RICHMOND, Va. — A federal appeals court ruled Wednesday on the legal definition of piracy, saying an armed attack on a U.S. vessel can be considered piracy even if no one ever boards or robs the ship.
The 200-year-old U.S. Supreme Court definition of piracy has been in dispute in two attacks on Virginia-based Navy ships in April 2010 in waters off East Africa. The defendants were prosecuted in Norfolk, the first in a series of government prosecutions aimed at slowing the spread of piracy off Africa.
The 4th U.S. Circuit Court of Appeals’ ruling gives prosecutors wider latitude to go after people who attack U.S. vessels, U.S. Attorney Neil MacBride said.
“For decades, the international community has considered violent attacks on the high seas as an act of piracy, and today’s ruling will strengthen our ability to hold those who attack U.S. vessels by force accountable, regardless of whether they are successful or not,” said MacBride, whose office handled both cases.
In one case, a lower court judge dismissed charges against five Somalis in an attack on the USS Ashland, ruling since the men had not taken control or robbed the ship their actions did not rise to the definition of piracy.
In the other case, prosecutors convicted five Somali men who attacked the USS Nicholas. It was the first piracy conviction in a U.S. courtroom since 1819.
Wednesday’s decision by the three-judge panel upheld those convictions and the life sentences the men received.
It was not immediately clear whether the Somalis in the USS Ashland attack would again be charged, or whether attorneys would appeal the court’s ruling on the piracy definition to the U.S. Supreme Court.
Attorneys for the Nicholas defendants said they would discuss the ruling among and decide whether to pursue a hearing before the full 4th Circuit or take the case to the Supreme Court.
“Our arguments very simple: you have to steal the boat,” said attorney David W. Bouchard. “That’s piracy and it has been for 200 years.”
Lawyer Jon M. Babineau said the ruling “upset a couple hundred years of what I believe is precedent. Now it turns out our law in the United States is being viewed by some international standard, which is ever changing.”
The attacks came as pirates increased assaults in the waters off East Africa despite an international flotilla of warships dedicated to protecting vessels and stopping the pirate assaults.
The Nicholas, which was part of the flotilla, was mistaken for a merchant ship because the Navy used a lighting array to disguise the 453-foot warship and attract pirates. Three pirates in a skiff fired rocket-propelled grenades and raked the ship with AK-47 fire in the Indian Ocean north of the Seychelles Islands. No sailors were injured in the attack.
During arguments before the federal appeals panel, an attorney representing one of the Somalis said the government was using “amorphous” interpretations of international law to make the piracy count stick. Attorney James R. Theuer argued the U.S. Supreme Court has been clear that the key element of piracy was “robbery at sea.”
They also argued the men were innocent fishermen who had been abducted by pirates and forced to fire their weapons at the ship.
The court wrote that piracy under international law has evolved for decades to encompass other violent conduct.
The expanded definition “has only been reaffirmed in recent years as nations around the world have banded together to combat the escalating scourge of piracy,” wrote Judge John King.
In the attack on the Ashland, a 610-foot dock landing ship, the ship’s 25mm cannons destroyed a skiff, killing one Somali man and injuring several others.