IN a landmark case a federal judge in Norfolk, Virginia, has dismissed piracy charges against six Somalis accused of attacking a US Navy ship in the Gulf of Aden last April.
Not since Lieutenant Robert Maynard of the Royal Navy sailed back triumphantly to nearby Hampton Roads in 1718 with the severed head of Blackbeard swinging from his bowsprit has this navy town been so embroiled in the fight against piracy, noted The Wall Street Journal.
But legal attitudes have changed. US District Judge Raymond Jackson granted a motion by attorneys for six accused, saying: "The government had failed to establish that any unauthorised acts of violence or aggression committed on the high seas constitutes piracy as defined by the law of nations in 18 USCS.1651.
The problem is one of definition. Some 2,000 years after Cicero defined pirates as the "common enemy of all," nobody seems able to say, legally, exactly what a pirate is.
Said the Norfolk federal judge: "Following the government's assertions would subject defendants to an enormously broad standard under a novel construction of the statute that has never been applied under United States law, and would in fact be contrary to Supreme Court case law."
Judge Jackson noted, however, that while he dismissed the piracy count, the government is not without tools to try and punish the men who are accused of using a small skiff to attack the USS Ashland, a 610-foot dock landing ship, reports the American Shipper.
The government said as the skiff approached the USS Ashland, at least one occupant raised a firearm and shot at the navy ship. The USS Ashland returned fire and destroyed the skiff with a 25 millimetre cannon. One man was killed. The accused pirates did not board the vessel.
"It appears the judge adopted a very narrow interpretation whereas the Supreme Court in the case he cites, tended to define piracy in accordance with international law and in a broader way," said Blank Rome lawyer John Kimball.
According to Robert Rigney, an attorney for the Somali men, if his clients had been convicted on these charges, they would have been subject to a life sentence without the possibility of parole.
He also criticised the anti-piracy law in 18 USCS 1651 for being too vague for criminal law as it states: "Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."
"You have to be given fair warning of what you are charged with. If you are charged with murder, if you are charged with assault, you know what the elements are. But under the criminal law, 'piracy under the law of nations,' is just too vague," said Mr Rigney.
"If you want to change the law so that it says piracy is under the Geneva Convention, well then Congress is going to have to do that and they have not done that in 190 years," he added.
The government is expected to appeal to the 4th US Circuit Court of Appeals.
"In dismissing the main count of piracy levelled against the six Somali defendants, Judge Jackson has pointed out that the US Congress has enacted two separate standards to govern piracy.
"Just as punishment for attempted but unsuccessful murder is less than that for a proper murder, the accused pirates, too, are eligible for a lesser standard of judgement."
Source : HKSG, 21.08.10.
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