February 15, 2014 Leave a comment
United States’ prosecutors have decided to drop charges against Ali Mohamed Ali, who had been charged with piracy, as well as with hostage-taking, for his alleged role as translator/negotiator after the seizure of a Danish vessel in 2008. The prosecutorial decision not to pursue the Ali case may come as an unpleasant surprise to come, or as confirmation to others that this controversial case should never have been initiated to begin with.
Much has been written in the academic blogosphere about this case (see here and here and here). To sum up, Ali was a former Somaliland education minister, who had spent much of his adult life in the United States. After a Danish ship, the M/V CEC Future, was captured by Somali pirates in late 2008, Ali boarded the ship and translated the pirates’ demands to the ship owners. The crux of the Ali case (at least factually) centers around his role in this piracy incident: was Ali merely a translator, contributing toward the hostages’ eventual release by enabling negotiation with the kidnappers, or was he a pirate himself, helping his fellow criminals to enrich themselves further through another successful ransom request? It is undisputed that Ali boarded the kidnapped vessel after the violent piracy incident took place, and it is undisputed that Ali boarded the vessel while the vessel was docked in Somali territorial waters. Thus, Ali’s alleged act of facilitating piracy would have been committed in the Somali territorial waters, and not on the high seas. Despite such unusual “piracy” conduct by Ali, the United States government decided to build a case against him and to essentially ruse him onto American soil. Toward this end, Ali was invited to an education conference in North Carolina, and promptly arrested on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011. Jon Bellish, in a prior post, has summarized the procedural posture of the Ali case in American courts as follows:
After a number of superseding indictments, a grand jury charged Ali with conspiracy to commit piracy, aiding and abetting piracy, conspiracy to commit hostage taking, and aiding and abetting hostage taking. Ali filed a motion to dismiss and was successful on a number of counts, with the lower court dismissing the conspiracy to commit piracy count, narrowing the aiding and abetting count to acts of facilitation that occurred on the high seas, and dismissing both hostage taking charges as a violation of due process.On appeal, the DC Circuit affirmed the dismissal of the conspiracy to commit piracy charge, but reversed the dismissal of the hostage taking charges and held that the United States may assert universal jurisdiction over acts of facilitation that take place entirely within the territory of another state.
Following the DC Circuit court opinion, Ali was tried in the district court on charges that survived the appellate challenge, including hostage taking, we well as piracy facilitation, despite the fact, as mentioned above, that the act of facilitation did not take place on the high seas. Perhaps because of such unusual factual circumstances surrounding Ali’s alleged piracy conduct, his strange arrival to the United States, as well as because of the difficult legal argument necessary in order to convict Ali, the jury found him not guilty of the charge of piracy, but deadlocked on the less serious charge of hostage-taking. Prosecutors initially sought a retrial on the hostage-taking charges, but just announced a few weeks ago that they would not proceed with the retrial, because of constitutional concerns that Ali was being subjected to double-jeopardy (because the re-filed charges relied on the same basic facts).
All of this leads me to my initial point – that perhaps Ali should never have been prosecuted in the United States to begin with. The case was legally challenging from the outset. Ali was a universal jurisdiction case – a prosecution of an alleged piracy facilitator who had no ties to the United States, and who could only be reached through universal jurisdiction, which has historically been available for the crime of piracy. But in order to prove that Ali had committed piracy (so that he could be prosecuted under universal jurisdiction), American prosecutors had to show that Ali’s facilitative act under Article 101(c) of UNCLOS need not have occurred on the high seas, as long as the underlying act of piracy (committed against the Danish vessel) had itself occurred on the high seas. In other words, Ali could be convicted of facilitating piracy on dry land or in Somali territorial waters under the concept of universal jurisdiction. Accepting this argument is difficult to say the least, and commentators had suggested that a high seas requirement for piracy facilitation should always be required. Factually, the case was difficult as well. While it was undisputed that Ali had helped negotiated the ransom demand, it was unclear as to what Ali’s role in the piracy endeavor (if any) had been. Under the Ali precedent, would insurance company mediators, negotiating between pirates and the shipping company, also be subject to universal jurisdiction for facilitating piracy? What about pilots who fly planes which drop the ransom money? And what about the ruse orchestrated by United States’ prosecutors to entice Ali into coming to America? The district court judge herself had been outraged by the prosecutorial conduct, and while this would not be ground for dismissal under American law, most of us agree that this kind of governmental and prosecutorial conduct portrays the United States in a negative diplomatic and political light. My argument, for the purposes of this post, is not to claim that the Ali appellate court was correct or incorrect, or to try to shed light on what Ali had actually done in this particular piracy incident; instead, let me point out that legally and factually difficult cases, like Ali, should not be the subject of expensive prosecutions thousands of miles away from Somali shores. Many of us will agree that combatting piracy is a global challenge which involves, among other strategies, creating multiple prosecutorial venues where suspected pirates are routinely charged and convicted (if found guilty). But the international community actors involved in fighting piracy have limited resources, limited time, and limited attention to this global problem. Instead of pursuing piracy negotiators like Ali, whose guilt may be doubtful and whose prosecution could only succeed through a stretch of the universal jurisdiction concept, why don’t we focus on those who actually engage in piracy attacks, or, more importantly, on those who plan and finance piracy attacks? Finally, now that Ali’s prosecution has come to a halt, we have to ask ourselves what will happen to this defendant – now that he is on American soil, will he apply for political asylum in the United States or attempt to stay here on other grounds (something that our prosecutors clearly did not have in mind when they lured Ali to America?) The risk of unsuccessfully prosecuting Ali was never worth the potential benefit.