The defendant was a Somali national who helped negotiate the ransom of a merchant vessel and its crew after they were captured by pirates in the Gulf of Aden. Although the defendant claimed that he was merely trying to defuse a tense situation, the US government believed that he was working together with the pirates from the outset. The defendant was arrested and charged for conspiring to commit and aiding and abetting two offences: piracy on the high seas and hostage taking. The defendant filed a motion to dismiss the charges. The District Court restricted the charge of aiding and abetting piracy to the defendant’s conduct on the high seas and dismissed the charge of conspiracy to commit piracy (see CMI467). The government appealed.

On appeal, the defendant argued that in order to be convicted, any acts of aiding and abetting he committed must themselves have occurred on the high seas. The defendant contended that art 86 of the United Nations Convention on the Law of the Sea 1982 (UNCLOS) imposed a strict 'high seas' requirement on all provisions in Part VII of UNCLOS, which includes art 101.c. In addition, the defendant contended that even if facilitative acts count as piracy, a nation's universal jurisdiction over piracy offences is limited to high seas conduct. In support of this contention, the defendant invoked art 105 of UNCLOS, which provides: 'On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft … '. Thus, the defendant argued that the preface of art 105 is to govern the actual enforcement of anti-piracy law and to restrict universal jurisdiction to the high seas even if the definition of piracy is more expansive. Finally, the defendant argued that the origin of art 101 of UNCLOS is art 15 of Geneva Convention on the High Seas 1958, the drafting history of which favoured his argument.

Held: The District Court's decision to limit the aiding and abetting piracy charge was reversed and its dismissal of the charge of conspiracy to commit piracy was affirmed.

The court disagrees with the defendant’s interpretation of arts 86, 101 and 105 of UNCLOS. With respect to art 86, it serves as an introduction to Part VII, which is titled 'High Seas', and not as a limit on jurisdictional scope. With respect to art 101, the explicit geographical limits, ie 'on the high seas' and 'outside the jurisdiction of any state', govern piratical acts under art 101.a.i and ii, not acts under art 101.c. The language of art 101.c suggests that a facilitative act need not occur on the high seas, provided its predicate offence has so occurred. With respect to art 105, it does not indicate that international law limits the liability of aiders and abettors to their conduct on the high seas. Rather than curtailing the categories of persons who may be prosecuted as pirates, the reference to the high seas under art 105 of UNCLOS highlights the broad authority of nations to apprehend pirates even in international waters.

In addition, the court disagrees with the defendant's legislative history argument. International law permits prosecuting acts of aiding and abetting piracy committed while not on the high seas. The District Court's decision to limit the aiding and abetting piracy charge was thus reversed.

By including facilitative acts within art 101's definition of piracy, UNCLOS endorses aider and abettor liability for pirates. However, unlike facilitative acts, with respect to the defendant’s charge of conspiracy to commit piracy, the plain language of UNCLOS does not include conspiracy to commit piracy. The prosecution of the defendant for conspiracy to commit piracy was therefore inconsistent with international law. The District Court's decision to dismiss the charge of conspiracy to commit piracy was affirmed.