Not so with today's version of swashbucklers apparently as the poor penning of laws has produced a current international legal regime lacking a formal definition of pirate. Though this might not seem to be the most pressing issue with the global economy in a meltdown and as the US is going on nearly a decade of military engagements far from home, the seas of the world are currently facing the highest level of pirate activity perhaps since America was an English colony. And, as that fact has implications for both the aforementioned commercial and military interests of the US, solving the pirate problem has taken on greater urgency of late.
Piracy is well established as one of the crimes which the courts of all nations have jurisdiction; in legal terms it is a crime of 'universal jurisdiction.' When the US wrote its anti-piracy laws, this typically meant a universal right to hang pirates on sight (as well as on site). This had the benefit of certainty for both would be pirates and those who were able to capture them. However as time progressed, many nations came to define the crime differently, leading to a situation where universal jurisdiction and universal definition don't always meet to form a coherent legal regime.
Two factors have made this problematic. First is simply the proliferation of piracy as technology and improved armaments have made this particular criminal endeavor easier and more profitable. As a result, piracy cases, and therefore definitions, are appearing more frequently in courts than they have in nearly two centuries. Secondly, at least from a US perspective, is current US law on the subject. Developed in the earlier half of the 19th century, it merely refers to the 'law of nations' when defining piracy. Though this wasn't such a problem when the law of nations meant death to pirates whenever and wherever you found them, it has led to uncertainty in the present as various legal and political regimes (ie the law of nations) have come to treat piracy in vastly different ways.
The latest such problem with uncertainty facing the federal court system in the US has been what to do in attempted piracy cases, that is those situations where pirates are frustrated in the act of what would have otherwise been an act of piracy. The defense in such a case currently involving Somalians captured by the US Navy is arguing, quite competently it would seem, that their mere attempt at piracy isn't the same as being a pirate under current international law. Meanwhile the prosecution has had to concede some rather big points in its definition of what would constitute a sufficient level of 'aggression' (a catch-all the government would like to use) necessary to gain a conviction in an attempted piracy case.
Although the six Somalians scheduled to go on trial this fall are very likely to be punished for lesser charges, it is just as possible that they will be able to beat the piracy charge because their act of firing on, but not damaging a US warship, (though foolish) does not fall under commonly used definitions of piracy. If they are able to beat the charge, it will be a loss for the prosecution, but perhaps a win for the system.
This is because such an obvious example of piracy gone unpunished could spur legislators into addressing an issue they most likely didn't have to address when they were last on the campaign trail but which is causing problems for our military and commercial interests in every major ocean and on critical shipping lines. Additionally, such action by the US government could lead to a more global regime as either the UN tackles the problem or perhaps as other nations join the US in a concerted effort to develop a clearer, more modern definition of piracy. Though better defining the crime of, and punishment for, piracy is unlikely to dissuade all would be buccaneers, it is a start, and would at least give clarity to those who are best able to apprehend pirates. This would alleviate a current concern by some navies who merely let suspects go rather than face uncertainty.
Piracy may not be the world's oldest profession, but its ancient roots are nonetheless likely entrenched enough that they will never be cut back entirely. This is especially true in regions of the world where poverty, disease and hunger lead desperate people to desperate measures. However a better legal regime for apprehending and prosecuting both pirates and those who attempt piracy will at least slow down the trend and ensure that the seas are safer for commercial and military interests alike. Meanwhile, we will be left to ponder what Robert Maynard would think of a legal system whose biggest problem with pirates is defining them...
UPDATE: From International Law Prof Blog:
US Judge Dismisses Piracy Claims Against Six Somalis
The U.S. government tried to stretch the definition of piracy a bit too far, according to a U.S. District Court Judge in Virginia. The judge dismissed piracy counts against six Somali men who were arrested in the Gulf of Aden after an attack on the U.S.S. Ashland in April. The Somali men fired upon the U.S. ship, but never attempted to board the ship. The Ashland fired back, setting the smaller vessel on fire. The crew of the Ashland then rescued the Somali men and placed them under arrest. The judge held that piracy as defined by the law of nations traditionally means robbery at sea. See U.S. v. Smith, 18 U.S. 153 (1820). Because the Somalis never left their ship and never attempted to steal anything from the Ashland, the judge rejected the government's attempts to charge them with piracy. The defendants still face several charges under other federal statutes including attack to plunder a vessel, acts of violence against persons on a vessel, and assault with deadly weapons. The case is United States v. Mohamed Ali Said, (U.S. District Court for the Eastern District of Virgina, Aug. 17, 2010).
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