Andrew Higdon, One Earth Future Foundation. Broomfield, Colorado, USA.
On November 7, 2008 the Bahamian flagged cargo ship CEC Future was attacked by Somali pirates on the high seas in the Gulf of Aden. The attackers, armed with AK-47s and rocket propelled grenades, fired shots and boarded the ship. The ship and her crew (eleven Russians, one Georgian and one Estonian) were released a month later when the Dutch ship owners paid a $1.7 million USD ransom. In order to negotiate with the outside world, the pirates employed Ali Muhammad Ali who acted as a facilitator and interpreter onboard the ship. Ali made $16 500 USD from his cut of the ransom, and negotiated an additional $75 000 USD from the ship owners for coordinating the release – all without leaving Somali territorial waters for any significant length of time.
In addition to being a pirate negotiator, Ali also served as the Director General of the Ministry of Education of Somaliland – a fact that neatly conveys at the scale of the problems facing Somalia. US prosecutors used his position to lure him into the US by inviting him to a fake education conference in Raleigh, North Carolina. Upon arrival he was immediately arrested and charged under US piracy and hostage taking laws. How could the US claim jurisdiction over a non-national who committed a crime in another country against a ship sailed and owned by foreign nationals?
Under international law, states must have jurisdiction over the person and the offence in order to affect a legitimate prosecution. In the case of piracy, nations rely on customary international law and the UN Convention on the law of the Sea (UNCLOS 1982) to ground their jurisdiction. Unique among crimes, piracy has long been treated as an offense that any nation can prosecute. Unlike other theories of jurisdiction (such as “the territoriality principle” which gives states jurisdiction over events that take place within their territory, or “the nationality principle” with gives states jurisdiction over actions committed by a their nationals) piracy is a crime that requires no nexus for a state to properly assert jurisdiction. Basically, any state that finds a pirate on the high seas can prosecute him. Traditionally, this unique jurisdictional aspect of piracy has been viewed as a consequence of the fact that pirates committed their crimes on the high seas, outside of anyone’s jurisdiction, and against the international community at large.
But Ali hadn’t operated on the high seas; he had helped facilitate piracy from Somali territory. The prosecutors charged Ali under 18 U.S.C. § 1651 – the US law that prohibits piracy – which states that individuals commit an offence where they commit piracy as defined by international law. This meant that the court had to examine the provisions of UNCLOS. Despite a long history of academics and law makers articulating the belief that piracy was something that could only occur on the high seas, the court took the opposite view. Brown J. ruled that since the sub article criminalizing the facilitation of piracy did not explicitly mention a high seas requirement (while other articles did) this indicated that no high seas requirement existed. While the position is defensible, it does suggest a challenge to the accepted order of jurisdiction.
It is highly unusual for a state to claim jurisdiction over the actions of a foreign national who committed a crime within the territory of his own nation, and where there is no other nexus with the prosecuting state. This is predicated on the understanding in international law that states will not interfere with the internal affairs of others. With this ruling, the US appears to be signalling its willingness to do so in certain situations. Perhaps the court decided as it did because of the fact that in Somalia there is little chance that men like Ali will ever see a courtroom. It seems unlikely that they would have decided the same way in a case that concerned a more developed nation. In any event, it illustrates the seriousness with which US prosecutors regard international crime and their comfort with dealing with it domestically. It is something that I think we should watch carefully.