High Seas Piracy in violation of UNCLOS Article 101.
The USS Nicholas was on a counter-piracy mission in the Indian Ocean when, lit to disguise itself as a merchant vessel, it encountered the defendants shortly after midnight on April 1, 2010. The Nicholas was approached by an attack skiff operated by defendant Mr Hasan and also carrying defendants Mr Dire and Mr Ali, while defendants Mr Umar and Mr Gurewardher remained with a larger mother-ship some distance away. From their posts on the Nicholas, crew members could see by way of night-vision devices that Mr Hasan was armed with a loaded rocket-propelled grenade launcher (commonly referred to as an "RPG"), and that Mr Dire and Mr Ali carried AK-47 assault rifles.
The captain of the USS Nicholas, Commander Mark Kesselring, directed his gunners to man their stations and prepare to fire, and ordered his unarmed personnel inside the skin of the ship for safety. When the defendants' attack skiff was within sixty feet of the Nicholas's fantail (its lowest and thus most accessible point), Mr Dire and Mr Ali discharged the first shots—bursts of rapid, automatic fire from their AK-47s aimed at the Nicholas and meant to attain its surrender. The Nicholas's crew responded in kind, resulting in an exchange of fire that lasted less than thirty seconds. Bullets from Mr Dire and Mr Ali's AK-47s struck the Nicholas near two of its crew members, but the defendants' brief attack was (thankfully) casualty-free. Mr Dire, Mr Ali, and Mr Hasan then turned their skiff and fled, with the Nicholas in pursuit.
During the chase, sailors on the USS Nicholas observed a flashing light on the horizon — a beacon from Mr Umar and Mr Gurewardher to lead the attack skiff back to the mothership. Commander Kesselring, however, managed to keep the Nicholas between the defendants' two vessels to thwart the attempted reunion. Meanwhile, Mr Dire, Mr Ali, and Mr Hasan threw various items from the skiff overboard into the Indian Ocean, discarding the RPG, the AK-47s, and a ladder that would have enabled them to board the Nicholas. About thirty minutes into the pursuit, the Nicholas captured the three defendants in the skiff. Thereafter, the Nicholas chased and captured the two defendants in the mothership. A suspected second attack skiff, which had appeared on radar but did not close on the Nicholas, was never found.
The defendants' strike on the USS Nicholas was consistent with an accustomed pattern of Somali pirate attacks, designed to seize a merchant ship and then return with the vessel and its crew to Somalia, where a ransom would be negotiated and secured. Indeed, on April 4, 2010, during questioning aboard the Nicholas, the defendants separately confessed to participating willingly in a scheme to hijack a merchant vessel, and they provided details about their operation.
United States District Court, E.D. Virginia, Norfolk Division.
This matter addressed the defendants’ motion to dismiss the charge of piracy under 18 USC §1651 on the basis that their conduct did not fit the requirements of the offence set out in US v Smith and affirmed in US v Said. The court dismissed the appeal stating that wording of 18 USC §1651 implied that the definition of piracy was to one that developed with the international law rather than a based on the international law at the time it was passed, making UNCLOS article 101 the correct definition to be applied in US courts.
The motion to dismiss was denied.
United States Court of Appeals for the Fourth Circuit.
The Court of Appeals confirmed that the interpretation of 18 USC §1651 used in the trial (namely UNCLOS Article 101) was the correct one and that US v Smith was no longer the applicable precedent to be followed in US criminal courts for piracy.
Appeal was denied and the convictions of the defendants were confirmed.
With the definition of the charges of piracy (18 U.S.C. § 1651) confirmed to be identical to Article 101 of UNCLOS the evidence support findings of guilt on all charges.
Count One Piracy as defined by the law of nations (18 U.S.C. § 1651);
Count Two Attack to plunder a vessel (18 U.S.C. § 1659);
Count Three Act of violence against persons on a vessel (18 U.S.C. §§ 2291(a)(6) and 2290(a)(2));
Count Four Conspiracy to perform an act of violence against persons on a vessel (18 U.S.C. §§ 2291(a)(9) and 2290(a)(2));
Counts Five and Six Assault with a dangerous weapon within a special maritime jurisdiction (18 U.S.C. § 113(a)(3));
Counts Seven and Eight Assault with a dangerous weapon on federal officers and employees (18 U.S.C. § 111(a)(1) and (b));
Count Nine Conspiracy involving a firearm and a crime of violence (18 U.S.C. § 924(o));
Counts Ten and Eleven Using, carrying, and possessing a firearm in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii));
Count Twelve Using, carrying, and possessing a destructive device in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii));
Count Thirteen Carrying an explosive during the commission of a felony (18 U.S.C. § 844(h)(2)); and
Count Fourteen Conspiracy to carry an explosive during the commission of a felony (18 U.S.C. § 844(m)).
The charges, findings, sentencing, and legal reasoning for all defendants was identical.
United States Court of Appeals for the Fourth Circuit
This case is significant because it represents in the US court system the overturning of the precedent set in 1820 in the case of US V Smith. It establishes a criminal definition of piracy that is consistent with international law and consistent with the majority of global state practice.