Nathaniel Smith, Piratical Jurisdiction: the Plundering of Due Process in the Case of Lei Shi

• Publication year: 2009

PIRATICAL JURISDICTION: THE PLUNDERING OF DUE PROCESS IN THE CASE OF LEI SHI

INTRODUCTION

Piracy is alive and well.

To the Western world, the thought of pirates likely conjures up images of wooden ships, bearded captains outfitted with hooks, and an entire host of other delightful stereotypes, all relegated to a forgotten time in our past. It would be erroneous, however, to assume that the world has fully eradicated the plague of piracy. In places like the South China Sea, Indonesia, and off the coast of the failed-state of Somalia, pirates continue to be a very real threat, having traded their swords and cannons for rocket-propelled grenades and automatic rifles.¹

These modern pirates are a threat to even the largest ships. For example, in November 2008, Somali pirates used speedboats, rifles, and rocket-launchers to seize a Saudi oil super-tanker, which was filled with crude oil valued at

$110 million,²off the coast of Kenya.³They subsequently demanded a $25 million ransom in exchange for the tanker and the safe release of its crew.⁴

Underscoring this attack is the consideration that it was not an isolated incident.⁵In fact, between January and October 2008, in the Gulf of Aden alone, Somali pirates attacked more than sixty ships, extracted between $18 million and $30 million in ransoms, and stole "booty" ranging from relief supplies to Soviet-made tanks and artillery shells.⁶

Based on the brief illustrations above, one can see that piracy is a current and prevalent issue. Consequently, as it has for centuries, international law faces the task of bringing to justice those who undertake these crimes and disrupt the peaceful seas. Because piracy threatens the trade, travel, commerce, and safety of every nation that utilizes the high seas, a near- pandemic desire developed to allow any nation to prosecute piracy, regardless of whether the prosecuting nation had any connection to the actual piratical crime.⁷As William Blackstone commented:

[A pirate has] renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: for that every community hath a right, by the rule of self-defence, to inflict that punishment upon him.⁸

The issue with permitting a nation to prosecute an instance of piracy to which it has no connection, is that this offends traditional jurisdictional requirements.⁹In most cases, a sovereign obtains jurisdiction via a nexus with the defendant, like citizenship, or through a nexus with the action itself, like the location of the crime when committed within the confines of the prosecuting state's territory.¹⁰In contrast, piracy usually occurs on the high seas,¹¹outside the ambit of any country's territorial reach, and may be committed by gangs of pirates whose national governments are unwilling or lack infrastructure to prosecute.¹²In sum, nations desire to prosecute piracy universally because of its global effects on maritime safety but, at first glance, are unable to do so because of the confines of nexus-based jurisdiction.

In response to this predicament, international law began to apply a unique weapon to gain jurisdiction over pirates-universality.¹³Universal jurisdiction is unique because unlike other recognized forms of jurisdiction, it does not require a connection between the defendant or illegal act and the prosecuting country.¹⁴Instead, universality gives subject-matter jurisdiction over certain crimes to any nation that finds the defendant in its borders.¹⁵No connection between the prosecuting nation and the criminal act is required.¹⁶

Universal jurisdiction only has two basic requirements. However, few crimes meet these preconditions because both mandate an international consensus. The first requirement is the existence of a "substantive agreement as to certain universally condemned behavior."¹⁷The second requirement is there must be a "procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior."¹⁸Stemming from these requirements is a third implicit condition-that this subset of condemned behavior be precisely defined.¹⁹Without a precise definition of the triggering crime, universal jurisdiction could be prone to abuse.

For example, courts could simply apply the label of a crime that gives universal jurisdiction to prosecute a defendant, even if the substance of that defendant's actions should not confer universality.²⁰In this case then, any court could easily avoid the requirements of nexus-based forms of jurisdiction.

Accordingly, a precise definition is essential to cabin a court's ability to extend universality beyond its internationally accepted boundaries. Sadly, this type of abuse of universality is not rare; in fact, the Ninth Circuit Court of Appeals recently committed such a misdeed in the case of United States v. Shi.²¹Here, the court stretched the conventional definition of piracy under international law beyond its limits to obtain universal jurisdiction so that it could justify prosecuting a case which it otherwise could not have adjudicated.²²

In light of this offense, this Comment aims to enumerate the Shi court's errors to both ensure fair treatment of future defendants and, more importantly, to illustrate the serious ramifications on international law and citizen well- being that can stem from a court applying universality without care. Because the doctrine accords such extreme adjudicatory power, all courts must take the utmost care in applying it. Otherwise, as will be articulated in the Conclusion, an attempt to stretch piracy, and thus universality, beyond its breaking point will produce ramifications far beyond the hull of a single ship.

To accomplish these ends, this Comment will: (1) introduce the case of United States v. Shi; (2) outline the basis of universal jurisdiction and piracy; (3) determine whether Lei Shi's actions fit under the law of nations' definition of piracy;²³and finally, (4) conclude with an evaluation of the possible effects and ramifications of Shi on the doctrine of universality, general jurisdiction, and international law.

I. THE CASE OF UNITED STATES V. SHI

Before evaluating the merits of the Ninth Circuit's decision or drawing any conclusions about the scope of universal jurisdiction in relation to piracy, it is first necessary to understand the facts of United States v. Shi. The details of this case are important because they are used as a reference point throughout this Comment for comparing forms of piracy that confer universal jurisdiction with those that do not.

Lei Shi, the defendant in Shi, was a cook aboard the Full Means No. 2, a Taiwanese commercial fishing liner registered in the Republic of the Seychelles.²⁴Apparently, Shi's employment environment was less than ideal. According to Shi, he had drawn the ire of the captain and first mate, who subjected Shi to repeated harassment, physical abuse, and eventual demotion to deckhand.²⁵On March 14, 2002, Shi's patience reached a breaking point after receiving an exceptionally savage beating.²⁶Shi responded with violence-he retrieved a kitchen knife from the ship's pantry and stabbed his two tormentors, killing the captain and the first mate.²⁷Shi then ordered the crew to throw the captain's body overboard and took control of the ship in an attempt to return home to China.²⁸He forbade anyone to use the radio and "threaten[ed] to scuttle the vessel if his instructions were not obeyed."²⁹

Shi subsequently controlled the ship for two days until the crew overpowered him and locked him in a storage compartment.³⁰Unaware of how to use the ship's radio, the crew set a course for Hawai'i.³¹The U.S. Coast Guard, who had been alerted by the Full Means's parent company that the ship had been out of radio contact, intercepted the vessel approximately sixty miles from Hilo, Hawai'i.³²The crew permitted Coast Guard officials to board the Full Means to detain, arrest, and later incarcerate Shi.³³

Shi was charged with one count of forcefully seizing control of a ship under 18 U.S.C. Sec. 2280(a)(1)(A)³⁴and two counts of committing an act of violence likely to endanger the safety of the ship in violation of

Sec. 2280(a)(1)(B).³⁵Further, Shi faced life in prison because his violation of

Sec. 2280 resulted in the deaths of the captain and the first mate.³⁶At trial, the jury convicted Shi on all counts and sentenced him to thirty-six years of incarceration.³⁷The defense appealed to the Ninth Circuit under several theories, including the assertion that the United States did not have proper jurisdiction over the case.³⁸

The Ninth Circuit issued an opinion affirming the conviction³⁹and the trial court's jurisdiction over Shi.⁴⁰It justified its reasoning on both statutory and constitutional grounds. First, the court found jurisdiction over Shi based on

Sec. 2280(b)(1)(C), which gives a court jurisdiction over an offender that "is later found in the United States after such an activity is committed."⁴¹The court affirmed that this provision is satisfied "even when a foreign national is forcibly abducted in another country by United States officials for the sole purpose of being brought to trial here."⁴²Accordingly, because Coast Guard officials "found" Shi in Hawai'i, albeit against his will, Sec. 2280 was satisfied.⁴³

Though the statute was satisfied, for jurisdiction to have been proper the case still had to meet the constitutional requirements of due process.⁴⁴"[D]ue process requires 'a sufficient nexus between the defendant and the United

States, so that such application would not be arbitrary or fundamentally unfair.'"⁴⁵Further, the court reasoned, "[a] nexus requirement, imposed as a matter of due process, makes sense when the 'rough guide' of international law also requires a nexus."⁴⁶To be sure, a jurisdictional nexus between the defendant and the prosecuting nation is essential for two reasons: (1) to give the defendant notice of...