Apr

22

The Pirate and the Talk Show Lawyer


Posted by at 8:26 pm on April 22, 2009
Category: Piracy on the High Seas

Ron Kuby
ABOVE: Ron Kuby

Although U.S. and international laws relating to piracy aren’t strictly within the domain of export laws, the issues are of considerable interest to the export community, both legal and otherwise, because of the impact of piracy on export trade from the U.S. and other countries. Also, it’s an interesting subject and allows the occasional lapse into pirate dialect.

The criminal complaint against Abduwali Muse, the pirate involved in the Maersk Alabama affair who has been brought to New York for trial, has been released. The allegations in the complaint, if true, suggest that Muse is not quite the innocent schoolboy duped by older pirates, as claimed by his mother. Rather Muse was the ringleader of the operation although, sadly for him, a devastatingly incompetent one at that.

Muse was among the first of the pirates to board the ship and, brandishing a gun, he started giving orders to stop the ship, lower a ladder to the pirate boat, and to give him a telephone number for the owners of the ship. He also demanded that the rest of the crew, at that point hiding in the safe room, surrender. A ship crew member convinced Muse that the crew would be to afraid to surrender if he was carrying a gun, thereby causing Muse to leave his gun behind as the crew member led him around the ship. Shortly thereafter several crew members tackled Muse, tied him up and carried him down to the safe room. Oops.

Later Muse was released by the crew to board the lifeboat with the Alabama’s captain as part of a deal to have the pirates leave the ship. On the lifeboat, Muse boasted to the Alabama’s captain that he had hijacked other ships. When the naval warship USS Bainbridge arrived on the scene, Muse requested permission to board where he received medical treatment for the wounds he received in the scuffle on the Alabama. When Navy sharpshooters took care of his compatriots on the life boat, Muse’s dreams of coming to America were realized, although not quite in the manner he had perhaps hoped.

The United States’ claim to have the jurisdiction to bring Muse back to the U.S for prosecution is based not only on the US flag status of the Alabama, but also under the principal of universal jurisdiction under the 1958 Convention on the High Seas and the U.N. Convention on the Law of the Sea (“UNCLOS”). (The U.S. is a member of the former, but not the latter, although both have nearly identical provisions permitting universal jurisdiction over pirates.)

Of course, that hasn’t stopped lawyer-turned-radio-host Ron Kuby, who is seeking to defend Muse, from trying to concoct a dubious theory questioning U.S. jurisdiction over Muse.

I think in this particular case, there’s a grave question as to whether America was in violation of principles of truce in warfare on the high seas. This man seemed to come onto the Bainbridge under a flag of truce to negotiate. He was then captured. There is a question whether he is lawfully in American custody and serious questions as to whether he can be prosecuted because of his age.

Presumably this is a reference to Article 32 of the 1907 Hague Convention Respecting the Law and Customs of War on Land (Hague IV), which at least might arguably be said to also state the international law regarding wars at sea. That provision states:

A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany him.

Even leaving aside the formality of the white flag, and there is no indication that Muse carried one, Hague IV and the international law governing conflicts at sea only applies to nations at war. Historically pirates have been considered hostes humani generis (“enemies of all mankind”) and completely outside protection of maritime law. Conventions relating to the conduct of war by nations have no application to them. Instead, the only protections that pirates have are those set forth in the UNCLOS and the 1958 Convention on the High Seas, both of which give the pirates a right to a trial. (Previously international law permitted summary execution of pirates at sea when caught in the act.)

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8 Comments:


I am actually a little jealous that you got to do the research/analysis on the Hague Convention and the UNCLOS. How often do we export lawyers get to do anything as interesting as that?

Comment by JH on April 22nd, 2009 @ 8:42 pm

Clif,

Nice job on the article and your research. Mr. Kuby appears to be grasping at straws, especially since the eye witness testimony directly contradicts his statement that the pirates boarded the Alabama to “negotiate”.

It will be interesting to see how the age card plays out. Are there some forensic anthropologists out there who can offer some insight on scientifically determining Muse’s lowest possible age – perhaps cranial suture closure? (although I’ve never heard of its analysis on a live subject, and various factors affect its accuracy)

June

Comment by June Deptulski on April 22nd, 2009 @ 11:47 pm

He sure doesn’t look 16 to me. Look at this photo.

Comment by Clif Burns on April 23rd, 2009 @ 7:25 am

I believe the only “right” thing to do now is take him back to that exact location of where he boarded the Alabama and have a US Navy Blackhawk deposit him into the water of which he came. OK, maybe also give him a soccer ball which he can name and relay his stories of the high seas.

Comment by Steve on April 23rd, 2009 @ 7:55 am

There’s actually always been a connection between export and priacy law. Some of the earliest court cases under the Constitution tested whether a vessel leaving port in violation of the embargoes could be taken prize and whether those prizes had turned or could turn privateer/pirate.

Comment by Hillbilly on April 23rd, 2009 @ 5:56 pm

Contrary to your comment, the US signed both the 1958 Convention on the High Seas and the 1982 UN Convention on the Law of the Sea. But it ratified the former, which takes two additional steps by the Senate and the President, while the latter steps have not yet been taken for the 1982 Agreement. But otherwise you’re right on the jurisidiction question.

Comment by William T. Burke on April 24th, 2009 @ 12:44 pm

Yes, I should have used the word “member” rather than “signatory.” Post fixed. Thanks for the catch.

Comment by Clif Burns on April 24th, 2009 @ 2:00 pm

As you note, this suspect is lucky to get a trial.

Comment by Eagle1 on April 26th, 2009 @ 8:25 pm