In an interesting case regarding the definition of
piracy, the U.S. District Court for the eastern District of
Virginia dismissed charges against a number of accused who
approached the USS ASHLAND aboard a small skiff in the Gulf of
Aden. At least one person on the skiff allegedly shot at the
American ship with an AK-47 rifle, resulting in return fire that
killed one of the skiff's passengers. The defendants did not
attempt to board the ASHLAND. They were later arrested and charged
with the crime of "piracy as defined by the law of
nations", in violation of 18 U.S.C. 1651, enacted in 1819. The
Government argued that "piracy as defined by the law of
nations" did not require the actual taking of property, but
included any unauthorized armed assault or directed violent act on
the high seas.
The defendants contended that the offence of "piracy"
had not been committed in this case, as they did not board or take
control of the ASHLAND and did not obtain anything of value from
The Court sided with the defendants. It found that
"piracy", as understood in the law of nations (i.e.
customary international law) in 1819, and as proscribed by 18
U.S.C. 1651, contemplated only sea robbery. It referred to the
seminal case of United States v. Smith, 18 U.S. 153, 5
Wheat. 153 (1820), the definitive judgment on point and was the
only one directly examining the definition in question.
The decision had been repeatedly referred to in subsequent
judgments for over 190 years. Other U.S. legislation, dealing with
"piratical aggression" or "piratical
undertakings", had a wider meaning, embracing acts of violence
other than robbery or forcible depredation, but "piracy"
in 18 U.S.C. 1651 was restricted to robbery or seizure of a ship.
Nor, the court held, did the term "forcible depredation"
include acts of violence unaccompanied by plunder or pillaging, as
the dictionary definition of "depredation" made
Accordingly, the District Court concluded that "... the
Supreme Court in Smith set forth the authoritative definition of
piracy as robbery or forcible depredations on the high seas, i.e.,
sea robbery." Legislative reform proposals and Congressional
legislation since 1820 had reflected that same understanding of 18
U.S.C. 1651. The District Court refused the U.S. Government's
invitation to widen the definition, notwithstanding the more
expansive meaning given to the term "piracy" by the
International Maritime Bureau ,the Geneva Convention on the High
Seas 1958, or in art. 101 of the United Nations Convention on the
Law of the Sea 1982 (UNCLOS) To the District Court, these
definitions were "unsettled", while the Smith
judgment of 1820 was "... the only clear, undisputed precedent
that interprets the statute at issue". There was no
authoritative definition and much debate, and the U.S. had not
ratified UNCLOS. Nor was there a single court having authority to
bring order to the various interpretations and adopt a common
definition. Due process considerations also militated against a
novel construction of 18 U.S.C. 1651.
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