Piracy

• Pages: 43-45

43

international law update Volume 18, April–June 2012

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

PIRACY

Fourth Circuit resolves contradictory

district court decisions as to

definition of “piracy”; finds that

Congress’s proscription of “piracy as

defined by the law of nations” in 18

U.S.C. § 1651 necessarily incorporates

modern developments in international

law; upholds piracy convictions and

sentences for Somalian pirates who

failed in boarding the Navy vessel they

were mistakenly attacking

One night in April 2010, a couple of Somalian

pirates were on the prowl on the high seas o the

East Coast of Africa between Somalia and the

Seychelles. e pirates, however, made a poor

choice of target for their attack. ey charged the

Navy frigate USS Nicholas, believing it to be a

helpless merchant ship. e USS Nicholas returned

re and apprehended Abdi Wali Dire and several

others. Dire and his companions (Defendants) were

brought to trial and convicted in federal court in

Virginia. In a consolidated appeal, the Defendants

challenge, among other things, their conviction for

“piracy” under 18 U.S.C. Section 1651.

e U.S. Court of Appeals for the Fourth

Circuit rejects the Defendants’ arguments and

arms the convictions. e Defendants claim that

their star-crossed attack does not constitute “piracy”

because they failed to board the Navy vessel.

“In these consolidated appeals, the defendants

rst contend that their ill-fated attack on the USS

Nicholas did not constitute piracy under 18 U.S.C. §

1651, which provides in full: ‘Whoever, on the high

seas, commits the crime of piracy as dened by the law

of nations, and is afterwards brought into or found in

the United States, shall be imprisoned for life.’”

“According to the defendants, the crime of

piracy has been narrowly dened for purposes of

§ 1651 as robbery at sea, i.e., seizing or otherwise

robbing a vessel. Because they boarded the Nicholas

only as captives and indisputably took no property,

the defendants contest their convictions on Count

One, as well as the axed life sentences. […]”

“e [United States v. Hasan, 747 F. Supp. 2d

599, 602 (E.D. Va. 2010) (‘Hasan I’)] opinion was

issued on the heels of the August 17, 2010 published

opinion in United States v. Said, 757 F. Supp. 2d 554

(E.D. Va. 2010) (Jackson, J.), wherein a dierent

judge of the Eastern District of Virginia essentially

took these defendants’ view of the piracy oense by

recognizing a robbery element. Like these defendants,

the Said defendants have been charged with piracy

under 18 U.S.C. § 1651 for attacking—but not

seizing or otherwise robbing—United States Navy

ship. See Said, 757 F. Supp. 2d at 556-57 (describing

indictment’s allegations that, around 5:00 a.m. on

April 10, 2010, Said defendants red at least one shot

on USS Ashland from ski in Gulf of Aden). e

Said court granted the defendants’ pretrial motion,

pursuant to Federal Rule of Criminal Procedure 12,

to dismiss the piracy count from the indictment

because no taking of property was alleged. Id. at 556.”

“As the Said court recognized, article I of the

Constitution accords Congress the power ‘[t]o

dene and punish Piracies and Felonies committed

on the high Seas, and Oences against the Law

of Nations.’ U.S. Const. art. I, § 8, cl. 10 (the

‘Dene and Punish Clause’). In its present form, the

language of 18 U.S.C. § 1651 can be traced to an

1819 act of Congress … […]”

“Invoking the principle that a court ‘must

interpret a statute by its ordinary meaning at the

time of its enactment,’ the Said court deemed Smith

to be the denitive authority on the meaning of

piracy under 18 U.S.C. § 1651. … e Said court

noted that it was the rst court since the 1800s to

be tasked with ‘interpreting the piracy statute . . . as

it applies to alleged conduct in international waters.’

Id. at 558. Looking to courts that have addressed

the piracy statute post-Smith in other contexts, the

Said court concluded that ‘the discernible denition

of piracy as ‘robbery or forcible depredations

committed on the high seas’ under § 1651 has

remained consistent and has reached a level of

concrete consensus in United S[t]ates law.’ Id. at

560. […]” [Slip op. 7-11] (footnotes omitted)

“Here, the district court took a dierent tack,

as laid out in its sweeping Hasan I opinion denying

these defendants’ pretrial motion to dismiss the

Count One piracy charge from their Indictment.

at is, the court focused on piracy’s unusual status

as a crime dened by the law of nations and subject

to universal jurisdiction.”

“e district court began by recognizing that,

‘[f]or centuries, pirates have been universally

condemned as hostis humani generis—enemies of