Published today in The Scotsman
Somalia is a part of the world which has become synonymous with piracy, particularly after the ordeal in 2010 of British couple Paul and Rachel Chandler. It remains a huge problem in the region (basically the Arabian Sea and Indian Ocean) with EU data indicating seven large ships and 176 hostages are currently in the hands of pirates. There were more than 150 attacks on ships in 2011, a slight rise on 2010. It’s certainly lucrative, netting Somali pirates a staggering $146 million in ransom payments in 2011 alone.
A crackdown on an unprecedented scale (at least since the days of Pompey the Great) has followed, involving the US, China, Russia, India, Japan, the EU and Nato. Slowly, they seem to be gaining the upper hand.
At the same time as patrolling the seas, however, a number of authorities have been engaged in the prosecution of those pirates who have been captured. The US has been in the vanguard, with a Virginia federal court in April convicting Mohammad Saaili Shibin on charges of piracy. He was found guilty of being a “hostage negotiator” in the hijacking last year of the US yacht SV Quest, together with a German merchant ship, and sentenced this month to 12 life sentences. The four civilians on board the Quest were murdered, while those on the German ship were tortured in order to extract a greater ransom.
Those who did the boarding pled guilty and received life sentences, while those specifically involved in the murders will receive the death penalty.
The multilingual Shibin’s role as a negotiator, however, raises a unique point because he remained firmly on Somali soil throughout. His role, it seems, was to research the backgrounds of hostages with a view to calculating the appropriate ransom figure. Could he, therefore, be guilty of piracy? Is there such a thing as a land pirate?
Blowing the dust from the USA’s 200-year-old piracy laws, Shibin’s defence team maintain that only those who board and rob a ship on the high seas can be guilty of that crime. However, District Judge Robert Doumar, who heard the argument, opined that while an actual presence on the high seas was originally envisaged, the law had to evolve to embrace piracy in its modern form. The defence argument was therefore rejected.
Judge Doumar’s opinion appears to be strengthened by the fact that US piracy law otherwise refers to piracy “as defined by the law of nations”, and the main point of reference in international law is the UN Convention on the Law of the Sea which, at article 101, includes “facilitating” acts of piracy within the crime’s definition. While Judge Doumar’s opinion therefore appears correct, there is at least one other first-instance decision (of a Judge Huvelle) which reaches a different view. It accordingly looks likely that the US Supreme Court will in due course have to settle once and for all whether a pirate needs to take to sea.
As defence attorney James Broccoletti said: “He [Shibin] has never been on the high seas and so I think the Supreme Court’s going to have to decide in the modern era what piracy is, what the law of piracy is and what one has to do to be guilty of it.”
Of course, prosecuting attorney Neil MacBride was somewhat more blunt in his views post-sentence: “This case explodes the myth, if still it exists, that pirates are some kind of romantic, swashbuckling characters from Hollywood summer movies. This case showed that pirates are brutal, greedy, reckless, desperate criminals who will kidnap, torture and kill hostages in pursuit of their financial greed.”
Even Gilbert and Sullivan may have struggled to find the comic side of that.