Pirate waiting for the CTA bus (photo by Lyonette Louis-Jacques)
U.S. v. Said (E.D. Va., Aug. 17, 2010) has sparked interest in the law of piracy. Alleged Somali pirates in a small skiff fired on the USS Ashland in the Gulf of Aden. The U.S. Navy ship returned fire, burning the skiff, and killing one of its passengers. The U.S. crew took into custody the remaining Somali nationals aboard the skiff. Prosecutors charged the Somalis with piracy under 18 U.S.C. ยง 1651. The judge dismissed the piracy charges, citing U.S. v. Smith, 18 U.S. (5 Wheat.) 153 (1820)[Google Scholar] [HeinOnline]. As the Somalis did not rob the USS Ashland or its crew, the government failed to establish that their acts constituted piracy on the high seas as defined under the law of nations as of 1819, when Congress enacted the statute outlawing piracy (ch. 77, 3 Stat. 511)[HeinOnline]. The court reasoned that persons affected by the law could not know of any new definition of piracy, and therefore due process disallowed reference to the current law of nations as the standard for defining piracy. Several charges other than piracy remained viable against the Somalis.
Selected blog posts and news stories that address the Said case and the issue of Who is a pirate?:
- Piracy Charges Dismissed by Federal Judge (Eugene Kontorovich, The Volokh Conspiracy)
- How to Define Piracy (Cont'd): U.S. Judge Dismisses Piracy Charges (Julian Ku, Opinio Juris)
- How to Define Piracy (Cont'd): A Critique of U.S. v. Said (David Glazier, Opinio Juris)
- How to Define Piracy under U.S. Law and the "Law of Nations" (Julian Ku, Opinio Juris)
- Prosecuting Pirates in National Courts: US v Said and Piracy under US Law (Douglas Guilfoyle, EJIL: Talk!)
- Who's a Pirate? In Court, a Duel Over Definitions (Keith Johnson, WSJ)
- Who's a Pirate? Turns Out, the Answer's Not So Simple (Ashby Jones, Law Blog - WSJ)
Several commentators cite Article 15 of the 1958 Geneva Convention on the High Seas as the source for the authoritative definition of "who is a pirate" under the law of nations. Article 15 states that "any illegal acts of violence, detention or any act of depredation" committed by a crew on ship directed at another ship on the high seas constitutes piracy. Thus, the Geneva Convention does not require robbery for acts to count as piracy.
For additional information on the law of piracy, check Yvonne M. Dutton's Bringing Pirates to Justice (CJIL, Summer 2010), Eugene Kontorovich's "A Guantanamo on the Sea": The Difficulty of Prosecuting Pirates and Terrorists, International Legal Responses to Piracy off the Coast of Somalia (ASIL Insights), Piracy and International Law and recent articles, Peter T. Leeson's Rationality, Pirates, and the Law, Alfred P. Rubin's The Law of Piracy (2d ed., 1998), and Ivan Shearer's Piracy article in the Max Planck Encyclopedia of Public International Law Online. See also the Law Library of Congress' collection of digitized books on pre-1923 piracy trials from various nations.
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