Kiobel Oral Argument: Piracy May Spell Trouble for Shell

October 3, 2012 by Leave a comment

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.

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Negotiator Sentenced to Multiple Life Terms – SCOTUS on the horizon

August 15, 2012 by Leave a comment

Defendant Mohamed Salid Shibin appears in court

As we previously discussed here and here, Mohammad Saaili Shibin has been convicted for his role as a pirate negotiator in two separate incidents. During the trial, there was evidence that the hostages were tortured, but Shibin’s main role was to negotiate a ransom payment. Shibin has now been sentenced to 12 life terms and his attorney has promised to appeal. Two issues could lead to overturning Shibin’s convictions and might soon reach the Supreme Court.

First, Shibin’s attorney has stated that piracy can only occur if someone commits robbery at sea. In other words, the issue is whether piracy under the 18 USC 1651 (which incorporates the law of nations) is an evolving or a static concept. If it is a static concept, then a robbery was necessary to complete the offence. Since Shibin never boarded the hijacked yacht, he did not commit a robbery and his conviction for piracy, the basis for the life terms, could not stand. If, however, piracy is an evolving concept, then the UNCLOS definition would prevail and, because it does not require a robbery, Shibin’s conviction would stand.

Shibin’s appeal will first be heard by a 3-judge panel of the 4th Circuit. Another panel of the same court has ruled, in U.S. v. Abdi Wali Dire, that piracy is an evolving concept. A petition for rehearing was subsequently denied in that case, and the defence is filing an appeal with the US Supreme Court. Shibin could appeal the same issue to the 4th Circuit and might win if a different panel hears the case. However, if his appeal is denied, which is likely, he will have to take the case to the US Supreme Court as well.

The second issue that might result in overturning his convictions is whether Shibin’s actions in Somali territory can constitute piracy under the law of nations. The Federal Court in the DC Circuit recently held, in U.S. v. Ali, that the international crime of piracy can only be committed on the high seas. Therefore, negotiating a ransom for pirated hostages on land or within a state’s territorial waters does not constitute piracy. There is a healthy debate as to the correctness of this decision. See here and here. Nonetheless, it appears that Shibin only boarded the pirated vessel in Somali territorial waters. The U.S. Attorney prosecuting Shibin said that Shibin was a hostage negotiator operating from within Somalia, and it is reported that Shibin only boarded the pirated ship after it entered Somali waters.Therefore, if the Ali-rationale were applied in Shibin’s appeal, his convictions would be overturned. Even though Shibin did not appear to make this particular argument at trial, if it is determined that piracy under the law of nations does not include actions from Somali territory, universal jurisdiction would not permit the U.S. to pursue this prosecution. Therefore, this is a jurisdictional issue that can be raised for the first time on appeal.

Members of Ogoni Community interested by Kiobel v. Royal Dutch Shell Source: Amnesty International

There you have it: two issues that could invalidate Shibin’s convictions. Either or both of these issues could reach the Supreme Court, perhaps not in Shibin’s case, but possibly in U.S. v. Dire. The justices may be inclined to grant certiorari as a rhetorical counterpoint to Kiobel v. Royal Dutch Shell which is on the court’s docket for the next term and will require the court to interpret the statutory language “the law of nations” as part of the Alien Tort Statute. The piracy cases might be helpful to those who would argue that universal jurisdiction only applies to those offenses originally contemplated and discussed by the First Congress (when the piracy law and the Alien Tort Statute were passed). According to this view, piracy would satisfy the requirement, but relatively newer crimes such as crimes against humanity would not.

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