On July 13, 2012, the U.S. Federal District Court for the District of Columbia handed down United States v. Ali Mohamed Ali. This case is remarkable for several reasons: first, it is the first time the United States has used the principle of universal jurisdiction to prosecute a Somali pirate and second, the prosecution is not based on what we traditionally think of as piracy.
In November 2008, a band of Somali pirates seized the CEC Future as it sailed through the Gulf of Aden, the treacherous sea lane between Yemen and Somalia that connects the Red Sea to the Indian Ocean. At the time, the Danish-owned Future carried cargo, was flying the Bahamian flag, and was crewed by Russians, an Estonian, and a Georgian. Just after the ship was seized, Ali Mohamed Ali came aboard to act as a translator and go-between for the pirates and the Danish shipowners. He remained on the ship for sixty-nine days, only departing once the ransom had been paid. The ordeal ended in January 2009 when the Danish owners parachuted the ransom on to the ship. Fortunately none of the crew were injured; however, the payout was likely between $1 million and $2 million.
Two years later, in April 2011, Mr. Ali was arrested at Dulles International Airport as he made his way to an education conference. On April 26, 2011, federal prosecutors charged him with piracy and hostage taking, and the connected aiding and abetting and conspiracy charges.
What is remarkable about this case is that there are no U.S. domestic interests implicated. Neither the crew nor the ship were American; in fact, neither party seriously contends that the ship has ties to the United States. However, the court concluded that the U.S. anti-piracy statute1 is based on the principle of “universal jurisdiction” and consequently does not require domestic ties. Universal jurisdiction permits a state to exercise jurisdictional control beyond its territory, in certain circumstances, even when that state’s domestic interests are not implicated. Piracy has long been held as a universal jurisdiction crime; however, Ali is the first time this theory has been put into practice.
After determining that it could exercise jurisdiction over Mr. Ali, the court turned to how broadly “piracy” was construed in statute and international law. Because Mr. Ali was charged with aiding and abetting piracy and conspiracy to commit piracy, the D.C. District Court had to determine whether international law permitted and the statute contemplated prosecution for these offenses. To determine the boundaries of the crime of piracy, the court turned to Article 101 of the UN Convention on the Law of the Sea.2 For the aiding and abetting component, the court found that UNCLOS Art. 101(c) is functionally equivalent and Mr. Ali’s charge could stand. Conspiracy, however, is not in the UNCLOS definition and the court could not find a basis to permit the charge.
Once complete with the piracy analysis, the court turned to the hostage taking counts. Hostage taking is not within the definition of piracy, and thus lacked the universal jurisdiction. But, states can extend their laws extraterritorially, as the United States did when it enacted legislation putting the Hostage Taking Convention into force. Although Somalia is not party to the Convention, the court, rather boldly, declared that treaty law could be applied in the face of divergent customary international law.3 Indeed, the treaty law may be applied against non-parties so long as it does not violated peremptory norms. Therefore, because aiding and abetting hostage taking was a cognizable crime and the U.S. authorized extraterritorial jurisdiction, Mr. Ali could properly be charged. However, the prosecution ran into a hang up when it charged conspiracy. Under the Charming Betsy principle, because conspiracy to take hostages is neither contemplated by the Hostage Taking Convention nor did Congress expressly intend to violate international law, this charge could not stand.
This case provides a powerful tool to combat piracy. No longer are prosecutions limited to the poor Somalis on skiffs; with this favorable ruling, U.S. prosecutors can go after the kingpins and financiers. Now that the question, “Can we prosecute those who plan and benefit from piracy?” has been answered, we must now ask whether we will take on that role.