Ali post-script – Potential Rehearing en banc

As readers will note from the last two posts, the Federal Court of Appeals in Washington DC ruled in US v. Ali, that piracy may include aiding and abetting committed from shore (i.e. not on the high seas). As per custom, a three-judge panel issued this ruling. Ali’s attorney has now filed a Petition for Rehearing en banc (by the entire court). Federal Courts of Appeal are reluctant to grant rehearing en banc because of the drain on judicial resources. This is especially true in the DC Circuit which has only granted rehearing in a single case in each of the last few terms. Nonetheless, the DC Circuit has indicated some interested in Ali’s petition for rehearing as last week it ordered the government to respond. Rehearing of the case could result in the same or different outcome. But it would also raise the profile of the case for possible hearing at the US Supreme Court.

SCOTUS Denies Hearing of Piracy Cases

Lady Justice in front of the U.S. Supreme Court

We have been following a number of piracy cases in the U.S. two of which had resulted in convictions and looked like they might be heading to the U.S. Supreme Court (SCOTUS). The issue in U.S. v. Said and U.S. v. Dire was whether piracy, as defined by the law of nations, incorporates modern developments in international law. See also here. By declining to hear the cases, SCOTUS takes no view on the debate. However, in several lower court decisions, judges have relied on the pronouncement in Sosa v. Alvarez-Machain that claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” This conclusion runs counter to a judicial philosophy of strictly construing the plain language of a statute based on the understanding of the congressional authors at the time the act came into law. Because piracy was a novel issue unaddressed by SCOTUS in several hundred years, and because the legal issue on appeal invited strong ideological views, I had thought the case for hearing Said and Dire was fairly strong. Nonetheless, one weakness in the argument was that there was no split of authority between the federal courts of appeal (one basis for SCOTUS granting discretionary review). Both cases originated in the 4th circuit and reached the same conclusion on this point of law.

The same is not necessarily true in a second set of cases in U.S. courts involving pirate negotiators. In the case of U.S. v. Shibin, in the 4th Circuit, the defendant was convicted for aiding and abetting piracy although he was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters. In U.S. v. Ali, the federal court in the DC Circuit reached the opposite result and dismissed the aiding and abetting charges against an alleged pirate negotiator because it held that piracy must be committed on the high seas. These cases raise the issue of whether piracy can be perpetrated on land or within a state’s territorial waters, despite UNCLOS defining piracy as an offense perpetrated on the high seas. U.S. v. Ali is the subject of a prosecution interlocutory appeal on this issue, and Shibin’s conviction is on appeal to the 4th Circuit. Therefore SCOTUS might have another opportunity to get involved in the piracy debate and to make a contribution to the status of customary international law on the subject – although it might take another year for these cases to be ripe for review. On the other hand, it appears both circuits might reach the same conclusion and find that aiding and abetting piracy can be perpetrated on land – a position I have argued in a forthcoming law review article in the Florida Journal of International Law.

 

Private Security Liability under the Alien Tort Statute

Hasan Abdullah Quanas, a Yemeni fisherman, stands at the prow of the fishing boat on which his nephew Mohammed Ali Quanas was killed by shots fired from the Nordic Fighter tanker in the Red Sea on Aug. 3, 2011. Photo: Alan Katz

There has been a long discussion concerning if and how to regulate private security contractors hired to protect merchant vessels against pirates. See e.g. here and here. Only last week, the Security Council emphasized in the Presidential Statement issued after its debate on piracy that it “encourage[d] flag States and port States to further consider the development of safety and security measures onboard vessels, including regulations for the deployment of PCASP [privately contracted armed security personnel] on board ships through a consultative process, including through International Maritime Organization and International Standards Organization.”

As noted by Christine, two incidents in particular have raised the specter that innocent fishermen have been killed by PMSCs (Private Military and Private Security Companies)(the term we have used on this site). One incident involved a vessel protection detachment (VPD) of Italian special forces who killed two Indian fishermen believing them to be pirates. See here and here. Another incident involved the death of a Yemeni fisherman allegedly at the hands of a Russian VPD. As to the latter incident, it was reported:

From 500 meters (1,640 feet) away, gunshots erupted from the tanker toward Quanas’s skiff and its unarmed fishermen. Two rounds pierced the water on the motorboat’s starboard side, and a third slammed into Quanas’s face, just under his right eye, according to survivors on the boat and a Yemeni Coast Guard investigation. As the bullet came through the back of his neck, Quanas moaned, held out a hand, collapsed and died.

“He was killed while he was holding some dough for dinner,” says Quanas’s uncle, Hasan Abdullah Quanas, who was in the prow and saw his nephew fall. Hasan abandoned fishing after the shooting for fear that he too could become collateral damage in the increasingly violent fight to tame piracy on the high seas.

These are some of the few incidents that have been reported, but there are very likely more incidents where PMSCs or VPDs have mistakenly fired upon, injured, or killed innocents on the high seas. Presently, a ship’s flag state regulates the conduct of PMSCs and VPDs aboard ships on the high seas. There is no universally binding code of conduct, although the IMB has published interim guidelines. Nonetheless, PMSCs are potentially liable for acts of piracy for the killing of fishermen based on universal jurisdiction in the United States.

As many readers know, the Alien Tort Statute in the United States authorizes civil suit in U.S. federal courts against individuals (and perhaps corporations) who have violated the law of nations. The Alien Tort Statute has generally been used to pursue perpetrators of mass human rights violations. Although the drafting history of the statute is scarce and has made it very difficult to ascertain the original intent of Congress in adopting the statute, many are of the view that the Alien Tort Statute was initially intended to cover, at least, acts of piracy. Professor Alfred Rubin, in his treaty on the law of piracy, notes that the original intent was to provide a basis for civil suit against pirates:

[In 1792, US Attorney General Randolph envisaged the Alien Tort Statute to be a] supplement to criminal process to permit the victim of a wrongful taking aboard to recover his property when the tort law of the place of taking and the tort law of the United States coincided and the taker or the property was in the territorial jurisdiction of American courts. It would have had obvious applicability to aliens seeking to recover their goods from “pirates” as well as from those taking their property aboard, but seems to have rested on Blackstone’s naturalist conception of the ‘law of nations’.

In other words, the original intent of the Alien Tort Statute was to permit civil suit against pirates in US federal court. The law of nations defines piracy as any illegal acts of violence committed for private ends by the crew or the passengers of a private ship and directed against another ship (UNCLOS Art. 101(1)(a)). An act of violence by a PMSC against fishermen on the high seas would satisfy this definition. Therefore, PMSC’s are themselves liable for acts of piracy if they mistakenly injure or kill fishermen. Further, the Alien Tort Statute provides jurisdiction in US Federal Court to seek compensation for such illegal acts.

Acts of violence by a VPD might not fall within this definition since VPDs are state-sponsored and therefore precluded by the “private ends” requirement of the piracy definition. However, PMSCs are not state-sponsored. Another question is whether the law of self-defence may authorize some acts of violence against ships believed to be carrying pirates. On this point, it has been suggested that the permissibility of self-defence against possible pirates is determined by reference to the subjective intent of the private security detail. One proposed self-defence guideline provides, “A person acts in lawful self-defence of himself or another when he has an honest belief that he or the other person is under attack or imminently to be attacked so that it is necessary to defend himself or the other person by using no more force than is reasonably necessary to repel the attack or threatened attack.” (emphasis added).

I am sceptical that this formulation of self-defence is comprehensive and inclusive of general principles of law as understood by the major legal systems of the world. See here. It is more likely an expression of black letter law from the British common law system. In any event, under most systems of law, self-defence must be proportionate to the danger posed. The question remains whether the objective fact that an approaching boat is composed of unarmed fishermen would preclude self-defence as a justification for such conduct.

Another possible obstacle is a jurisdictional one. Currently before the US Supreme Court is the question whether there must be some nexus with the United States, in addition to the requirements of universal jurisdiction, to permit suits based on the Alien Tort Statute. This might be satisfied if an act of violence by a PMSC were committed against an American ship, seafarer, or perhaps even cargo while on the high seas or if they were committed by an American PMSC. If the US Supreme Court were to require such a nexus, it could preclude other civil suits with no connection to US interests.

In any event, PMSCs should be cognizant of the fact that they could be subject to civil and was as criminal penalties for causing damage to or killing individuals who are not in fact pirates on the high seas.

United States Supreme Court Gets its Chance

Abdi Wali Dire, left, arrives at the the federal courthouse in Norfolk, Va. on Tuesday, Nov. 9, 2010

As I previously mentioned here, the US Supreme Court may soon take up the issue of piracy in US courts. This could have importance not only for the piracy prosecutions taking place in the US but for the development of customary international law applicable in other municipal (i.e. domestic) jurisdictions as the US piracy statute directly incorporates customary international law.

The petitions for writs of certiorari in U.S. v. Dire and U.S. v. Said  (available here and here) raise compelling arguments that interplay with Alien Tort Statute litigation. They ask whether piracy as defined by the law of nations incorporates modern developments in international law. The answer will hinge on the limits of a federal court’s authority to ascertain a narrow set of violations of international law construed as federal common law.

The place of federal common law in US courts has been a matter of debate amongst the Justices of the US Supreme Court in two recent cases addressing the Alien Tort Statute which, like the US piracy statute, is defined by reference to “the law of nations.” In Sosa v. Alvarez-Machain, the majority opinion (written by Justice Souter) held:

[T]his Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest.[…] [There remain] limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. […] It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

This led the US Supreme Court to determine that the Alien Tort Statute claims “must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.” These include treaties, custom, and the works of eminent jurists.

Justice Scalia was even more categorical in a partially concurring opinion that there exists only “a specifically federal common law (in the sense of judicially pronounced law) for a few and restricted ”areas in which a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law. […] [But] [C]ourts cannot possibly be thought to have been given, and should not be thought to possess, federal common-law-making powers with regard to the creation of private federal causes of action for violations of customary international law.”

“[T]he question to me is who are today’s pirates. And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is?” So asked Justice Breyer during the Kiobel v. Royal Dutch Shell oral argument on 1 October 2012

The Office of the Federal Public Defender takes up the federal common law debate in its petition, urging that although modern developments in international law might inform the existence of a civil cause of action, the same cannot inform the definition of a crime. It asserts,

Federal criminal law, unlike tort law, most decidedly is not an area in which judges are permitted to derive “substantive law in a common law way.” Sosa, 542 U.S. at 729. The elements of a federal criminal offense, in particular, must be defined by Congress alone. See, e.g., Liparota, 471 U.S. at 424. Elements of federal criminal offenses are not created by courts engaged in the uncertain enterprise of discerning the state of customary international law, unguided by an authority of last (or even first) resort.

Herein lies the crux of the issue. Must the law of nations as used as a definitional base in US statutes have a fixed meaning pertaining to crimes, when such is not required for civil causes of action? Given the central role piracy played in the recent oral argument in Kiobel v. Royal Dutch Shell, the Court may decide now is an opportune time to take up communis hostis omnium.