The DC Circuit’s Ali Decision

DC Circuit Court of Appeals

DC Circuit Court of Appeals

On June 11, the U.S. Court of Appeals for the District of Columbia decided the case of United States of America v. Ali Mohamed Ali, a case about which I have written extensively. This post will provide a brief factual and procedural background of the case, briefly discuss the DC Circuit’s treatment of three of the four charges against Ali, and explain how and why the court rejected my argument about a high seas requirement for facilitators of piracy.

Background

Ali Mohamed Ali, the Minister of Education for the semi-autonomous Somali region of Somaliland, negotiated the release of eleven hostages aboard the Bahamian-flagged, Danish-owned merchant vessel CEC Future. Regrettably, in the era of piracy off the Horn of Africa, this is not an uncommon occurrence. What is interesting about Ali’s case, however, is that he negotiated the ransom from Somali territorial waters, never facilitating while on the high seas. Nonetheless, the United States government built a case against him, planned a fairly elaborate ruse to invite Ali to an education conference in North Carolina, and arrested him on the tarmac when his plane touched down in Washington, D.C. on April 20, 2011.

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.

Conspiracy to Commit Piracy and Hostage Taking Charges

Of the four charges considered by the court, three were relatively uncontroversial. In affirming the lower court’s dismissal of the conspiracy to commit piracy charge, the court relied on the Charming Betsy canon, concluding that because “UNCLOS [art. 101]’s plain language does not include conspiracy to commit piracy,” the government cannot charge conspiracy to commit piracy “as defined by the law of nations.”

As for the hostage taking charges, Ali’s principle argument was that asserting universal jurisdiction over hostage taking – a non-UJ offense – the government violated Ali’s right to due process under the Fifth Amendment of the U.S. constitution. However, the court concluded that the Hostage Taking Convention provided global notice that an alleged hostage taker could be haled into court. That, combined with the fact that 18 USC § 1203, the American hostage taking statute, asserts jurisdiction over all offenders “found in the United States,” was enough to sustain Ali’s hostage taking charges. This section contains some interesting discussion of the relationship between United States and international law, but it remains to the side of what I believe the most interesting aspect of the Ali case: whether universal jurisdiction exists over facilitators of piracy who never leave the territorial jurisdiction of a state.

Aiding and Abetting Piracy

In considering whether “piracy as defined by the law of nations” allows for universal jurisdiction prosecutions over territorial facilitators, the court considered the text of UNCLOS art. 101, the context provided by surrounding provisions, as well as the relevant drafting history. Though it did not consider the underlying policy implications of criminalizing piracy, the structure of the court’s argument closely mirrored that from my law review article. However, the similarities between our analyses went no further.

The court begins with a textual analysis of art. 101, which takes only three sentences and is re-printed in full here:

Explicit geographical limits – ‘on the high seas’ and ‘outside the jurisdiction of any state’ – govern piratical acts under article 101(a)(i) and (ii). Such language is absent, however, in article 101(c), strongly suggesting a facilitative act need not occur on the high seas so long as its predicate act has. So far, so good; Charming Betsy poses no problems.[1]

Although the court could have ended its analysis there, it turned to Ali’s contextual arguments concerning arts. 86 and 105, introducing the relevant Part in UNCLOS and describing states’ power to capture pirates, respectively. Regarding art. 86, the court concluded that it was not meant to limit the provisions of the Part to high seas acts, but rather to explicate the meaning of “high seas” for the purposes of the Part. As for art. 105, the court explained that “the provision’s reference to the high seas highlights the broad authority of nations to apprehend pirates even in international waters.” The court further asserted that Ali’s argument that art. 105 limits universal jurisdiction captures to the high seas “proves too much, leaving nations incapable of prosecuting even those undisputed pirates they discover within their own borders.”

Finally, the court considered UNCLOS’s drafting history, or, as it phrased the inquiry, the “drafting history’s drafting history.”  The court traced UNCLOS back to the 1932 Harvard Draft Convention’s explicit pronouncement that acts of facilitation must take place on the high seas to be subject to universal jurisdiction. The court found this evidence unpersuasive, stating that, “[e]ffectively, Ali would have us ignore UNCLOS’s plain meaning in favor of eighty-year-old scholarship that may have influenced a treaty that includes language similar to UNCLOS art. 101. This is a bridge too far.”  Indeed, the court stated that it would not completely address the drafting history, as the plain meaning of UNCLOS art. 101(c) was clear.

The court concluded that UNCLOS art. 101, and by extension 18 USC § 1651, and by further extension 18 USC § 2, all allow for universal jurisdiction prosecutions for acts of piratical facilitation which take place entirely with another state’s borders.

In the end, the D.C. Circuit’s analysis and my own departed ways at the very beginning, perhaps even before.  In conceptualizing piratical facilitation as a form of liability distinct from piracy rather than piracy in and of itself, the court was able to resolve the textual argument in one short paragraph. From there, the court sought independent justifications for the limitation in the context and drafting history, where I looked to the context, drafting history, and underlying policy rationale to resolve the ambiguous language.


[1] Omitting the internal citation to the general proposition that inclusion of language in one section of a statute and exclusion in another should be taken as purposeful.

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DC Circuit publishes Ali appeal

This morning, the DC Circuit published an opinion concerning the scope of permissible charges against Ali Mohammed Ali. In the opinion, the DC Circuit affirmed Judge Ellen Huevelle’s decision to dismiss one count for conspiracy to commit piracy, but reversed the dismissal of the hostage-taking charges and a limitation of aiding and abetting piracy to acts committed on the high seas.

I agree with the DC Circuit’s decisions regarding the conspiracy and hostage taking charges, but it will come to no surprise to readers of this blog that I disagree with the aiding and abetting reversal, which was based on the conclusion that aiding and abetting piracy under 18 USC § 2 (and by extension 18 USC § 1651 and UNCLOS 101(c)) can occur from within the territorial jurisdiction of another state. I argue differently in my forthcoming law review article in the San Diego International Law Journal, and I am mostly unpersuaded by the Court’s opinion. I plan on writing more about this subject after I have a chance to read the opinion more carefully.

Interestingly, the Associated Press left out the reversal limiting the scope aiding and abetting charge, reporting only that “the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed the dismissal of the of hostage-taking charges, while upholding the decision to dismiss the conspiracy to commit piracy charge.” Perhaps adding, “reversed the lower court ruling limiting piracy to acts committed on the high seas” would have seemed too controversial.

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.

Report From the Piracy Contact Group, Working Group 2, Meeting in Copenhagen

Private Security Guards

Cross-posted at international law girls.

In my capacity as an independent academic, as well as a representative of the prominent non-governmental organization, the Public International Law and Policy Group, I had the honor of attending the 12th meeting of the United Nations Contact Group on Piracy off the Coast of Somalia, Working Group 2, meeting in Copenhagen, on April 10-11.  I will take this opportunity to briefly summarize some of the key legal issues that were discussed in Copenhagen.

First, many nations seem to be moving in favor of authorizing the use of private security guards on board their merchant vessels.  The use of such private security guards is controversial, and many in the international community feel a general sense of discomfort any times states delegate their traditional duties to private entities.  Others have expressed the view that the use of private security guards on board merchant vessels should be allowed only under strictly delineated guidelines and rules on the use of force.  Contrary to popular belief, such guidelines and rules exist already.  Several International Maritime Organization Circulars provide guidance on matters related to the employment of private security personnel on board merchant vessels.  The Baltic and International Maritime Council (BIMCO) has drafted and made publicly available a standard employment contract between a shipping company and private security providers.  BIMCO has also issued specific Guidance on the Rule of the Use of Force, which suggest under which circumstances private security personnel may use force, including lethal force, against suspected pirates.  The International Organization for Standardization (ISO) issued additional Guidance for private security personnel on board ships, as well as a pro forma contract.  Finally, the Montreux Document provides international law rules applicable to the conduct of private security providers during armed conflict.  Although this Document most likely does not apply to the Somali piracy context because of the absence of armed conflict, it nonetheless sheds light on the international community’s consensus regarding the international law responsibilities of private security providers, operating in a domain otherwise reserved to state powers.

In addition to the above-mentioned guidance, international treaty law provides rules regarding the master of a ship’s duties on the high seas, in a situation where a merchant vessel may be under attack by suspected pirates, regardless of the presence of private security contractors on board.  It is clear under the United Nations Convention on the Law of the Sea as well as under the SUA Convention that the master of a ship retains authority on board his or her vessel, that the master may order any private security personnel to cease using force against suspected pirates at any time, and that the delegation of power from the master to the private security personnel during a piracy incident is temporary.   The general sentiment in Copenhagen was that numerous existing guidelines, principles, and treaty law obligations apply to any use of private security personnel on board merchant vessels, and that states have plenty to work with when determining whether and how to authorize the use of private security on board their own vessels.

Second, states remain concerned with legal issues related to the treatment of juvenile pirates (I had previously reported on this issue from the last Working Group 2 meeting in September 2012).   In order to ensure that juvenile pirates are treated according to relevant human rights standards and practices, states have begun developing guidelines on the treatment of juvenile pirates.  Such guidelines include the necessity to segregate juvenile suspects from the general prison population, to provide educational and vocational opportunities for juveniles, and to generally rehabilitate them so that they re-enter society upon their release and engage in legal, as opposed to criminal, activities.  These proposed guidelines will remain the subject of future Working Group 2 meetings.

Third, states remain committed to the post-conviction transfer model: the idea that pirates, if they are successfully prosecuted and convicted in Kenya, the Seychelles, or Mauritius, will be transferred back to Somaliland or Puntland where they will serve their penal sentences.  This model is important for two reasons.  First, it relieves small capacity nations such as the Seychelles and Mauritius from having to detain convicted pirates for long period of time in their own prisons; prosecutorial nations can, under this model, accept more suspected pirates because they will not run out of detention space.  Second and more importantly, the post-conviction transfer model allows pirates to return home – although they will not be immediately freed upon re-entering their native land, they will presumably be reunited with their families through prison visits and return to their own communities after the end of their sentences.  Any post-conviction transfer requires the successful fulfillment of the following criteria: the applicant must be at least 18; he or she must waive any existing appeals (the sentence must be final); he or she must consent to the transfer; all relevant states, including the apprehending state, the transferring state, and the receiving state, must agree to the transfer.  As discussed in Copenhagen, the post-conviction transfer model has been used successfully thus far, and 59 pirates have been transferred to Somaliland and Puntland as of today.

Finally, states have expressed an important concern regarding hostages.  In many instances, pirate hostages spend months in captivity under very difficult conditions.  Once hostages are released, they may be confused, mentally or physically injured, and may have no meaningful way of returning to their home states.  Several states in Copenhagen expressed the view that it is important to create a hostage release program that would maintain contact with released hostages in order to enable them to successfully return to a normal life after captivity.

The work of Working Group 2 thus far has been outstanding.  It demonstrates that states can, through joint legal efforts and cooperation, contribute significantly to the global fight against Somali piracy.

Broadcast of Mekong Pirate’s Execution May Have Violated Chinese Law

You likely have heard about the execution of Naw Kham, the Mekong Pirate found guilty of killing 13 Chinese in the Golden Triangle. See our prior coverage here. The moments leading up to the execution were televised live in China, although the execution itself was not. Siweiluozi’s Blog points out this violates the spirit if not the letter of Chinese law meant to curb such public executions.

This prohibition was subsequently written into China’s Criminal Procedure Law, and the relevant Supreme People’s Court interpretation on implementation of the death penalty also prohibits “other acts that degrade the personality of criminals” (其他有辱罪犯人格的行为).

Siweiluozi’s Blog also points to a commentary in the Changjiang Daily, the official “organ” of the party in Wuhan, providing the following critique:

Perhaps it is not illegal in China to broadcast live as the condemned are transferred to the execution ground, but I still oppose broadcasting live. Before, China used to have so-called public sentencing rallies and parade bound criminals in the streets for public viewing. Now, live broadcast of the transfer is no different in any real sense and is even more repulsive. Why?
It is because the live broadcast voluntarily and consciously revived these kinds of backward, barbaric scenes lacking in any modern notion of rights or rule of law. The live broadcast even delivered these scenes right in front of your eyes, so that you didn’t even need to go out of doors or be in the streets: you could see the barbarity and backwardness from your own home. You could say, in other words, that this live broadcast was itself barbaric and backwards, displaying no progress at all.

One Step Closer to a Pirate Amnesty

The Special Court for Sierra Leone held that the amnesty granted to rebel leader Morris Kallon (left) did not deprive the court of jurisdiction to prosecute the Accused.

It is being reported that Somalia’s federal government is offering an amnesty to junior pirates in an attempt to end the hijackings of merchant vessels. The Somali President notes that the amnesty is intended for low-level pirates and not pirate kingpins. “We are not giving them amnesty, the amnesty is for the boys,” he said. Depending on how the amnesty is framed, however, it could run afoul of an international obligation to prosecute universal jurisdiction crimes. As we noted last August when President Sheikh Sharif Sheikh Ahmed first discussed the possibility of a pirate amnesty, the duty to prosecute arises not only from the treaty obligations taken on by states but also the egregiousness of the proscribed conduct. Based on this international norm, there may be a duty to prosecute pirates who have engaged in the practice of torturing hostages or for any other act constituting piracy if sufficiently egregious.

Moreover, a national amnesty granted by Somalia might not be respected by other states who have prosecuted hundreds of Somali pirates over the last several years. The Special Court for Sierra Leone declared an amnesty was “ineffective in removing the universal jurisdiction to prosecute persons accused of such crimes that other states have by reason of the nature of the crimes. It is also ineffective in depriving an international court such as the Special Court of jurisdiction.” We previously noted the similar situation in Nigeria, where pirates had accepted an offer of amnesty, but subsequently returned to arms due to the Nigerian government’s failure to provide alternative means of livelihood as it had promised. For Somalia, the lesson is that an amnesty must be accompanied by job training and job creation to be effective. Such a program is potentially very expensive. However, certain international organizations and NGOs may be willing to assist in this regard.

Chinese Drones and Mekong Piracy

Naw Kham (first from right) and members of his gang hear the verdict of the first trial at the Kunming Intermediate People’s Court in Yunnan Province on November 6, 2012. Photo: CFP

There have been some interesting revelations in the case of Naw Kham, the so-called Mekong Pirate who presided over a transnational criminal network in the Golden Triangle of the Mekong river basin. (prior coverage here). Although Naw Kham was convicted of murder, drug trafficking, kidnapping and hijacking across international borders, this does not constitute piracy under UNCLOS as it did not occur on the high seas. Nonetheless, the case provides a fascinating case study in transnational organized crime and has important analogies to piracy on the high seas. Chinese media have focused on the operation to capture Naw Kham, whereas Western media have focused on the fact that China considered using an unmanned drone to kill him.

First the Chinese government-published Global Times provides details on how Naw Kham avoided capture by the Chinese in the Golden Triangle for so long.

During the search, Naw Kham vanished at least three times just as the Chinese police were closing in. [Taskforce leader] Liu said that this was largely because the Chinese police were limited in what they could do overseas. They had to launch appeals before undertaking operations and cooperate with local police.

But Naw Kham had lived in the Golden Triangle for many years and sometimes locals would aid him.

At the end of 2011, Chinese police located Naw Kham at a village by the Mekong River in Boqiao Province in Laos, the hometown of one of Naw Kham’s mistresses.

Chinese and local police encircled the village, but some local officials and villagers obstructed them. “We hit a stalemate. Police were not allowed to enter the village. Even though the local police head was with us, provincial officials were on the other side,” Liu said.

“The deadlock lasted hours, and it was getting dark. According to local customs, the search would have to be suspended after sunset.”

Liu finally found a senior military officer to help break the deadlock; however, police were only able to search six houses in the village and arrest the mistress and some gang members, seizing guns and cash. At night, Naw Kham crossed into Myanmar with the help of locals.

This highlights the fact that transnational criminality, and piracy in particular, will thrive where three conditions coexist: (1) lack of naval/police enforcement; (2) existence of water-borne commerce of significant value; and (3) poverty – motivating foot-soldiers to take extraordinary risks. In this case, the geography and multiple borders provided cross-jurisdictional cover for Naw Kham. Without strong international cooperation, he would not have been captured.

China’s unmanned Yi Long drone on display at the airshow in Zhuhai

In contrast, the New York Times have seized on the mention in the Global Times article that China had considered using an unarmed drone to kill Naw Kham.

Dennis M. Gormley, an expert on unmanned aircraft at the University of Pittsburgh, said of the reported Chinese deliberations, “Separating fact from fiction here is difficult.” But he added, “Given the gruesome nature of the 2011 killings  [for which Naw Kham was convicted] and the Chinese public’s outcry for action, it’s not at all surprising to imagine China employing an armed drone over Myanmar’s territory.”

Mr. Gormley said the decision not to carry out a drone strike might reflect a lack of confidence in untested Chinese craft, control systems or drone pilots. “I think China’s still not ready for prime time using armed drones, but they surely will be with a few more years of determined practice,” he said. “And they surely will have America’s armed drone practice as a convenient cover for legitimating their own practice.”

Similarly, the United States had considered using unmanned drones against Somali pirates in the Indian Ocean, but that program suffered setbacks and U.S. drones were likely only used to surveil pirate-operations off the coast of Somalia. Ultimately, China decided not to use its new assets. Indeed, capturing Naw Kham with no reported casualties and without the need to launch a military strike in Thailand, Laos, or Myanmar was a much cleaner solution.

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