What is a pirate?

May 2013

With the capture of so many Somalis associated with piracy off the coast of the Horn of Africa, many legal conundrums have come up.

One of the more interesting involves the case of Mohammad Saaili Shibin, who served as a ransom negotiator, brokering deals between shipping companies and pirates who were demanding steep ransoms for the return of the company’s human capital.

Shibin was sentenced nearly a year ago to 12 life sentences for his part in hjiacking a German vessel in 2010. The pirate group responsible for this hijacking saw fit to torture their captives in an attempt to extorts a higher ransom. Shibin was also connected to the killing of four Americans in 2010, who were taken captive when their yacht, the Quest, was hijacked by the same pirate action group.

He was captured, along with 20 other pirates, as part of the United States operations in the Indian Ocean to combat the costly threat of piracy. They have been held in Norfolk, Virginia and tried in a federal court.

Prosecutors are seeking the death penalty for the three men who actually shot and killed their hostages aboard the Quest. The other 11 men who actually boarded the ship but did not commit murder have all pleaded guilty and will serve life terms.

The owners of the Quest, Jean and Scott Adam and their friends Bob Riggle and Phyllis Macay, were on a pleasure cruise around the world that went horribly wrong, and ended with them being the first Americans killed as a result of a pirate attack in the Indian Ocean.

Shibin was responsible for helping the group negotiate ransom for the hostages before things went south, and has also been connected to numerous other hijackings. However, his specific role in the operation has left the door open for argument.

Shibin’s attorney is arguing that his client can’t be convicted of piracy because he has never been part of an acute act of piracy himself. In fact, as James O. Broccoletti has told the panel of judges of the 4th U.S. Circuit Court of Appeals, Shibin never even left the country of Somalia.

For a criminal industry that has only been in the mainstream view for less than a decade, there are countless emerging legal questions regarding the laws against piracy, and how to prosecute those that support the criminal networks.

Because the last time the United States had to deal with piracy was centuries ago, many of the established laws against the crime are arcane. For instance, the law that defines piracy, for the moments, only stands as boarding another ship while at sea and committing robbery.

Since pirates have begun to be prosecuted in 2010, that law has seen varying interpretations from sometimes baffled judges. Representatives from the Department of Justice have argued that the United States statute subsumes more general international law and should recognize piracy as an organized crime.

As such, that would mean that the pirate networks that operate on shore in support of the actual hijackings, are just as responsible for the results as those that actually do the marauding. This would mean that Shibin is just as much a pirate as anyone else, given his role in researching and negotiating ransom payments from companies.

United States Attorney Benjamin Hatch has admitted that “it’s very difficult to get them,” but expressed his relief that his office was, in fact, able to get a conviction for Mr. Shibin.

But as Shibin’s lawyers plead their case to three-panel judge on the court of appeals, this case could continue to climb the ladder, eventually winding up in the supreme court.

The lack of clarity of the situation has lead to constant questioning by the judges, who are quick to admit that they have very little previous experiences trying such cases and evaluating arguments concerning piracy.

 It is difficult to predict how the judges will rule, but the case likely has legs, and could easily see a hearing from a higher court. One thing is for sure, as more pirates are rounded up in the coming months and years, countries like the United States will need to hammer out legal precedent to deal with all aspects of their organization.