Weeks after the DC Circuit issued its opinion in US v. Ali, finding pirate aiders and abettors who never enter the high seas to be equally guilty of piracy, the 4th Circuit has issued its opinion¬†in US v. Shibin reaching the same result. It held:
[UNCLOS] Article 101 reaches all the piratical conduct, wherever carried out, so long as the acts specified in Article 101(a) are carried out on the high seas.¬†We thus hold that conduct violating Article 101(c) does not have to be carried out on the high seas, but it must incite or intentionally facilitate acts committed against ships, persons, and property on the high seas.
The 4th Circuit relies in part on the DC Circuit opinion in Ali, but it also points to recent UN Security Council resolutions encouraging states to¬†investigate and prosecute those who illicitly finance, plan, organize, or unlawfully profit from pirate attacks off the coast of Somalia. The 4th Circuit panel states that ‚ÄúClearly, those who ‚Äúfinance, plan, organize, or unlawfully profit‚Äù from piracy do not do so on the high seas.‚Äù
Let us take a moment to take a broader view of the policy implications of these legal results. Both Shibin and Ali raise interesting points of law that will need to be resolved before high-level pirates are prosecuted in national courts. But it bears emphasis that there remains a level of the pirate hierarchy that continues to enjoy impunity. The financiers of these operations and their criminal masterminds have not been indicted in any jurisdiction, despite international efforts to trace funds and to bring inciters and facilitators to justice. If the courts in Ali and Shibin had reached the opposite result, it would limit the prosecution of pirate aiders and abettors to the jurisdiction where the facilitator acted. In these cases, that state is Somalia. Despite some recent improvements, it is not clear that Somalia‚Äôs criminal justice system is prepared for complex prosecutions of financial criminals or for criminal masterminds who never set foot on pirate ships. Thus a contrary legal result in these cases would have undermined the¬†transnational system of criminal justice¬†that has been adopted to address Somali piracy.