Written by: Regina Paulose
The United Nations Convention on the Law of the Sea (UNCLOS), considered to be customary international law, defines an act of “piracy” as any one 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).
The punishment for piracy is left up to the state that captures the pirates. Under the US Code, piracy is defined as, “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.” Prior to the recent cases that have been filed in Federal Court, the governing case was US v. Smith (from 1820) which interpreted piracy as “robbery at sea.”
While things remained quiet with regards to the interpretation of sea piracy laws in the US, the decision in US v. Said disturbed the status quo waters. A federal judge dismissed the charge of piracy at the pre-trial stage, interpreting piracy to narrowly mean a “robbery at sea.” The prosecutor filed an interlocutory appeal, and the Appeals Court remanded the case for proceedings to be consistent with US v. Dire.
In US v. Dire, the defendants, a group of Somali pirates, approached a vessel assuming it was an unarmed merchant vessel. Dire and two other defendants on the skiff were armed and began shooting at the vessel, which was actually the USS Nicholas on an anti-piracy mission. The defendants attempted to flee after the crew of the Nicholas returned fire, but were caught before reconnecting with its mothership. There were two more defendants aboard the mothership who were also apprehended. During questioning the defendants each separately confessed the scheme to hijack the vessel.
The defendants on appeal asserted that their attack did not amount to piracy under USC 1651 because it was not a “robbery at sea.” In summary, the Appeals Court disagreed and found that USC 1651 “incorporates a definition of piracy that changes with advancements of the laws of nations.” Further, piracy under the law of nations encompasses the violent conduct of the defendants.
The Dire decision should allow the Said court to reconcile its decision in light of the analysis made in Dire. This should make the laws in the US consistent with regards to the interpretation of what piracy constitutes.
In the EU, Italy has also begun national prosecutions of pirates. The newest piracy cases to emerge in Italy are the Montecristo Hijack trials and the Valdarno. In October 2011, the Montecristo, an Italian cargo ship carrying scrap metal, was attacked by Somali pirates. The crew “sealed” themselves off in the citadel room. The crew continued to watch the pirates attack the ship with RPG’s from the citadel. The pirates boarded the Montecristo. When a helicopter was heard outside, the crew fired flares and flashed SOS signs to indicate they needed help. They were rescued by British and US warships who then arrested the pirates onboard the Montecristo. The pirates were brought to Italy for trial and were charged with “attempted hijacking” among other charges. The Somali pirates were convicted and sentenced between 16 to 19 years.
In Valdarno, the pirates were not able to board the vessel, but attempted to stop the vessel by firing at it. They were apprehended by the Italian military on board a Yemeni ship, thus making one of the critical issues whether Italy had proper jurisdiction. This issue was not flushed out in litigation because the defendants accepted plea deals.
All of these cases point to a possible increase in national prosecutions of piracy cases. These cases indicate that the emerging jurisprudence seems to be consistent with international norms and that countries are willing to prosecute these criminals. This should come as good news to the Kenya Piracy Court which claimed in 2010 that it would “stop prosecuting piracy cases” unless other countries were willing to “share the burden.” The importance of the Kenya Court should be emphasized. The cases prosecuted by Kenya have been used in decisions such as Dire to further illustrate what the legal norms and the exact contours of piracy are.
In light of these cases, perhaps one important discussion the international community should take the time to have is what kind of sentences and plea offers should be acceptable in piracy cases. While each case will have a different set of facts, the trends in litigation indicate that challenges to jurisdiction are extremely common. If sentences are similar it would prevent defendants from “forum shopping.” All the defendants in the cases discussed so far are from Somalia. Many of them are motivated to engage in this behavior because of the lack of opportunities and the quick availability of funds. It is important that during sentencing national judges also consider incorporating educational and opportunities for rehabilitation (if needed) if they exist within the prison system. Otherwise, once the pirates have served their sentences, they will return to venture out to the high seas for work again.
 This definition is similar to the 1958 UN Convention on the High Seas
 UNCLOS Article 101
 UNCLOS Article 105, “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.”
 18 USC §1651
 US v Smith 18 US 153 (1820)
 US v. Said, 757 F. Supp. 2d at 556- 57, See Douglas Guilfoyle, “Prosecuting Pirates in national courts: US v. Said and piracy under US law” EJIL: Talk! August 23, 2010) available at: http://www.ejiltalk.org/prosecuting-pirates-in-national-courts-us-v-said-and-piracy-under-us-law/. See also Professor Eugene Kontorovich, who argues that the lack of a definition was because Congress foresaw changes to the definition in “Piracy Charges dismissed by Federal Judge” The Volokh Conspiracy blog, (August 17, 2010), available at: http://www.volokh.com/2010/08/17/piracy-charges-dismissed-by-federal-judge/
 US v. Said, US Court of Appeals Fourth Circuit, No. 10 -4970, May 23, 2012, available at: http://www.ca4.uscourts.gov/opinions/Published/104970.p.pdf
 These were the facts presented at the trial of the defendants. US v. Dire, No. 11-4310, 4th Circuit Court of Appeals, May 23, 2012, 5.
 Dire at 9
 Dire at 41
 Enzo Mangini, Somali Pirates Sentences, November 28, 2012, Maritime Security Review, http://www.marsecreview.com/2012/11/somali-pirates-sentenced/
 This is the reported testimony presented during trial by the crew members aboard the Montecristo. Enzo Mangini, Montecristo Hijack Trial, October 26, 2012, available at: http://www.marsecreview.com/2012/10/montecristo-hijack-trial/
 Italian Prosecutor Scavo charged the pirates under Italian Navigation Code Article 1135. See also Matteo Crippa, Historic Piracy Trial Opens in Italy, March 27, 2012, available at: http://piracy-law.com/2012/03/27/historic-piracy-trial-opens-in-italy/
 Mark Lowe, “Italy Jails More Somali Pirates” Maritime Security Review, December 4, 2012, available at: http://www.marsecreview.com/2012/12/italy-jails-more-somali-pirates/