The WSJ Law Blog has a interesting post about charges filed against the Somali teenager, Abduwali Abdukhadir Muse, in the US District Court for the Southern District of New York. The 10 page criminal complaint charges Muse with conspiracy to seize a ship by force as well as the rarely invoked charge of piracy under 18 U.S.C. § 1651. The piracy statute states:
“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.”
On its face, a charge of piracy may seem fairly straightforward. But, as the Law Blog post suggests, the definition of piracy is not so simple. The statue states that the crime of piracy shall be defined by “the law of nations” not by Congress. This raises the issue of which law of nations federal prosecutors should look to for guidance especially since the last international treaty discussing piracy that the U.S. ratified was the 1958 Law of the Sea treaty. The more recent United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 3 (UNCLOS) concluded on Dec. 10, 1982 was never ratified by the US.
The complexities of charging the crime of piracy is the subject of an article Protections Afforded to Captured Pirates under the Law of War and International Law, 33 Tulane Maritime Law Journal 1 (2008) by Michael Passman, BLS Class of 2008. Passman was a member of the Executive Board of the Brooklyn Journal of Corporate, Financial and Commercial Law and the Symposium Editor when he attended BLS.
This detailed article states that, while pirates may be captured on the high seas or outside the territory of any state under international law, they are to be tried and punished under the criminal law of the state holding them in local courts, not under international law in an international tribunal. The article argues that pirates are unique in that they are arguably a hybrid between criminal and combatant, neither true civilians nor true belligerents. For that reason, it is not clear whether they are protected by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused, such as the US Bill of Rights. Passman’s article focuses on whether international humanitarian law, specifically the Third and Fourth Geneva Convention and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apply to pirates.
The BLS Library catalog, SARA, links to an internet site Information Resources on Piracy and Armed Robbery at Sea (Call #VK203 .I63 2009) for more resources on the subject.