Piracy Conviction Sets Stage for 4th Circuit Appeal

Reuters reports that Mohammad Saaili Shibin has been convicted on 15 counts in a U.S. Federal District Court, including charges of piracy, hostage taking, kidnapping and conspiracy. He faces a mandatory life sentence in a U.S. prison on the piracy charge based on the underlying conduct of negotiating ransoms for hostages kidnapped at sea. Due to this harsh sentence, Shibin is likely to appeal the conviction on the piracy charge. As Jon Bellish has previously noted on this blog, this sets the stage for the 4th Circuit Court of Appeals to consider whether “piracy as defined by the law of nations” in 18 U.S.C. § 1651 (adopted in 1816) constitutes a static or evolving concept. In other words, since the “law of nations” is not defined in the statute, is it defined as a matter of international law circa 1816 or does the definition evolve with changes in treaty and customary international law?

In my view, the 4th Circuit should interpret Section 1651 to encompass the defintion of piracy as it appears in the 1982 UN Convention on the Law of the Sea (UNCLOS). If we take the traditional ICJ formulation of the “law of nations,” the definition could derive either from international treaties or customary international law (or general principles). Although not a state party to UNCLOS, the U.S. has accepted the definition of piracy in UNCLOS as customary international law for the last four presidencies (see 2010 Digest of US Practice in International Law). There is no nullum crimen problem, as this definition has been accepted long before the offenses were committed (in 2009 or 2010). Nonetheless, the 4th circuit may be reticent to find an evolving concept within the statute. If the argument is that an evolving concept is antithetical to legal certainty in criminal law, one could argue that piracy is sui generis and limit the evolving concept to this particular crime. Other crimes in Title 18 are unlikely to be defined by “the law of nations”. In any event, the definition arguably has not changed since 1932 as the Harvard study’s definition from that year made its way into UNCLOS. In Shibin’s case, the jury instruction for the piracy charge will be of particular interest as it will have an impact upon how the appellate issues are framed.

If the 4th Circuit adopts the UNCLOS definition of piracy, the second question will be whether negotiating a ransom from land can constitute “inciting or intentionally facilitating” piracy under Section 101(c) of the Convention. The plain language would tend to support an affirmative response. But how far does “intentionally facilitating” extend? For example, does it extend to the cook or driver at the pirate’s land base? The travaux preparatoires of the 1982 UNCLOS Convention (and its precursor 1958 LOS Convention) provide little assistance in delineating the boundaries of these modes of participation. Likewise, these modes are not included in the ICTR, ICTY or ICC statutes, thereby rendering their jurisprudence of little assistance in an interpretive study. (Note: the ICTR Statute does include the mode of direct and public incitement, but this is particular to the crime of genocide and the “direct” and “public” aspects of this mode are integral to the definition). How the 4th Circuit decides this issue could have a significant impact on how future prosecutions proceed.  That being the case, and considering the U.S. judiciary’s recent difficulties in properly examining issues of international law and ICL in particular, the 4th circuit could well benefit from an amicus curiae brief based on expertise in these areas.

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2 Responses to Piracy Conviction Sets Stage for 4th Circuit Appeal

  1. Jon Bellish says:

    I totally agree, both as a matter of policy and of textual interpretation, that the Fourth Circuit should rule that 1651 incorporates an evolving definition of piracy under the law of nations. As I said in my post, the strongest role the courts can play in solving this problem is through the prosecution of the financiers who never set foot on a ship. It seems like strained logic to conclude that when Congress said “piracy as defined by the law of nations” they meant “robbery on the high seas” not “piracy as defined by the law of nations.”

    However, the legislative history of 1651 is problematic. Its predecessor was passed in response to a Supreme Court case (Palmer) limiting our piracy statute only to US citizens and ships and contained a one year sunset provision that the Supreme Court define piracy under the law of nations, which it did in Smith in 1820, when it said that piracy had a settled definition and that definition was “robbery at sea.” Then, apparently, 1651’s predecessor was accidentally incorporated into the US Code in 1874 and re-codified as 1651 in 1948 with the caveat that, although the law of piracy required updating, the re-codification did not provide such updating.

    Thus whether the Fourth Circuit does what you and I want it to is very much up for grabs.

  2. Pingback: International Law: Update • The Judge Ben C. Green Law Library • Case Western Reserve University School of Law

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