Who's a Pirate? U.S. Court Sees Duel Over Definition

By KEITH JOHNSON

NORFOLK, Va.—Not since Lt. Robert Maynard of the Royal Navy sailed back triumphantly to nearby Hampton Roads in 1718 with the severed head of Blackbeard swinging from his bowsprit has this Navy town been so embroiled in the fight against piracy.

For the first time since the Civil War, accused pirates will be put on trial this fall in a federal courtroom. The defendants are six Somali men fished out of the Gulf of Aden, between Somalia and Yemen, in April after allegedly firing on a U.S. Navy ship, which blew apart the tiny skiff they were on.

Prosecuting pirates, rather than hanging them from the yardarm, is the modern world's approach to the scourge of Somali piracy that has turned huge swathes of the Indian Ocean into a no-go zone for commercial vessels.

But there's a problem: Some 2,000 years after Cicero defined pirates as the "common enemy of all," nobody seems able to say, legally, exactly what a pirate is.

U.S. law long ago made piracy a crime but didn't define it. International law contains differing, even contradictory, definitions. The confusion threatens to hamstring U.S. efforts to crack down on modern-day Blackbeards.

The central issue in Norfolk: If you try to waylay and rob a ship at sea—but you don't succeed—are you still a pirate?

It may seem strange there should be doubt about an offense as old as this one. Piracy was the world's first crime with universal jurisdiction, meaning that any country had the right to apprehend pirates on the high seas.

The Romans took piracy so seriously they overrode a cautious Senate and gave near-dictatorial powers to an up-and-coming general named Pompey, who soon swept away piracy in the Mediterranean.

In more recent centuries, European countries such as Britain cracked down on pirates—except when busy enlisting certain ones, dubbed "privateers," to help them fight their wars by raiding enemy ships.

Pirates even spurred the creation of the U.S. Navy, after Thomas Jefferson erupted over the cost of paying tribute to the Barbary Corsairs for safe passage of U.S. merchant ships. At the time, the U.S. was paying about one-tenth of the federal budget to the pirates.

Supplied with warships, President Jefferson waged war on the Barbary pirates (whence the line "to the shores of Tripoli" in the Marines' Hymn). By 1815, the North African pirate kingdoms had been subdued.

When Congress dealt with piracy in a statute four years later, the crime was so easy to recognize that legislators didn't bother to describe it, just the punishment. The 1819 statute that made piracy a capital offense (since changed to mandatory life in prison) simply deferred to "the law of nations." That legal punt has kept American jurists scrambling ever since.

The stage was set for the Norfolk trial on April 10 of this year when the USS Ashland, cruising in the Gulf of Aden about 330 miles off Djibouti, was fired upon at 5 a.m. by Somali men in a small skiff. The Navy vessel, an amphibious dock landing ship, returned fire with 25-mm cannon, wrecking the 18-foot skiff and sending its six occupants overboard.

The Ashland sent a search boat to recover the Somalis and photograph the smoking hulk of the skiff, which contained at least one weapon and what looked like a grappling hook or anchor.

Though that boat was blasted to pieces, even when pirate skiffs survive, the ships they target are often loath to bring the skiffs aboard. One captured by a Navy force in 2006, according to the judge advocate's testimony in a subsequent trial in Kenya, was crawling with "roaches the size of leopards."

In Norfolk, the prosecution has begun its effort to convince the District Court for the Eastern District of Virginia that the quickly foiled Somalis are guilty not just of lesser charges but the main charge of piracy.

"Violent attacks on the high seas without lawful authority have always been piracy under the law of nations, in 1819 and today," said the lead prosecutor, Benjamin Hatch, at a pretrial hearing last month.

"So if one ship fires a bow-and-arrow," asked Judge Raymond Jackson, rubbing his brow, "or a slingshot, or a rock, those are all acts of violence, and thus piracy?" The prosecutor nodded.

The public defender, Geremy Kamens, weighed in. "That a slingshot fired upon another ship would expose the defendant to a mandatory life sentence shows the absurd result of this reading," he said. The defense added that under this broad definition, Greenpeace activists could be considered pirates for their anti-whaling antics.

The defense lawyers trawled through history books, coming to rest upon an obscure 1820 Supreme Court ruling.

"We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea," Justice Joseph Story wrote for the majority in United States v. Smith.

That gave the defense lawyers their main argument: Piracy is robbery on the high seas; it isn't merely attempted robbery at sea, which is covered by a separate statute that the Somalis are charged with as well.

Since the attack on the Ashland clearly failed, it wasn't piracy, the defense argues, and therefore, the most serious charge should be dropped.

But the prosecutors, too, have probed early sources—17th-century Dutch jurists, 18th-century British writers, 19th-century maritime cases, an 1800 speech by then-congressman John Marshall, and a slew of international treaties.

The prosecution has leaned heavily on a 1934 ruling by Britain's Privy Council, which pondered the case of a similarly failed attack at sea, near Hong Kong.
In that case, the jury found the defendants guilty, but said its verdict was subject to the question of whether it's really piracy if no actual robbery occurs. The court in Hong Kong said it isn't, and acquitted the attackers.

The Privy Council members, however, after hacking through thickets of legal technicalities, ultimately reached a different conclusion. "Actual robbery is not an essential element in the crime of piracy," they said; "A frustrated attempt to commit piratical robbery is equally piracy."

They added, with more than a hint of exasperation: "Their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law."

Beyond the legal wrangling and obscure historical references, the implications of the case in Norfolk are serious. Piracy's golden age may have passed two centuries ago, but it remains a scourge in places like the Strait of Malacca in Indonesia and Malaysia, off the coast of Nigeria, and above all off the east coast of Africa, where the disintegration of Somalia has led to a major resurgence.

The first half of 2010 saw about 200 raids and unsuccessful attacks on ships, the bulk of them off Somalia. In early August, two cargo ships were hijacked. In all, an estimated 18 ships and their crews are currently being held for ransom.

To fight the problem, the U.S. and the United Nations are counting on prosecuting pirates. Some U.N. officials would like to have an international tribunal.

In the meantime, the U.S. and other countries have helped Kenya, the closest stable country to the source, to put scores of pirates on trial. But Kenyan law is cumbersome, requiring witnesses to testify on three separate occasions, a tough order logistically for merchant sailors. The European Union is now trying to jump-start Kenya's pirate prosecutions—the first sentence will come later this month—but progress is slow.

As a result, attackers captured by European warships in the Indian Ocean often are let go for lack of any real legal recourse. A Spanish warship caught seven Somali pirates red-handed in early August, men who had been trying to waylay a Norwegian chemical tanker. The Spanish frigate immediately released them because it would have been difficult to prosecute them, the EU naval force off Somalia said.

That leaves courtrooms like the one in Norfolk as among the best hopes for bringing pirates to justice and deterring future ones. But even seemingly clear-cut cases don't necessarily pass muster in court.

After a celebrated incident in April 2009, when U.S. Navy Seals snipers killed three Somali men holding an American captain hostage on a small boat after a raid, rescuing him, the lone Somali survivor of that attack on the Maersk Alabama pleaded guilty to lesser charges in New York, not to piracy.

Indeed, the last U.S. piracy conviction was in 1861, of a Confederate blockade runner.

Now the court in Norfolk must contend with a motion to dismiss the piracy charge, which would leaving only such lesser charges as attempted plunder.

The prosecution argues that U.S. courts should defer to international law, especially an 1982 U.N. Law of the Sea treaty the U.S. never ratified. Aping the 1958 Geneva Convention, it offers an expansive definition of piracy as any illegal acts of violence, detention or depredation committed for private ends on the high seas.

Defense lawyers balk at that suggestion. "We do not interpret U.S. law based on U.N. resolutions, but rather what Congress meant at the time," says the public defender, Mr. Kamens.

Judge Jackson is expected to rule soon.

Printed in The Wall Street Journal, page A1