The decision of a federal court in U.S. v. Hasan turned to the work of Professor James Gathii - citing him in the decision more than 10 times - to understand the current state of international interpretation of piracy under the law of nations.
The case involved a U.S. naval vessel, deployed to protect shipping lanes off the coast of Somalia, that was fired upon by pirates, who mistook the naval ship for a merchant ship. As three of the pirates approached the ship in assault boats and opened fire, they discovered that the merchant ship was the U.S.S. Nicholas. The pirates were captured, along with two others on board their main vessel. They were charged with "piracy as defined by the law of nations." Defendants argue that the crime for which they are charged requires robbery, which they did not commit. Therefore, they moved to have the case dismissed.
The court cited Professor Gathii's 2009 article "Jurisdiction to Prosecute Non-National Pirates Captured By Third States Under Kenyan and International Law," printed in the Loyola International and Comparative Law Review, and "Agora: Piracy Prosecution. Kenya's Piracy Prosecutions ," which was published this year in the American Journal of International Law. These articles analyzed Kenyan piracy cases, the most active country in piracy prosecutions, where the 1982 United Nations Convention on the Law of the Sea (UNCLOS) is applied to piracy prosecutions. The court determined that the most current interpretation of piracy was stated in the UNCLOS and the definition of piracy was sufficiently broad to include acts that did not involve robbery.
Applying the UNCLOS, the Eastern District of Virginia denied defendant's motion to dismiss.
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