Combating Somali pirates: Fourth Circuit casts warning by holding piracy includes failed attempts.

• Author: Sheehan, Charles E.
• Position: TRANSNATIONAL CRIMINAL LAW

United States v. Dire, 680 F.3d 446 (4th Cir. 2012).

Piracy off the coast of Somalia, a problem that has emerged from the instability of the country's economic, social, and political sectors, threatens international security, the global economy, and American citizens and commercial interests. (1) Yet, despite joint efforts by the United States and the international community to combat this persistent danger, Somali pirates have not been deterred from pursuing this highly profitable criminal enterprise. (2) In United States v. Dire, (3) the Court of Appeals for the Fourth Circuit took a prolific step towards securing safe navigation of the seas when it interpreted "piracy" according to 18 U.S.C. [section] 1651. (4) The court rejected the defendants' challenge to their piracy convictions, concluding that the crime of piracy should be defined by the evolving standard under the law of nations to encompass violent conduct. (5)

On April 1, 2010, on the high seas off the coast of Somalia, Abdi Wali Dire, along with four other Somalis, attacked the USS Nicholas. (6) All five defendants were transferred to the Eastern District of Virginia. (7) A federal grand jury returned a six-count indictment against the defendants on April 20, 2010. (8) On July 7, 2010, a federal grand jury returned a superseding indictment, with Count One charging defendants with piracy in violation of 18 U.S.C. [section] 1651. (9) The Court denied defendants' motions to dismiss Count One of the superseding indictment, determining that the alleged conduct, if proven true, would satisfy the definition of piracy under 18 U.S.C. [section] 1651. (10)

After an eleven-day trial, the jury returned separate guilty verdicts against each of the five defendants. (11) Defendants timely appealed their piracy convictions, again asserting that simply opening fire at the USS Nicholas did not constitute piracy. (12) On petition for review, the Fourth Circuit affirmed the defendants' piracy convictions, holding that international law, through the law of nations, has defined piracy to include acts of violence committed on the high seas for private ends without an actual taking. (13)

Piracy has existed for over 2000 years with the word "pirate" originating from the Latin term pirata. (14) Recognizing the immediate threat that piracy posed to society, the international community labeled pirates as hostes humani generis, or enemies of all mankind. (15) Because pirates indiscriminately attack ships from any nation, international law has recognized piracy as a crime that requires universal jurisdiction. (16) Nevertheless, despite the crime of piracy being at the forefront of the international community, "piracy" means different things to different people within criminal law jurisprudence. (17)

Article I of the United States Constitution authorizes Congress to address the crime of piracy. (18) Congress enacted its first anti-piracy legislation in 1790 to penalize individuals who engaged in piratical acts. (19) However, in United States v. Palmer, the Supreme Court held that the Act was invalid as pertaining to conduct by subjects of a foreign state against foreign vessels. (20) Recognizing that the 1790 Act only addressed municipal piracy, Congress passed new legislation in 1819, phrasing the Act so that universal jurisdiction could also be invoked. (21) The Supreme Court soon interpreted section 5 of the Act of 1819 by concluding that piracy was % crime of a settled and determinate nature ... that robbery, or forcible depredations upon the sea, animo furandi, is piracy." (22) Today, nearly 200 years later, the definition of piracy articulated in section 5 of the Act of 1819 remains virtually unchanged in 18 U.S.C. [section] 1651. (23)

The plain reading of 18 U.S.C. [section] 1651 defines the crime of piracy by direct reference to the "law of nations." (24) In In re Piracy Gentium, the Privy Council of England decided that the international crime of piracy did not require a completed act of robbery. (25) The Privy Council concluded that there existed "a gradual widening of the earlier definition of piracy. (26) Moreover, two recent international agreements have specifically codified the crime of piracy. (27) Today, "the law of nations has become synonymous with the term 'customary international law,' which describes the body of rules that nations in the international community 'universally abide by, or accede to, out of a sense of legal obligation and mutual concern." (28) Even with U.S. and international resources at their disposal, two different federal court judges presiding in the Eastern District of Virginia reached conflicting conclusions as to whether violent conduct satisfied the elements of a charge of piracy. (29)

In United States v. Dire, the Fourth Circuit determined that Congress intended 18 U.S.C. [section] 1651 to describe piracy as a crime defined by the law of nations and subject to universal jurisdiction. (30) The court held that the definition of piracy under the law of nations encompassed violent conduct for the purposes of the statute. (31) The court reiterated that the language of 18 U.S.C. [section] 1651 provided for a flexible definition of piracy and was not limited to the "robbery on the high seas" holding as provided in Smith. (32) The court noted that by choosing to include the "law of nations" in the statute, Congress permitted subsequent developments in the definition of piracy within the international community to be considered. (33) Accordingly, the Fourth Circuit agreed that contemporary international law defining piracy can evolve. (34)

Recognizing that no other United States case since Smith directly addressed the definition of piracy, the court examined how foreign nations defined piracy. (35) Furthermore, the court analyzed the two international treaties that codified the crime of piracy and determined that United Nations Convention on the Law of the Sea (UNCLOS) was an applicable customary standard. (36) Convinced that the language from 18 U.S.C. [section] 1651 incorporated modern developments of international law, the court found that at the time of the alleged attack on the USS Nicholas, customary international law defined piracy to include acts of violence. (37)

The Fourth Circuit appropriately interpreted 18 U.S.C. [section] 1651 to include modern developments in international law. (38) By interpreting 18 U.S.C. [section] 1651 in this fashion, the Fourth Circuit has applied a flexible, yet sufficiently precise definition to the crime of piracy that can incorporate any future changes under the law of nations. (39) The Fourth Circuit's reading of 18 U.S.C. [section] 1651 properly addresses piracy as a unique international offense that still requires a universal solution. (40)

Permitting Smith to be the decisive authority on the definition of piracy under 18 U.S.C. [section] 1651 forces courts to determine what Congress meant by piracy, as defined by the law of nations, at its 1819 enactment. (41) While Smith does have precedential significance, the narrow reading requiring the element of "sea robbery" diminishes the value placed on combatting this international dilemma...