New Article on Aiding and Abetting Piracy

piracy renaissance table of contents

My article on intentional facilitation and incitement to piracy has at long last been published in the Florida Journal for International Law. It argues that general principles of law as discerned from the jurisprudence of international criminal tribunals may serve as the basis for the application of appropriate modes of responsibility for piracy. Ultimately, as applied to two piracy cases in the U.S. it concludes that aiding and abetting piracy may be perpetrated on Somali territory or territorial waters and still be subject to jurisdiction within the U.S. In view of the time-lapse between initial submission and publication (as is often the case in law review publishing), the editors graciously allowed me to append a postscript, updating the progress of two appeals in separate circuit courts which agreed in large part with my conclusions.

Reprinted with permission from the Florida Journal of International Law. 

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.

Kiobel Postscript

Further to my earlier analysis here, there was one other remarkable detail in the U.S. Supreme Court’s recent decision in Kiobel. Although, the opinion in Kiobel was devoted to the application of the Alien Tort Statute, it injected some confusion into a strictly piracy matter. Citing to Blackstone’s definition of piracy the court majority noted, “the offence of piracy by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to a felony there.” This is an outdated definition of piracy inconsistent with the law of nations. The 4th Circuit Court of Appeals has held in two recent opinions that piracy does not require an intent to rob (animus furandi) because the piracy statute 18 USC 1651 incorporates modern developments in “the law of nations” including the customary definition of piracy in Article 101 on the UN Convention on the Law of the Sea. Only a few months ago, the Supreme Court declined to hear these two cases, thereby taking no view on whether the definition of piracy has been updated by modern developments. By now citing to Blackstone’s definition in the Kiobel opinion, however, the court has muddied the waters.

Piracy – Not just Kiobel’s Analogy

Justice Kennedy – the deciding vote in Kiobel

Cross-posted at opiniojuris.org

The majority opinion in Kiobel precludes Alien Tort Statute claims for foreign conduct against foreign victims, leaving a small door for potential future claims that involve extraterritorial conduct so long as they touch and concern US territorial interests. But, when does a claim “touch and concern” the territory of the United States? Roger Alford notes that piracy may present an incident of “cross-border” conduct that could clarify this issue. Indeed, two piracy cases will imminently arrive at SCOTUS’ courthouse steps.

The piracy statute 18 USC 1651 shares much in common with the Alien Tort Statute: both were passed in the same time frame and both have reference to “the law of nations.” The presumption against extraterritoriality applies to 18 USC 1651. However, the plain language of the piracy statute and its historical context clearly rebut the presumption for all conduct that occurs on the high seas. Further, neither the victim nor the defendant need be American (U.S. v. Klintock). That said, there remains an important subset of piracy cases that involve conduct both on the high seas and within the territory of another sovereign: acts of aiding and abetting piracy through financing or negotiating ransoms for acts of piracy; or recruiting of child pirates.

In US v. Shibin (4th Circuit) and US v. Ali (DC Circuit), currently on appeal, the underlying criminal conduct of hijacking vessels occurred on the high seas. But, the negotiators in these cases only boarded the vessels upon entry into Somali territorial waters. Hence the mixed loci delecti on the high seas and within the territory of another state. Does this type of mixed conduct touch and concern the territory of the United States?

First, the plain language of the piracy statute would not rebut the presumption against extraterritoriality for conduct occurring within the territory of another state (the statute merely applies to conduct on the “high seas”). However, the historical context of the piracy statute indicates that it was intended to prevent impunity for acts of piracy wherever committed. That is why the modern definition of piracy applies to conduct outside the jurisdiction of any state, as well as to the high seas.

Here is where a case-by-case analysis, suggested in Part IV of the Kiobel majority, could be determinative. In Shibin, the defendant is accused of negotiating the ransom of two vessels. The first vessel has a strong nexus to US interests; the victims were American nationals and the targeted vessel was flagged in the US. Although a vessel’s flag does not designate its surface as territory of the sovereign, it is treated in much the same fashion (Lauritzen v. Larsen) which is to say that there are strong domestic interests in exercising jurisdiction over acts of piracy on one’s flagged vessels. But the second course of conduct charged in Shibin involves a vessel with no links to the US apart from a general interest in suppressing acts of piracy. The same is true in Ali. As the district court described the case: “Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship’s Danish owners to pay a ransom for its release.” These latter facts would not prevent the exercise of jurisdiction if the alleged criminal conduct occurred on the high seas. The question is whether aiding and abetting conduct occurring within the territory of another state must touch and concern US interests. If answered in the affirmative, it would curtail the US’s ability to suppress and prosecute acts of piracy, which is contrary to the historical purpose and intent of 18 USC 1651. It would also be inefficient as those who initiate an act of piracy on the high seas and continue acts of piracy in foreign territorial waters could only be prosecuted for the former conduct.

One significant factor Kiobel instructs to consider is the imperative to avoid enmeshing US courts in foreign affairs. In this regard, the specific facts of the Somali cases militate in favour of exercising jurisdiction. For the then Transitional Federal Government (TFG) of Somalia did not have effective control over the territorial waters where these acts of piracy occurred. The UN Security Council authorized States and regional organizations “to undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea,” including in its territorial sea. The UNSC took great pains to note the TFG retained full sovereignty, that these exceptional measures did not create customary international law, and that they were authorized because the TFG had requested this assistance. It has been argued that the UNSC Resolutions authorized enforcement and stopped short of authorizing the prosecution of acts of piracy or armed robbery in Somalia’s territorial waters. Notwithstanding these provisos, the interest in preventing “unintended clashes between our laws and those of other nations which could result in international discord” (Morrison) that lies at the heart of the presumption against extraterritoriality, is greatly diminished in these piracy cases.

Justice Kennedy notes in his concurrence in Kiobel that in disputes not involving solely extraterritorial conduct, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Although the majority appears to exceptionalize piracy (“pirates may well be a category unto themselves”), such a reading is inconsistent with Sosa v. Alvarez-Machain which explicitly asked “who are today’s pirates?” The terms “pirate” or “piracy” appear in the various opinions in Kiobel 50 times. Perhaps it is time to address piracy directly, and not merely by analogy. Such could elucidate the “touch and concern” requirement applicable in ATS cases.

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.

Kiobel Oral Argument: Piracy May Spell Trouble for Shell

The Supreme Court opened up its October term with a healthy dose of international law in Kiobel v. Royal Dutch Shell. The petitioner, Esther Kiobel, is bringing suit against Royal Dutch Shell (Shell) alleging that the oil company aided and abetted the Nigerian government in committing gross human rights violations in the oil rich Ogoni region of Nigeria.

This is the second time this year that the Court has heard Paul Hoffman’s arguments in favor of the plaintiffs and Kathleen Sullivan’s arguments on behalf of Shell, and maritime piracy played a role in both rounds of arguments.

The first round of Kiobel oral arguments considered whether the Alien Tort Statute (ATS) could be applied to corporations as well as natural persons. There, Justice Breyer evoked the concept of “Pirates, Incorporated” to inquire into whether an in rem action against an 18th century pirate could be foreclosed because “Pirates, Inc.” rather than the individual pirate, owned the property at issue.

The United States Supreme Court

In the second round of oral arguments, held yesterday morning, the issue had changed from whether the ATS can be applied to corporations to whether it can be applied extraterritorially. Despite this change of focus, maritime piracy played an even more important substantive role in the second iteration of the Kiobel arguments than the first.

Piracy first came up when Justice Scalia asked Royal Dutch Shell’s attorney, Kathleen Sullivan, whether she believed – as Scalia thought she “must” – that the ATS applied to high seas conduct. She did not. Ms. Sullivan then quickly tried to turn her argument to the Marbois incident concerning an assault on a French diplomat.

But Chief Justice Roberts immediately raised the question of piracy again, noting that “it was the most clear violation of an international norm” at the time of the ATS’s passage.

Ms. Sullivan again attempted to minimize her high seas argument, noting that even if the justices concluded that the ATS reached high seas conduct, it does not extend into the territory of another state. However, she doubled down when she argued that Sosa v. Alvarez-Machain – the last ATS case heard by the Supreme Court – does not foreclose the possibility that the ATS’s reach stops at the high seas, as that opinion stated that piracy might be an area covered by the statute.

Despite her repeated attempts to stray away the issue of piracy, the oldest international crime came up again and again, including in the context of Filartiga v. Peña-Irala, where the Second Circuit held that, “[f]or the purposes of civil liability, the torturer has become – like the pirate and slave trader before him – an enemy of all mankind.”

As Shell’s attorney, Ms. Sullivan wished to steer clear of the issue of maritime piracy for several reasons. The first is that the Supreme Court explicitly found that the First Congress meant to include piracy as one of three torts available to 18th century ATS plaintiffs. The Supreme Court would likely be reluctant to admit that it was wrong less than a decade after Sosa was handed down.

Second, foreclosing ATS claims that occur on the high seas is the furthest possible extension of the respondents’ argument, one that the majority need not adopt to reach the respondents’ desired verdict.

Finally – and this may have been what Justice Scalia was getting at when he initially posed the question – it is difficult to find an example of an American law that applies on the high seas but not on foreign soil.[1] The presumption against extraterritoriality is purely a creature of Congressional intent, and it seems that Congress rarely distinguishes between the high seas and foreign soil when considering a statute’s extraterritoriality.

If the conservatives on the Supreme Court find the argument that ATS application on the high seas and on another country’s soil rises and falls together persuasive, there is enough historical evidence that the ATS was meant to apply to piracy that more newly-minted universal violations could ride on piracy’s coattails and allow for extraterritorial application of the ATS.

The effect such an opinion would have on pending litigation over a high seas requirement for facilitators of piracy is better saved for another day.


[1] Depending on the ultimate outcome of pending litigation, a notable exception to this general rule could be, however ironically, 18 USC § 1651, the statute criminalizing piracy.