The World in U.S. Courts: Fall 2013 - Criminal Law | July.12.2013
Shibin was convicted of 15 counts relating to his participation in two piracies. The first involved the seizure of a German merchant ship by Somali pirates who took the ship to Somali waters where Shibin boarded the ship, conducted the ransom negotiations, and participated in the torture of the ship’s crew. The second incident involved an American sailing ship where, again, Shibin acted as the Somali pirates’ negotiator, although he did not board the seized ship. Shibin was convicted of, among other things, aiding and abetting piracy, and was sentenced to two consecutive life sentences.
Shibin appealed his conviction, arguing that he could not be prosecuted as an aider and abettor of either of the piracies, as he did not commit any acts on the high seas, where, by definition, piracy occurs.
The international definition of piracy is taken from Article 101(a) of the United Nations Convention on the Law of the Sea (“UNCLOS”), which provides that piracy consists of illegal acts of, among others, violence or detention that take place on the high seas, as opposed to territorial waters, which are defined generally as the waters within 12 nautical miles of a nation’s coast. Article 101(c) also includes within the definition of piracy “any act of inciting or of intentionally facilitating an act described in [Article 101(a)].”
The court of appeals concluded that, as opposed to Article 101(a), Article 101(c) does not limit the facilitating acts to conduct on the high seas, nor is there any conceptual reason to require such a limit. In coming to this conclusion, the court examined other types of aiding and abetting cases, noting that where the driver of a getaway car is charged with aiding and abetting bank robbery, there is no requirement that that person be inside the bank at any time.
The district court’s jurisdiction over these piracy crimes arose from “universal jurisdiction,” an international law doctrine that allows any nation “jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as a universal concern.” The defendant did not dispute that piracy is subject to universal jurisdiction, although he did make that objection with respect to the non-piracy counts with which he was charged. The court again affirmed the district court’s finding that the particular U.S. statutes invoked expressly criminalized extraterritorial conduct.