Disclaimer: This is a very brief discussion of the very basic jurisdictional elements in current, and potential future, piracy prosecutions. I got all this from a very interesting article by Michael Bahar, "Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations," which was published by in the 40th Volume, 1st issue of 2007 the Vanderbilt Journal of Transnational Law.
Now that the U.S. now has a Somali pirate in its custody and is allegedly considering whether to prosecute him or not I've got to ask myself under what power we can try him? When I started thinking about this I was pretty sure from a logical standpoint that we could do so. Maritime law usually grants countries broad powers in asserting jurisdiction over acts at sea even if the acts occur thousands of miles from its shores. So what precisely allows would allow the U.S. to prosecute this pirate if we decide to? What kinds of punishment attach? Can we tar and feather him and parade him down Constitution Avenue in D.C. in the back of a horse drawn wagon? Can we hang him and leave the body in front of New York Harbor with a sign around his neck that says "Ye be warned"? I'm fairly certain the last two options are out of the question, but what can we do.
Our ability to try pirates is recognized under international law in the form of both Article 101 of the 1982 United Nations Law of the Sea and Article 15 of the Geneva Conventions of the High Seas (the U.S. is a party to the Geneva Convention, but not to the United Nations act). Both of these laws recognize three types of activity that constitute piracy. The pirates that attacked the Maersk Alabama they will fall under the one that considers an act of violence, on the high seas, by a private party, against a ship outside the jurisdiction of any State, as an act of piracy. An act of piracy will trigger universal jurisdiction against the pirate which means that any State can try the pirate according to its laws. This means the U.S. can try the pirate we have in custody according to U.S. law. Article 1, Section 8 of the U.S. Constitution grants the U.S. the power to try pirates, and Title 18 section 1651 of the United States Code makes the crime of piracy punishable by life in prison. Will the U.S. try this pirate since it has the power? Maybe not. In 2006 the Navy apprehended 10 Somali pirates, but chose to turn them over to Kenyan authorities for trial. This may show that trials of pirates apprehended so far away may be more of a hassle than they are worth and are better tried by countries geographically closer to where the act took place.
It's important to note that what distinguishes piracy is that it is carried out by private actors, so state-sponsored pirates would not fall under universal jurisdiction. The Somali pirates all seem to be private actors so far. Something else interesting is that terrorism that takes place on the high seas would subject the terrorists to universal jurisdiction. This means that any terrorist committing acts of terrorism on the high seas could be tried by any country that apprehends them and could be subjected to harsh piracy laws. However, attacks by state-sponsored terrorists (Hezbollah maybe?) would not qualify for universal jurisdiction.
While I was writing this post I was struck by the historical similarities between piracy and terrorism. I'm probably not the first person to draw this connection, but it's new to me so I want to lay out what I think are the similarities. For hundreds of years before the invention of the airplane and the railroad, the only alternative to land travel was sea travel. Shipping was the way that countries carried out trade with each other. Shipping was the most effective way to move goods quickly and efficiently. Given the importance of maritime commerce, piracy was a major threat to the lifeblood of almost every country. Piracy could attack the economic viability of countries and could attack their ability to administer to imperial possessions. This is why laws against piracy were so severe and the powers of countries to deal with pirates were so broad. Pirates were considered enemies of all mankind. When you look at piracy in this light it is easy to make the connection between it and terrorism. Terrorists are capable of inflicting a great deal of damage. September 11th brought down two of the tallest buildings in the world, struck at the heart of the U.S. military, brought down 4 commercial airliners, and killed thousands of innocent people. The aftermath of the attack also shut down U.S. markets for days and did a great deal of economic damage. In response to the terrorist threat the U.S. went to war, and passed many harsh and controversial laws, some of which expanded governmental powers too far. If you look at anti-terrorism laws in countries like Israel and Russia you will see that the U.S. is not the only country to employ harsh and controversial practices to its fight against terror. Like pirates, terrorists are viewed as a threat common to all countries. The extreme reaction to terrorism is similar to the extreme reaction that governments had toward piracy hundreds of years ago. Again, I believe that the reactions are similar because of the similar danger to society that they pose. An important distinction between piracy and terrorism is that piracy is motivated mostly by pecuniary interests where as terrorism is more ideologically driven; however, both practices are able to shake a country to its core.
In conclusion, I'm talking about the legal standards surrounding modern-day piracy in Somalia because it is an important current event, and I think that recent events have gotten people interested in what is happening over there. It's important to understand what is happening in the present, but I also believe it is important that we recognize the historical similarities between piracy and terrorism. I think it gives a good glimpse as to how governments react towards enemies that threaten the foundations of their society.