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United States v. Dire

Published online by Cambridge University Press:  20 January 2017

Eugene Kontorovich
Eugene Kontorovich*
Affiliation:
Northwestern University School of Law
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Extract

In the first criminal piracy decision by a United States court in nearly a century, the U.S. Court of Appeals for the Fourth Circuit ruled that the federal piracy statute’s reference to the “law of nations” explicitly ties the scope of the offense to evolving customary international law definitions of the crime. The court went on to find that under current customary and treaty law, attempted piracy falls within the scope of the international crime. In doing so, it joined several courts in nations around the world that have confronted the issue as a result of the outbreak of Somali piracy that began in 2008.

Keywords

Piracy on the high seascustomary international lawUN Convention on the Law of the Seainternational law in U.S. courtsinternational criminal law
Type
International Decisions
Information
American Journal of International Law , Volume 107 , Issue 3 , July 2013 , pp. 644 - 649
Copyright
Copyright © American Society of International Law 2013

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References

1 United States v. Dire, 680 F.3d 446 (4th Cir. 2012), cert. denied 133 S.Ct. 982 (2013).

2 18 U.S.C. §1651 (2011).

3 United States v. Said, 757 F.Supp.2d 554, 559 (E.D. Va. 2010).

4 United States v. Hasan, 747 F.Supp.2d 599, 632 (E.D. Va. 2010).

5 United States v. Smith, 18 U.S. (5 Wheat.) 153 (1820) (Story, J.).

6 U.S. Const. Art. I, §8, cl. 10.

7 see Kontorovich, Eugene, Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause, 106 Nw. U. L. Rev. 1675, 1701–02 (2012)Google Scholar (discussing drafting of the provision and quoting Gouverneur Morris, in 2 The Records of the Federal Convention of 1787, at 614–15 (Max Farrand ed., 1911)).

8 757 F.Supp.2d at 559.

9 In re Piracy Jure Gentium, [1934] A.C. 586 (P.C.).

10 United Nations Convention on the Law of the Sea, Art. 101,opened for signature Dec. 10, 1982, 1833 UNTS 3 (emphasis added), available at http://www.un.org/depts/los/.

11 757 F.Supp.2d at 564.

12 The relevant passages do not explicitly exclude attempts from the definition of the crime.

13 757 F.Supp.2d at 565.

14 United States v. Hasan, 747 F.Supp.2d 599, 637 (E.D. Va. 2010).

15 Citing, inter alia, Kontorovich, Eugene, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149, 164–67 (2009)Google Scholar.

16 See Hasan, 747 F.Supp.2d at 605 & n.7 (citing Kontorovich, Eugene, Beyond the Article I Horizon: Congress’s Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 Minn. L. Rev. 1191, 1223–27 (2009))Google Scholar.

17 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

18 see Kontorovich, Eugene, A Tort Statute, with Aliens and Pirates, 107 Nw. U. L. Rev. Colloquium 100, 107 (2012)Google Scholar.

19 Quoting Hasan, 747 F.Supp.2d at 639.

20 Here again, the court of appeals quoted the decision in Hasan : “[A]lthough the definition of general piracy provided by the High Seas Convention and UNCLOS is not nearly as succinct as ‘robbery on the sea,’ the definitions are not merely general aspirational statements, but rather specific enumerations of the elements of piracy reflecting the modern consensus view of International law.” Dire, 680 F.3d at 462 (quoting 747 F.Supp.2d at 634). Somalia is a party to UNCLOS, and the United States ratified its 1958 predecessor, which contains substantively identical provisions on piracy. see Geneva Convention on the High Seas, Art. 15, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82.

21 see Hamdan v. Rumsfeld, 548 U.S. 557, 611–12 (2006) (Stevens, J., plurality opinion) (holding that “con spiracy” to commit war crimes is not a violation of International Law and thus could not be punished under the exercise of the Offenses Clause); see also Kontorovich, supra note 7, at 1737–38.

22 Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 708 F.3d 1099, 1101–02 (9th Cir. 2013).

23 28 U.S.C. §1350 (2011).

24 See, e.g., United States v. Ali, 885 F.Supp.2d 17, 30–32 (D.D.C. 2012).

25 Hasan, 747 F.Supp.2d at 621.

26 United States v. Robins, 27 F. Cas. 825, 862 (D.S.C. 1799) (No. 16,175) (statement of John Marshall in House of Representatives, Mar. 4, 1800). The lawyers in one of the lower-court cases decided in Smith tried to use Marshall’s position as evidence of the indeterminacy of piracy law, but they had little to impeach it with. They pointed to a statement of the U.S. attorney that robbery was required, but that was not said in a case of attempt and thus, like Justice Story’s words in Smith, did not appear to be an exhaustive definition. see United States v. Chapels, 25 F. Cas. 399, 402 (CCD. Va. 1819) (No. 14,782).

27 see United States v. Tully, 28 F. Cas. 226, 229 (CCD. Mass. 1812) (No. 16,545) (“A pirate is one... who, to enrich himself, either by surprise or force, sets upon merchants or other traders, by sea, to spoil them of their goods ....”).

28 747 F.Supp.2d at 622.

29 See, e.g., Anne-Marie Slaughter, A New World Order 65–103 (2004).

30 See, e.g., Republic v. Dahir, Crim. No. 51/2009, para. 65 (Sup. Ct. July 26, 2010) (Topaz), at http://law.case.edu/grotian-moment-blog/documents/CR51-2009-Judgment.pdf; Republic v. Ise, Crim. No. 75/2010, para. 39 (Sup. Ct. June 30, 2011) (Talenduic), at http://law.case.edu/grotian-moment-blog/documents/CR75-2010-Judgment.pdf. For background on the recent spate of Somali piracy, see Agora: Piracy Prosecutions, 104 AJIL 397 (2010).

31 see Eugene Kontorovich, The Penalties for Piracy: An Empirical Study of National Prosecution for International Crime (Northwestern Public Law Research Paper No. 12-16, July 10, 2012), at http://ssrn.com/abstract=2103661.