My seven-year-old has become an avid reader of the New York Times. His inspiration? Piracy off the coast of Somalia.We’ve all heard by now about the dramatic and almost unbelievable rescue of Captain Richard Phillips by Navy SEALs (choppy waters, night vision, three shots, three pirates down—it is the stuff of Hollywood). The United States has indicated that it will prosecute the one captured pirate in a U.S. court for the crimes of hostage taking and/or piracy.
Piracy is one of the oldest international crimes, and its international prohibition in many respects gave rise to the principle of universal jurisdiction. The concept that all states could prosecute the pirate was embodied in the 1958 Convention on the High Seas and its successor, the 1982 U.N. Convention in the Law of the Sea (UNCLOS) (affectionately called “a constitution for the oceans”), which defines piracy at Article 101 as a phenomenon of the high seas:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).
According to this definition, acts of violence or depredation that occur within a state’s territorial or 
internal waters are considered acts of armed robbery at sea within the territory of the littoral state rather than as piracy per se.
Both treaties also codified the customary principle of universal jurisdiction. Article 105 of UNCLOS reads:
On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.
The phenomenon of piracy in the Gulf of Aden has sparked considerable and escalating U.N. Security Council activity. On June 2, 2008, the Council adopted Resolution 1816 under Chapter VII of the UN Charter, which—in characteristic diplo-speak—expressed grave concern about the threats posed by acts of piracy to humanitarian aid and commercial shipping and deplored recent attacks. It urged states interested in commercial maritime routes off the coast of Somalia to increase and coordinate their efforts to deter piracy in cooperation with the Transitional Federal Government of Somalia, the internationally recognized government of Somalia (such as it is) and the 14th attempt to create a functioning government since the fall of the Siad Barre regime in 1991. Most significantly, for a period of six months from the date of the resolution, the resolution permitted states cooperating with the TFG to enter Somali territorial waters to suppress acts of piracy (art. 7(a)) in a fashion that exceeds the traditional doctrine of hot pursuit (see Art. 111 of UNCLOS). States are also encouraged to cooperate in determining jurisdiction for the prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia.
Subsequently, S.C. Resolution 1838 called upon states whose naval vessels and military aircraft operated in the region to use
the necessary means, in conformity with international law, … for the repression of piracy.
Resolution 1846 extended Resolution 1816 and also tied acts of piracy to the terrorism multilateral treaty regime by invoking the 1988 Convention for the Suppression f Unlawful Acts Against the Safety of Maritime Navigation (SUA), promulgated in the wake of the Achille Lauro hijacking by the Palestine Liberation Front. Pursuant to Article 3, a person commits a breach of that that treaty if s/he:
(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or
(b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship; or
(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or
(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or …
(g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f).
That treaty embodies territorial (including flagship), nationality (both active and passive), and custodial jurisdiction.
Finally, S.C. Resolution 1851 extended the authority of states cooperating in the fight against piracy on land as well as sea, enabling states to
undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea … provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law.
All the Security Council resolutions emphasized that their authorizations are limited to the situation in Somalia and should not be considered as establishing customary international law. In the debates surrounding these resolutions, several states emphasized that the phenomenon of piracy could not be divorced from the humanitarian and political crisis within Somalia. They also noted that piracy is not just a problem for flag ships & private industry; 3.5 million people in Somalia are dependent on food aid, and the World Food Program’s maritime deliveries have been impacted by piracy.
Traditionally, the anti-piracy policy of the international community was one of deterrence rather than prosecution. Captured pirates were simply released, and private companies (or their insurance companies) would pay the necessary ransoms as a cost of doing business. As pirate attacks and ransom requests increase exponentially, however, states (including France, the Netherlands, and Kenya) are beginning to prosecute offenders. (The U.K. has so far refused to bring pirates to its territory out of fear they will raise asylum or non-refoulement claims).
Under U.S. law, pirates can be prosecuted under 18 U.S.C. § 1651, which provides that
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.
The Supreme Court determined that Congress constitutionally enacted the predecessor of this provision under its power
to define and punish piracies and felonies committed on the high seas, and offenses against law of nations.
U.S. Const., Art. I, § 8, cl. 10. See U.S. v. Smith, 18 U.S.C. 153 (1820). Subsequent sections of Title 18 set forth further refinements to this crime (e.g., arming of privateers, confederating with pirates, plunder of a distressed vessel, the receipt of pirated goods, etc.).
Pirates can also potentially be prosecuted for
- acts of terrorism (18 U.S.C. § 2332b et seq.),
- violence against maritime navigation (18 U.S.C. § 2280)
- hostage-taking (18 U.S.C. § 1203) or
- interfering with commerce by threats or violence (18 U.S.C. § 1951).
Unlike the piracy statute, these other statutes often require some nexus to the United States (e.g., the hostage was a U.S. citizen, the organization sought to be compelled is the U.S. government, or the goods were in transit from or to the U.S.).
