The US Naval Institute recently announced that the 2010 history conference will discuss the topic of piracy. Hopefully this little bit of interesting news finds its way into the discussion.

A judge on Tuesday dismissed piracy charges against six Somali nationals accused of attacking a Navy ship off the coast of Africa, concluding the U.S. government failed to make the case their alleged actions amounted to piracy.

The dismissal of the piracy count by U.S. District Judge Raymond A. Jackson tosses the most serious charge against the men, but leaves intact seven other charges related to the alleged April 10 attack on the USS Ashland in the Gulf of Aden. A piracy conviction carries a mandatory life term.

These pirates still face other charges, but lets just go over what has happened here a second.

For those who don’t know the details, these 6 pirates tried to attack the USS Ashland off the coast of Somalia, and the USS Ashland responded by blowing their little skiff out of the water, rescuing the pirates, and arresting them on charges of piracy. The defense for the pirates was able to argue that the actions of attacking a US Navy ship accidentally – thinking it was a commercial ship they could hijack – does not qualify as the definition of piracy.

“The court finds that the government has failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy as defined by the law of nations,” Jackson wrote in granting the defense motion to dismiss.

Attorneys for the six men had argued that the men did not seize or rob the Ashland, falling short of the centuries-old definition of piracy.

I imagine it was kind of hard for the US government to make their case considering they blew the little pirate skiff out of the water for attacking the warship. By the standards this judge is setting in US courts, someone can attack a US flagged ship and as long as they can dump their equipment overboard before they are caught – anything short of a successful hijacking doesn’t quality as the definition of piracy.

The decision is intended to protect protesters like Greenpeace from being labeled pirates (but not all NGOs are Greenpeace, just ask Israel), which means now US case law is protecting the NGO which can now take the act of “protesting” US flagged ships on the high seas to a whole new level if they are smart about it.

Thankfully, Code-Pink doesn’t have a Navy… yet. This is a pretty nasty can of worms the judge has opened up because apparently, in the 21st century we cannot find a suitable definition of piracy that distinguishes Somali’s with AK-47s attacking US warships from Greenpeace activists – at least that’s how it played out in a Virginia courtroom. You really can’t make this up.

Posted by galrahn in Maritime Security, Piracy

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  • What would happened if the pirates used some heavier weaponry such as a RPG and did actually damaged USS Ashland before throwing their weapons to the sea and stating that their attack was an accident?

  • Derrick

    Can this ruling be appealed in a higher US court?

  • Paul Withington

    According to the AP report available through the NYT website, one defendant’s lawyer expects the ruling will be appealed to the 4th U.S. Circuit Court of Appeals in Richmond.

  • Derrick

    Wouldn’t attacking an US naval warship in international waters qualify as an act of war/terrorism? What actions qualify as an act of war? What are acts of terrorism?

    Shouldn’t these pirates also stand trial in an US military tribunal for committing an act of war against the US?

  • Andy (JADAA)

    Absolutely guarantee the Government will appeal this up to the Fourth Circuit and farther if needed. Intent to commit the act, the mens rea, is needed under the generally accepted tenants of the law. They intended to attack the vessel, just because they (unknowingly) attacked a warship doesn’t mean their intent was any different.

    I would respectfully argue that the mistake was in bringing this case in a Federal Court venue with little experience in Admiralty law to begin with. I imagine Virginia was chosen due to home port of the vessel attacked. New Orleans would have been a better, much more experienced forum. The judge has erred as a matter of law, in my opinion.

  • This tendency to rely upon so-called “international law” has got to be stopped. Congress has the power to direct the courts in this matter, and ought to do so. They should require that the courts (including the Supreme Court) only rely on United States laws and judicial precedent.

  • William R. Abernathy

    I must drive to Philadelphia to see if Commodore Stephen Decatur is spinning in his grave.

  • Chaps

    Time was when pirate ships were sunk and the pirates left to fend for themselves. No prisoners, no trial, no judge to throw charges out.

  • Claudio

    Chaps, it actually still happens. See Russian experience with pirates “”

  • Jeremy

    Ken, this decision *isn’t* based on international law. The Government tried to rely on broader definitions of international law to make the piracy charge stick, but the judge rejected those in favor of the US Supreme Court’s precedent regarding piracy. (This is explained in the link, above.)

  • Jeremy

    The exact language:

    “Given the flexible manner in which international sources treat the definition of piracy, and that these sources inherently conflict with Supreme Court precedent, the court’s reliance on these international sources as authoritative would not meet constitutional muster and must therefore be rejected,” he wrote.


    This isn’t a question of International Law, that is why they are in Federal Court. The US Statute merely references the “Law of Nations” to define Piracy instead of defining it in the statute. By the UN Law of the Sea Treaty (which the US has not agreed to but has agreed to in principal except for the section on seabed mining) is pretty clear on the definition of Piracy. The Judge through that out (I would assume since the US has not ratified the UNLOS). Earlier case law is not so clear and that was the arguement by the defense. As Andy points out, I would expect the ruling to be appealed all the way to the Supreme Court if required.

  • UltimaRatioReg

    Coming to a courtroom near you (especially if you live in NYC):

    “A federal judge today threw out the terrorism charges against six Al-Qaeda suspects accused of attacking the World Trade Center on September 11th, 2001, dealing a blow to the government’s attempt to treat mass murder of American citizens in an acto of war as a law enforcement issue.

    The defendants still face other charges in the September 11th attack on the Manhattan landmarks, but the terrorism charge carried the harshest penalty – life in prison. They remain accused of misdemeanor explosives charges and denying civil rights to the 2,600 Americans killed in the attacks.

    “The court finds that the government has failed to establish that any unauthorized acts of violence or aggression committed on American soil constitutes terrorism,” U.S. District Judge Raymond A. Jackson says in his ruling.”

  • Let me take a contrary view by stating that:

    (1) The judge did rely on U.S. precedent and decided in the correct manner given that precedent (see my post on this at;

    (2) Congress has the power to define “piracy” to include armed attacks on warships if it so chooses but has not done so;

    (3) Had the judge applied UNCLOS Art.101, the dreaded “international law” instead of U.S. precedent (U.S. v. Smith at, the result may, in fact, have been different:
    Definition of piracy
    Piracy consists of any of the following acts:
    (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:
    (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;
    (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State;
    (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;
    (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

    Chaps is right – I doubt anyone in the ancient past who fired on an armed vessel lived to bicker over whether what they did was piracy or not .

    Finally, they have other charges pending. Like, assault, I presume.

  • Grandpa Bluewater

    Apparently, a law degree is a form of brain damage. No one could be born this stupid.

  • Eagle1

    I resemble that remark.

  • Eagle1

    But let me rephrase it in terms a “brain damaged” attorney can grasp:

    If you were driving along a highway and someone took a shot at you and you caught that person would the charge against him be highway robbery? Or some sort of assault/attempted murder charge?

    It doesn’t seem like it could be robbery if all that involved was a shot. You would need more than that to make a robbery case.

    And you need more than that to claim piracy here, it seems, until COngress revises the law.

  • Derrick

    Why were the prisoners turned over to a civilian court? Why weren’t the accused pirates charged in a military court?

  • Paul

    Why were they rescued at all? As I recall, it is the responsibility of the individual boater to provide life vests, flotation devices, signalling equipment and a fire extinguisher for their craft. Since said skiff didn’t have said devices it would’ve failed a safety inspection. It was their fault they didn’t know the big grey ship could shoot back. Spend some of your millions on high speed internet and do some research before shooting and perhaps you won’t make that mistake twice. Or, I dunno, buy a “book” and learn that “grey” usually is the color of a “warship” and can do some damage to you?

    Knowing that “rescue” is the job of the Coast Guard and not the Navy, shouldn’t the USN simply not stop to “rescue” those who shoot at them, unless they are members of a military engaged in active combat against the United States? I think of rescuing the odd U-boat survivor and Japanese sailor during WWII. Pirates don’t fit that category, right?

    Whatever happened to “yardarms” anyway?

  • Eagle1, I was dumbfounded until I read your comments. Thanks for clarifying. So, it seems like they cannot be charged for piracy, but can be charged for a host of other things.

    Shame is, I bet the Captain didn’t get to give that favorite command, “Prepare to repel boarders!”, since they were in the process of trying not to drown.

  • Derrick

    Off-topic, but for curiosity’s sake:
    When was the last time an US naval captain gave the favorite command : “Prepare to repel boarders!”?

    Is my guess of sometime before World War 1 a bit off?

  • Chuck Hill

    Actually there was close quarters combat a couple of times in WWII after destroyers rammed U-boats and got stuck on top of them. In at least one case the U-boat crew tried to board.

    Destroyers boarded U-boats in several cases attempting to obtain code material.

    There were also some seizures of German or Norwegian trawlers that were collecting weather information in the Atlantic. In at least some cases that was also yielded code information. The Coast Guard captured two trawlers.

  • Paul

    Don’t forget the Altmark where allegedly some of the British boarders carried cutlasses.


    Even given the definition Supreme Court precedent, they are guilty of Piracy and I am hopeful that the judge’s ruling will be overturned on appeal.

    From the same Supreme Court reference,
    “What the law of nations on this subject is may be ascertained by consulting the works of jurists writing professedly on public law, or by the general usage and practice of nations, or by judicial decisions recognizing and enforcing that law.”

    Since the UNLOS Treaty is generally accepted by the vast majority of the world, including the US in this application (although not the whole seabed mining thing), and more importantly, has been cited as the definitive reference in numerous cases for the last 20+ years, then it would seem to best fit the definition of what the law of nations is and not English admiralty law from before the 1800s.

  • USNVO: Your argument is pretty much along the lines that the government took. The judge, however, rejected the UNCLOS argument (and the 1958 Convention which the US did sign) argument, finding the law “unsettled” except for the Smith case. You can download the opinion as a pdf at gov.uscourts.vaed.253001.94.0.pdf

    As noted in an update to my post on my home site, yesterday, there are several international legal scholars who feel the judge was wrong. Should the government decide to appeal this part of the case, then the appellate courts will have to sort it out.

    In the interim, the Somalis are being tried on several other counts.

    On the bright side, even if the government loses on all counts, the Somalis get to be sent home to their hell hole of a country. Probably “cruel and unusual punishment” . . .

  • Paul


    There is an implicit irony in your last paragraph– if they were tried and convicted in the US it’d probably be the first time they’ve had three meals a day, been able to live inside a place with running water and get some semblance of an education. They’d also have a good shot at living past 30.

  • Very true. They should be so lucky….


    Thanks for the link, it made for very interesting reading. It is interesting that two compelling arguments were not accepted.
    1. That the British Privy Court, that clarified the meaning of piracy in English common law to include attempted robbery as well as actual robbery, they same law that formed the basis of the 1820 ruling, should clarify the 1820 ruling.
    2. That the 1958 Geneva Accords and 1982 UNLOS pretty much settle the definition of piracy. The argument that since different nations choose to apply different punishments to the same crime (piracy), it is somehow unsettled as to the meaning of what piracy is, was especially tortured logic.
    It will be interesting to see what happens next as well as what the ruling will be on the same point in the second similiar case of mistaken identity.

  • David Kerr

    Israel owes us a favor here. Q ships which sink pirate motherships and leave the crew in the water. No record of any kind that it ever happened.

  • Grandpa Bluewater

    Eagle 1:

    Normally you seem quite functional. This guy, not so much.

    A treaty with the Government of the United States has the force of law upon the agents of that government (err, that would be the US Navy, and the Federal Courts). Geneva Accord’58 was signed by a sitting President with the approval of the Senate per the Constitution. Don’t care what ILOS 1982 says, since not ratified or signed. We don’t get wanted criminals back from countries we don’t have an extradition treaty with either.

    That would be settled, in my aging and cranky mind.

    Now note the definition of “piracy” in said Document (the ’58 one) “illegal acts of violence, detention or depredation committed for private ends on the high seas.”

    Illegal act of violence, hmmm, that would be on the high seas, pull the trigger, become a pirate.

    Which they did and are, despite the traffic, small claims, and unqualified for Admiralty Judge in Va. Drain Bamage, or just too lazy to look up and read the applicable RATIFIED treaty. QED.

    IMnotHO. The appeals court should have fun with this. But hey, I could be wrong. Maybe we signed ILOs 82 and I missed the memo…
    If we did, we should read it, like the congresscritter said.

    Drain Bamaged.

  • Grandpa Bluewater

    Interestingly enough, a US Warship stopped and searched a Nazi surface commerce raider on suspicion that they were a slave ship. Law never repealed, ruled valid therefore, as I recall.

    I think he put in for prize money too. Wonder if he got it.

  • Byron

    Granpa, if my rusty memory serves, he was told, “Don’t be silly”.

  • Grandpa Bluewater


    Well, that was about the money. Sell a ship at auction and split the profit by shares, sailors could make some real money. Can’t have that, the Army would get jealous. I mean the AF had a hissy about frocking selected for promotion guys to match the billet they were already in.

    First one to find it on google and post it buys the beer.

  • Chuck Hill

    Grampa’s incident was in Nov. 1941, before the US came into the war, that’s why the “slave ship” dodge. It was CL Omaha and DD. Somers captured the blockade runner Odenwald disguised as SS Willmoto of Philidelphia with a cargo of rubber enroute from Japan to Germany.

  • eastriver

    No knowledge to comment, but damn, folks, been fun reading yours! Thanks to all.

  • Grandpa Bluewater

    And Chuck owes me a beer. That was quick. And it was Chuck. Thanks Chuck.