism is so weak, so limp that it's a win-win for the pirates.
    (with only one possible exception)

    They win when they get paid-off for taking a ship and risking un-armed sailors lives.
    They win when they get taken alive because of the foolishness of our political leadership and the weaknesses of our courts. (notice the smiles on the faces of the pirates when they walk onto US soil….how happy they are to be in the US and have tax-payer funded attorneys and support groups, they KNOW that they’re gonna’ walk free)

    The only time WE win against piracy is when we gun them down on sight. (the only true way to remove incentive for follow-on pirates)