Tuesday, October 23, 2012

Piracy & Maritime Terrorism: A 35-Year Retrospective

Captain Keith F. Graham

Part 1 of 5-part Series

I began giving weekend seminars for the Academy’s Continuing Education Department to those interested in the maritime matters in 1975, while still on excess leave from the Navy to attend law school, and the most popular topic over each sixteen-hour session on everything encompassed by international maritime law was “piracy”.

As I had already mastered criminal law and was occasionally assigned as an assistant prosecutor in military justice matters when on temporary duty as a JAG student, I did not then (nor now) find much romance in sea rogues whose stock in trade are the common law felonies of murder, arson, rape, mayhem, kidnap, and robbery. None of those crimes are made glamorous simply because the platform for their commission happens to be on the water. No doubt I also diluted audience enthusiasm by addressing the topic of “maritime terrorism”, which I characterized as a phenomenon waiting to happen. In 1975, no one wanted to hear about terrorism from the sea and the laws that might apply; they just wanted more on pirates.

Over the intervening 35-plus years, the pertinent law has evolved in some respects and changed not at all in others. What follows is my own legal “take”, my own opinions, my own view of this precinct of the maritime world. Hopefully it is sufficiently supported by legal theory, practice, logic, and facts. In any event, it is supported by my convictions and constant reinforcement to audiences nationwide as well as audiences from several nations that border the Pacific Rim.

Historical Definitions
It has been said that, “Piracy as a ‘profession’ is one day younger than seafaring,” and piracy's persistence in human history has led to its acknowledgement as a crime against the law of all nations. Consequently, early on in the development of international law, there was near universal consensus that any nation could take action against pirates, i.e., assume jurisdiction as a matter of customary international law against “hostis humani generis” or the enemies of all mankind. This ancient legal premise was further buoyed by the 17th Century theory that in asserting jurisdiction to act against pirates, nations were also exercising “collective self-defense”, a newly evolved legal concept among the nation-states of Europe.
Apart from universal jurisdiction in efforts to combat piracy, nations could also refer to their own domestic or internal laws as a basis to proceed, and actions could be taken on the basis of criminal or civil jurisdiction, but the better accepted view and historical practice have been to emphasize the role and responsibility of the world community in taking legal measures against piracy.

In the English common law tradition brought to Colonial America, piracy consisted of committing acts of robbery and depredation on the high seas (a “depredation” being an act executed by force, violence or the demonstration of the intent to use force or violence against persons or property), which, if committed ashore, would amount to a felony. Thus our common law contemplated acts done with a felonious intent. When the site of such criminal actions was the open ocean or the world’s highway, they were deemed to be committed by felons acting with a sense of universal hostility against all humanity and commerce indiscriminately.
Since a “felonious intent” was necessary to constitute the crime of piracy, an individual acting in good faith under a grant of authority could not be guilty of piracy. Thus the first and often misunderstood exception to piracy emerges… privateering. Whereas nations were willing to act to suppress piracy, many nations practiced and encouraged privateering, which was a formal speculative business venture. Commonly referred to as the “right to make private war” on select nations, privateering was based on a governmental grant of authority such as a letter of marque and reprisal, a commission or warrant, and essentially allowed maritime commerce raiding against targeted countries. Sponsors, investors, and benefactors of privateering involved the “first citizens” and ruling classes of most nations. In the United States, two signers of the Declaration of Independence were well known privateers. Early in our national history, Congress granted letters of marque freely under the authority of the Constitution. However, private war at sea is also disruptive to world commerce and so by 1856, the community of nations was ready to renounce the right of privateering in the Declaration of Paris with notable exceptions being Spain, Mexico, Venezuela, and the United States.

Lack of Precedent
In the young United States, one of the first acts of Congress in April 1790 declared that any person who committed on the high seas or any basin out of the jurisdiction of any particular nation, murder or robbery or any other offense, which if committed in the United States would be punishable by death, was a pirate and should suffer death when brought within any US territorial jurisdiction.

Other 18th and 19th Century federal statutory authorities state that seizing a vessel and running away with it with a felonious intent is piracy (note no element of force or violence required); attempting to corrupt the master of a vessel to go over to piracy was unlawful; it was illegal to combine or confederate with pirates; and finally Congress pronounced it illegal to correspond with pirates. All were well-intentioned legislative efforts to militate against the scourge of piracy in America, but are meager artifacts to take decisive legal action in the 21st Century.

Historical case law in the United States concerning piracy is also spartan. A jury in 1819 had the privilege of deciding whether someone was a pirate; the Supreme Court provided a definition of piracy in 1820; while the last case in almost 150 years was actually a privateering case at the start of the Civil War held in New York City in which the jury deadlocked. Now, recent circumstances have forced a new judicial look at our arcane authorities. Late in 2010, two different judges made conflicting rulings in two different cases in federal district court against Somali nationals charged with piracy for attacking US naval vessels. Whether the rulings will be reconciled at the federal appeals court level or whether the cases ultimately percolate up to the Supreme Court for resolution, the symptoms causing the disparate district court rulings are the real issue. In one instance, the federal judge determined that the existing piracy statute must be interpreted as it was meant when enacted in 1819 and the actions of the Somalis did not rise to the level of piracy, while on similar facts, the other judge concluded acts of piracy had been perpetrated.

Reasonable people and judges disagree all the time…they should not, however, have to base the legal fate of public sea service members and commercial mariners on stale, vague, and historically obscure authority. It is clearly time for the United States to update existing law and seek new authorities to counter the upswing in piracy worldwide. Sadly, I am on record for the last 37 years as making this exhortation to the collective deaf ears of our Nation’s lawmakers.

Watering Down the Definition
As noted above, legal authority against piracy also includes more than proceedings against the participants. There has been the potential under select US criminal statutes (and mirrored in admiralty law) to capture and seize a vessel involved in a piratical or other legally offensive venture and seek its condemnation, forfeiture, and judicially ordered sale in a prize court. This process, in parallel with the condemnation of cargo found aboard the vessel, is equally arcane, unlikely, and irrelevant to the type of piracies practiced in the world’s hotspots. (A similar process to be conducted under the law of war received very limited use by the US, even in World War II.)

Customary international law, including criminal jurisdiction over pirates, gave way to multi-national treaty law beginning with a series of United Nations Law of the Sea conferences and conventions. The latest treaty addressing piracy was the third United Nations Convention on Law of the Sea (known as UNCLOS III), which was signed in 1982 and became effective in 1994. Articles 100-107 deal with controlling piracy and the obligations of signatories in combating it. Article 101 of that Convention contains a consensus definition of piracy that should have facilitated the universal war that all nations have declared against piracy. Regrettably, it does not.

The majority of the world community chose a narrow view of piracy in Article 101, requiring three elements that serve as impediments to resolute action by participating nations. First, the illegal acts of violence and detention must be committed for private gain. Therefore, kidnap, murder, intimidation, etc., committed at sea where the motive is public attention or political statement (such as the celebrated 1961 case of a Portuguese luxury liner hijacked near the Dutch Antilles) cannot by definition be piracy. Secondly, there must be two vessels or craft involved. Consequently, otherwise piratical acts, including mutinies, which are staged aboard one vessel only, are excluded. Finally, the site of the piracy must be on the high seas or some other location outside a nation’s jurisdiction.

This constituent part of the definition simply fails to account for the site of most piracy today, i.e., conducted within the territorial waters of many nations. These three inherent defects in the majority’s definition were made for the sake of political expediency and compromise. However, the loopholes created by the language of Article 101 have permitted acts (when committed on the platform of an underway vessel) such as nations protecting active insurgents and terrorists, destruction of life and property in the name of “national liberation”, and the commission of random acts of violence having colorable political overtones, all to be untouchable as “piracy” per se.

Next month I'll discuss the ramifications of UNCLOS III and its effect on piracy.