Terrorism as a Defence to Piracy (a definitional problem)

Last August, in U.S. v. Said, a federal court dismissed the most serious count of piracy, ruling mere attempts at piracy were not proscribed by the provision in question. The defendants in that case had approached the USS Ashland 300 miles off the coast of Djibouti, mistaking it for a commercial ship, and one of the defendants had fired a shot. They made no attempt to board the ship and their skiff was shot out of the water. Judge Jackson held that even if the facts were proved, this “attempt” did not amount to piracy. There has been considerable discussion of the memorandum decision here, here and here.  Most of the criticism centers on the Court’s limited reading of 18 U.S.C. 1651 which provides, “[w]hosoever, on the high seas, commits the crime of piracy as defined by the law of nations and is afterwards brought into or found in the United States, shall be imprisoned for life.”

Judge Jackson relied upon the U.S. Supreme Court decision of United States v. Smith, 18 U.S. 153 (1820) which defined piracy as robbery at sea. Many critics have noted the 1958 Convention on the High Seas (ratified by the U.S.) and the UNCLOS (not ratified by the U.S.), define Piracy to be inclusive of “attempt,” and that these Conventions constitute customary international law.  Because 18 U.S.C.1651 adopts the Law of Nation’s definition of piracy, the Court should have given more weight to the definition within these Conventions.

The definitional problem examined in U.S. v. Said is indicative of the challenges faced by States attempting to prosecute Somali pirates. Piracy laws are often antiquated or sometimes do not exist at all.  Even where a State has clear penal legislation proscribing acts of piracy and has adopted the UNCLOS definition, there are other potential hurdles.

The Old U.S. Supreme Court Chambers ca. 1820

UNCLOS article 101 defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends…” (emphasis added).  The plain language of this definition provides that the motive for piracy must be pecuniary.  What if a private ship attacks another in order to achieve a political, as opposed to, a commercial purpose?  Professor Isanga points out several examples of this phenomenon, including attacks in the Niger Delta in Nigeria, and the PLF attack of the M/S Achille Lauro.  Although Somali pirates are generally attacking ships for profit, they have on occasion expressed political motivations.  For example, Somali pirates threatened to kill any South Korean seamen they take hostage in revenge for the killing of eight pirates by South Korean troops.  Furthermore, the Somali parliament failed to adopt piracy legislation with some parliamentarians arguing the pirates were protecting their national waters from overfishing by foreign vessels.  The current definition of piracy under UNCLOS would not encompass crimes with these motivational bases. (See Professor Isanga’s article for a discussion of this and other definitional issues.)

Establishing the jurisdictional parameters of a special tribunal for piracy creates a unique problem in this regard.  If a special tribunal’s jurisdiction is limited to the crime of piracy as defined by UNCLOS, it would not be competent to try attacks at sea committed for political purposes.  In answering charges of piracy, a suspect might claim to have attacked a ship for political, as opposed to pecuniary purposes.  If believed, the manifestly unjust result would be an acquittal on a piracy charge based on a defence of terrorism.  As the special tribunal would not have jurisdiction to try the terrorism charge, the suspect would go free.  Of course, the suspect could be transferred to a court with competence to hear terrorism charges.  However, the efficiency of the special tribunal would be undermined.  Further, in a terrorism trial, the suspect might change tack and claim that he was in fact pursuing commercial interests in the attack.

To avoid this result, the international community could (1) expand the definition of piracy to include terrorism or (2) expand the jurisdiction of piracy tribunals to encompass terrorism charges.  Either alternative would confuse two quite distinct issues.  I recently spoke with an individual who provides private security to commercial ships against Somali pirates.  He claims that piracy is a business (albeit an illegal one).  Few hostages have been killed because it is unprofitable to do so.  He told me that if a pirate ship sees a commercial ship is guarded by armed security, it generally withdraws to look for an easier target.  In contrast, terrorism seeks to use violent means to achieve a political result.  Hostage situations involving terrorists are highly unpredictable and hostages are often killed.  Piracy seeks the most profitable outcome; Terrorism often seeks the most violent outcome.  Do the two crimes deserve similar treatment?  As individual States and the international community pursue piracy prosecutions in earnest, these definitional problems will have to be addressed.

NB: It is possible that a pirate would have dual motives, both pecuniary and political. In such cases, a “terrorism defence” would not negate the criminal intent for piracy.  Cf. Prosecutor v. Ntakirutimana, ICTR-96-10-A, Judgement (AC)(holding in the context of the crime of genocide, “it is immaterial, as a matter of law, whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons.”)