Communis Hostis Omnium

Intentional Facilitation and Commission of Piracy as part of a Joint Criminal Enterprise

Defendant Ali Mohamed Ali, Source: Foxnews

In the U.S. government’s efforts to ramp up piracy prosecutions to include pirate kingpins, several cases of mid-level negotiators are working their way through the courts. We discussed one such case here. Another such prosecution recently met some setbacks when a U.S. District Court ruled in U.S. v. Ali that conspiracy to commit piracy was not a cognizable crime and further limited the application of intentional facilitation of piracy to acts committed on the high seas. See also, here. The latter issue was apparently moot at the outset since the prosecution alleged that the negotiator was on the high seas when he intentionally facilitated the acts of piracy. However, in a contentious hearing last week, it became apparent that the Accused only spent about 25 minutes on the high seas and that his criminal conduct may not have occurred in that time frame. Therefore the high seas issue is now central to the outcome of the case. The Prosecution has signalled its intent to file an interlocutory appeal and the Judge has ordered that the Accused be released on bail, noting misrepresentations by the prosecution on this issue. In my view, the conspiracy ruling was correct, but intentional facilitation was improperly limited to conduct on the high seas. This latter error would impede future prosecutions of pirate leaders in U.S. courts.

It should be made clear that U.S. courts that have addressed the issue in the last several years have uniformly concluded that although the U.S. is not a party to the U.N. Convention on the Law of the Sea, this treaty contains the definition of piracy under customary international law which is incorporated by the U.S. piracy statute (18 USC 1651). Therefore, piracy is defined in the U.S. purely by reference to international law, and not domestic U.S. law. See here for further background.

In its 13 July Decision in U.S. v. Ali, the Court held that the piracy statute requires that intentional facilitation occur on the high seas. See Memorandum Opinion at 17. I disagree with this interpretation of UNCLOS for several reasons. First, a plain language reading of UNCLOS does not impose a requirement that inciting or intentionally facilitating an act of piracy occur on the high seas. Article 101(a)(i) of UNCLOS defines piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends […] on the high seas […]” Intentional facilitation of such an act of piracy appears in subsection (c) of Article 101 which does not include the requirement that the act occur on the high seas. In other words, the illegal act of violence or detention must occur on the high seas, but the facilitation need not occur there.

The U.S. piracy statute could create some confusion as it specifically refers to piracy committed on the high seas which might be interpreted to extend the high seas requirement to intentional facilitation. (See 18 USC 1651 which provides in full, “Whoever, 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.”) However, the reference to piracy on the high seas in 18 USC 1651 is redundant. By definition under customary international law, acts of piracy (though not incitement or facilitation) must occur on the high seas. The reference to acts on the high seas in 18 USC 1651 was only meant to emphasize that conduct committed in the territorial waters of another state would not constitute piracy (such conduct is instead robbery at sea, solely within the purview of the littoral state). It is not at all clear that Congress would intend to modify the otherwise settled view of the law of nations. Therefore, to impose the high seas requirement on subsection (c) of UNCLOS (pertaining to intentional facilitation), which does not appear in the plain language of the treaty, would be contrary to the U.S. Supreme Court’s Charming Betsy canon (whereby a statute should be construed not to violate international law).

Furthermore, restricting intentional facilitation of piracy to crimes perpetrated wholly on the high seas is not necessary to protect the sovereignty of states where pirate kingpins may reside. The piracy statute only provides personal jurisdiction over those who are “afterwards brought into or found in the United States.” If a pirate kingpin has negotiated a ransom from the territory of another state, the U.S. must request extradition through the usual means prescribed by international law. For all of these reasons, the high seas requirement should not be added to the crime of intentional facilitation of piracy.

As to the District Court’s second holding, the decision to dismiss the conspiracy to commit piracy charge appears well-founded. However, it is worth considering whether other forms of responsibility, firmly established in customary international law, might support the criminalization of the conduct in question. For example, commission has been interpreted by the ad hoc tribunals (ICTR, ICTY, SCSL, STL) to encompass the form of responsibility referred to as joint criminal enterprise (JCE) where there exists (1) a plurality of persons; (2) a common plan, design or purpose which amounts to or involves the commission of a crime and (4) the accused’s participation in the common plan. Of course, the tribunals did not have competence to consider charges of piracy. However, similar forms of accessory liability are found in numerous domestic legal systems and piracy prosecutions in Seychelles have been successful on a theory of accomplice liability akin to JCE. See here and here. This mode of responsibility has not been considered by any U.S. court in a piracy case.

Jama Idle Ibrahim, sentenced last year to 25 years for his role in the same attack, will be a government witness against Ali.

Apart from the jurisdictional issues, the ultimate question in this prosecution is whether negotiators acting as middlemen between pirate hostage-takers and those seeking their release “intentionally facilitate” piracy pursuant to UNCLOS. The answer will depend on the factual circumstances and how the mens rea of facilitation is construed. The drafters of UNCLOS limited facilitation by requiring that the accused intentionally (not merely negligently or recklessly) facilitated the piratical act. This suggests not only that the Accused must intend to support the illegal act of violence or detention, but also that the facilitator must share the pirate’s intent to commit the act “for private ends” (i.e. for personal enrichment or other non-political purposes). Involvement in negotiations to release the hostages for humanitarian reasons would not satisfy this mens rea requirement. Elsewhere, Professor Kontorovich suggests that intentional facilitation cannot occur after an act of piracy, but must have occurred prior to it. But if the piratical act was committed with the pre-formed intent to hold hostages for ransom, then the completed piratical act would not have been possible but for the intervention and assistance of a negotiator to complete the transaction. If a negotiator also possesses the intent to personally enrich himself, the conduct would appear to fall within Article 101(c) of UNCLOS.

One final word about the fairness of this prosecution. Depending on the circumstances of a case, the negotiation of a ransom (or the financing of piracy for that matter) may appear to be less reprehensible than the acts of violence committed against seafarers on the high seas. Such is the dichotomy between low-level perpetrators and their white-collar sponsors. If a mandatory life sentence, as is imposed by the U.S. piracy statute, is inappropriate in some cases involving accomplice liability, this is a matter of charging strategy best left to the prosecutor. There are a number of other non-piracy statutes in the prosecutor’s repertoire that could be put to use. But it is an overbroad statement to assert that all white-collar facilitators of piracy deserve leniency.