Private security company Blackwater is, apparently, pitching itself to shipping companies as their solution to all their pirate problems. They’ve even got a 183-foot ship that can carry two helicopters and a shipload, so to speak, of rigid-hull inflatable boats. The ship can carry 30 pirate hunters in addition to its crew of 15. No word yet of any takers.

Of course, Blackwater’s proposal may look better on parchment than it does in practice. This being a blog about export law, I can’t resist wondering initially if Blackwater needs any approval from the Directorate of Defense Trade Controls (“DDTC”) before it sets off on the high seas. Certainly it will need licenses from DDTC for any weapons being taken on the boat, except for non-automatic firearms exempted by section 123.17 of the International Traffic in Arms Regulations (“ITAR”). (I tend to doubt, however, that non-automatic firearms are much use in pirate-hunting). I also don’t think that a Technical Assistance Agreement with Blackwater’s foreign clients will need to be approved by DDTC, since Blackwater won’t be performing a defense service for it’s clients as that is defined by section 120.9 of the ITAR — namely, providing assistance in the design, maintenance and use of defense articles or the provision of military training.

But dealing with the DDTC seems to be the least of Blackwater’s worries here. Rather it seems that well-established principles of international law may result in Blackwater getting all dressed up and having no place to go. Worse yet, if Blackwater takes any actions against suspect pirates, that may well constitute itself an act of piracy and subject Blackwater’s employees and their craft to seizure on the high seas by foreign, or even U.S., military forces.

Articles 100 through 107 of the U.N. Convention on the Law of the Sea (“UNCLOS”) cover piracy. Most significantly, Article 107 would prevent Blackwater’s ship or its crew from seizing any suspected pirate craft as that right is reserved under that article to “warships and military aircraft,” i.e. vessels and aircraft under the control of the military service of a State. And if the Blackwater ship fired upon or attempted to board a suspected pirate craft that would likely constitute and act of piracy as defined by Article 101 of UNCLOS. That article defines “piracy” as

any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed … on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft.

Of course, once Blackwater’s attack on the other craft becomes an act of piracy, then, under Article 105 of UNCLOS, any State that is a member of UNCLOS can seize Blackwater’s ship and its crew and punish the crew under its own laws. Although the United States has not ratified UNCLOS it is still a party to the 1958 U.N. Convention on the High Seas which has virtually identical provisions governing piracy and which would permit the United States as well to seize Blackwater’s vessel and crew if Blackwater fired upon a suspected pirate craft.

Blackwater is free, however, to open fire on any pirate craft that fire on or try to hijack Blackwater’s ship under customary principles of international law that permit reasonable and proportionate acts of self-defense. But who is going to pay Blackwater to go put a ship in the Gulf of Aden that can only fire at the pirates when they try to hijack Blackwater’s ship and must sit and watch when the pirates go after its client’s ship? Perhaps the Blackwater ship could accompany its client’s ship and fire on a pirate vessel that attacked the client ship as an extension of the client ship’s right of self-defense, but the legality of that would be clearer if Blackwater employees were on the attacked vessel rather than on Blackwater’s own ship.

ABOVE:Somali Pirates

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Today we’re going to take a brief detour into the law of piracy which, although not strictly an export law topic, is a legal topic of interest to many exporters, particularly if a ship carrying their exports gets nabbed by modern-day pirates off the Horn of Africa. The occasion for this salty detour is an article in today’s Wall Street Journal by David Rivkin and Lee Casey.

The starting point for the article is the hijacking of the Saudi oil supertanker by Somali pirates. Rivkin and Casey claim that the pirates are benefiting from a confusion about international law on piracy. This confusion allegedly makes it difficult for third-party nations to prosecute pirates when, and if, they are captured.

Capturing pirates is not the critical problem. Rather, the issue is how to handle those in captivity. … One solution would be for the capturing state to press charges based on the much misunderstood and abused principle of “universal” jurisdiction. This is the notion that any state may criminalize and punish conduct that violates certain accepted international-law norms. Although its application in most circumstances is dubious — there is very little actual state practice supporting the right of one state to punish the nationals of a second for offenses against the citizens of a third — piracy is one area where a strong case for universal jurisdiction can be made (if only because piratical activities often take place on the high seas, beyond any state’s territorial jurisdiction).

First, the authors’ notions that universal jurisdiction is appropriate because piracy often occurs on the high seas “beyond any state’s territorial jurisdiction” indicates that the authors don’t fully understand the various grounds for the exercise of extraterritorial jurisdiction, both on the high seas and elsewhere. When piracy takes place on a flagged ship, as is usually the case, that ship is considered the sovereign territory of the country which flagged it, so the piracy is not “beyond any state’s territorial jurisdiction.”

Moreover there are other accepted grounds for the exercise of criminal jurisdiction over pirates captured at see. International law recognizes the rights of countries to enforce their own criminal laws against their own nationals for extraterritorial crimes. This would give Somalia the right to prosecute the pirates at issue. The “passive personality principle” gives states the right to prosecute extraterritorial crimes committed by non-nationals against nationals of the prosecuting states. This principal would allow jurisdiction by countries over crimes committed against their own nationals in the course of the piratical activities. And some states, including the United States, have, I think questionably, asserted that the territorial principle of international jurisdiction would allow protection of goods and technology that have originated in their own states. Careful followers of U.S. export prosecutions will understand this as the basis of, for example, this indictment of a Dutch national for exporting U.S. aircraft parts from the Netherlands to Iran.

To compound their various misunderstandings of the principle of universal jurisdiction, Rivkin and Casey asserted in the quotation set forth above that “there is very little actual state practice supporting the right of one state to punish the nationals of a second for offenses against the citizens of a third.” This can only be explained by the apparent unfamiliarity the authors have with the basis of jurisdiction asserted by war crime tribunals convened after World War II. The Allied War Tribunals explicitly invoked “universal jurisdiction” given that the prosecuted crimes had not been committed against their own nationals or within their own territories. Israel’s prosecution of Adolf Eichmann also cited the principle of “universal jurisdiction.” In addition, that principle recently served as the basis for U.N. tribunals created to prosecute atrocities committed during the civil wars in Yugoslavia and Rwanda. An excellent discussion (and criticism) of the use of the “universal jurisdiction” principal in these and other war crime cases can be found in E. Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45 Harv. Intl. Law Journal 183 (2004).

The authors’ desire to see the universal jurisdictional principal to prosecute pirates appears to be motivated, at least in part, by their desire to see the U.S. capture and prosecute the new crop of 21st century pirates. The authors criticize the squishy concerns of our European allies for such niceties as due process and regular criminal trials, preferring instead to see the United States set up proto-military tribunals where the pirates can be subjected to some kind of summary procedure and then forced to dance the hempen jig, which is, if you haven’t brushed up on for Talk Like A Pirate Day is “pirate speak” for being hanged.

Aside from some apparent distrust of traditional due process, Rivkin and Casey argue that parties captured by the U.S. military can’t be subject to ordinary criminal trials because “criminals cannot be targeted with military force.” This would come as a surprise to everyone involved in the narcotics prosecution of Manuel Noriega who was captured by the U.S. military and returned to the United States for trial on narcotics charges in U.S. federal courts. Perhaps Rivkin and Casey are referring to the posse comitatus law, 18 U.S.C. § 1385, but that law was only intended to prohibit the military from being used for law enforcement purposes within the United States.

It seems to me that if the United States captures pirates on the high seas, the principal of universal jurisdiction would permit a prosecution for piracy under 18 U.S.C. § 1651. This is not because, as Rivkin and Casey argue, there aren’t other bases for jurisdiction over the pirates available but rather because the exercise of jurisdiction over pirates under the doctrine of universal jurisdiction is widely accepted by nations and scholars even where other bases of jurisdictions by other nations might be available.

However, there is no reason that such charges couldn’t or shouldn’t be prosecuted in federal court with all the protections normally accorded to any other criminal defendants. Frankly, such a prosecution shouldn’t find ordinary due process to be a hindrance to convict an individual, not listed on the crew manifest, who is found on a ship with an RPG launcher or an automatic assault weapon. I think a jury will make that guy walk the plank faster than you can say “Avast, me mateys!”