The Journal of The DuPage County Bar Association

Back Issues > Vol. 30 (2017-18)

Piracy & Punishment - An Appreciation of Hugo Grotius
By Edward N. Tiesenga and Ryan Haught

Facts of the Case. On April 8, 2009, a young Somali named Abduwali Abdukhadir Muse boarded the U.S.-flagged cargo ship Maersk Alabama in the Indian Ocean, in a bid to ransom Captain Richard Phillips and his crew in exchange for millions of dollars. What played out next established Muse’s place in the dashing legacy of the Buccaneers who fought, stole, and killed their way across the seas: Long John Silver; Blackbeard; Captain Kidd.1 Muse entered history as a “Pirate.”2 This was Muse’s third capture of a Western freighter, his own personal contribution to “the eruption of piracy in the Gulf of Aden that began in 2008.”3

The basic fact pattern of Muse’s pirate raid on the Maersk Alabama was repeated 3,313 times in the 10-year period from 1998-2007, before “spiking”4 into an “upsurge off of the coast of Somalia that began in 2008 [that] is unprecedented in modern times.”5 Muse achieved fame not because he was anything special among the crime families of Somalia, but simply as a result of Tom Hanks Hollywood-izing his exploits.

Captain Phillips flew from his home in New Hampshire to the Port of Oman to pilot the Alabama’s delivery of 200 tons of U.S. government food aid and 160 tons of fresh water to the Port of Mombasa, Kenya. Captain Muse pushed off from the beachside town of Eyl in the failed state of Somalia, to travel 300 miles out into the shipping lanes of the Indian Ocean, where he and his small crew brandished their weapons and shot their way onto the Alabama. Muse was working with a pirate syndicate supplying the attack boats, tender ships and central communication command and control facilities to track their targets on the high seas; following which the syndicate laundered the resulting ransoms, recovered their fixed and variable costs, and paid a cut back to the pirates.6 Muse held Phillips and his crew hostage, and started settlement negotiations.

A few days later, as portrayed in the movie Captain Phillips, after convincing Captain Muse to come aboard the USS Bainbridge to personally broker the ransom deal, a team of Navy SEAL7 sharpshooters killed the rest of Muse’s crew with simultaneous headshots, saving Captain Phillips.

In the first U.S. piracy prosecution in 100 years, the United States Attorney for the Southern District of New York filed an indictment against Muse,8 charging him with ten counts of piracy. Muse pled guilty, and now lives in a medium security Federal Correctional Institution in Terre Haute, Indiana,9 operated by the Federal Bureau of Prisons, a division of the United States Department of Justice, serving out his 33-year sentence.10

Ideological Angle to the Pirate Story: Pick Your Theorist. In the movie version of the story, Muse assures Captain Phillips that piracy is nothing personal, but is “just business” and is something of a necessity, since “your companies took all our fish.” Muse thus sets up the classic argument posed by radical anti-colonialist theorist Franz Fanon, that the “wretched of the Earth” have no choice but to use violence against their oppressors. In Fanon’s thinking,11 Somali pirate violence is justified as a necessity to even the score against foreign oppressors like Captain Phillips and his well-paid, unionized crew of American seafarers trying to deliver free food and water to poor Africans. Fanon states: Moral reparation for national independence does not fool us and it doesn’t feed us. The wealth of the imperialist nations is also our wealth. At a universal level, such a statement in no way means we feel implicated in the technical feats or artistic creations of the West. In concrete terms Europe has been bloated out of all proportions by the gold and raw materials from such colonial countries as Latin America, China, and Africa. . .The ports of Holland, the docks in Bordeaux and Liverpool owe their importance to the trade and deportation of millions of slaves. And when we hear the head of a European nation declare with hand on heart that he must come to the aid of the unfortunate peoples of the underdeveloped world, we do not tremble with gratitude. On the contrary, we say among ourselves, “it is a just reparation we are getting.” So we will not accept aid for the underdeveloped countries as “charity.” Such aid must be considered the final stage of a dual consciousness – the consciousness of the colonized that it is their due and the consciousness of the capitalist powers that effectively they must pay up.”12

Consequently, says Fanon, piratical violence is not an offense against any Law of Nations, but is the way out of bondage to dominant, self-regarding Europeans:

Violence alone, perpetrated by the people, violence organized and guided by the leadership, provides the key for the masses to decipher social reality. Without this struggle, without this praxis there is nothing but a carnival parade and a lot of hot air. All that is left is a slight readaptation, a few reforms at the top, a flag, and down at the bottom a shapeless, writhing mass, still mired in the Dark Ages.13

Although Fanon adopted the prophetic voice of violent cathartic deliverance from poverty, there is no indication that Captain Muse ever read anything written by Fanon, or even knew his name. However, someone else who would play a decisive role in the drama of the Maersk Alabama knew all about Fanon: the Commander in Chief of the United States.

Presidents Are Also Students of Theory. Barack Obama was uniquely qualified by his life experience and racial inheritance to consider these two opposing perspectives – whether to punish or condone piracy. In his college memoirs, Obama recounts long nights in the Columbia dorms where, “to avoid being mistaken for a sellout, I chose my friends carefully.”14 In a recollection freighted with identity politics, he described drawing closer to people he considered to be emblematic outsiders, alienated from mainline American society:

The more politically active black students. The foreign students. The Chicanos. The Marxist professors and structural feminists and punk-rock performance poets. We smoked cigarettes and wore leather jackets. At night, in the dorms, we discussed neocolonialism, Franz Fanon, Eurocentrism, and patriarchy.15

In these formative years, young Barack Obama sought to understand marginalized people, particularly since his own grandfather’s violent resistance to British colonial rule in Kenya formed part of his own contemporary identity.16 Obama’s Kansas-born mother also contributed her adopted rage at the legacy of Dutch colonial oppression and resource extraction throughout Indonesia to young Barack’s worldview.17

Competing Root Cause Paradigms. If anyone could have interpreted the root causes of Somali piracy with sensitivity for the enduring legacy of European oppression of colonialized peoples, and found a way to overlook the individual moral culpability of four bedraggled local pirates, that person was Barack Obama. And yet, as President of the United States, Obama confirmed the order to gun down Captain Muse’s teenaged Somali crew, and President Obama’s Justice Department prosecuted Muse for piracy using legal doctrines first articulated 400 years ago by Hugo Grotius,18 the Dutch lawyer who wrote The Free Sea19 to justify the Dutch colonial push into Asia. When it came time to resolve the Maersk Alabama piracy case, Obama reached for established law, unchallenged by the rigorous critique promoted by his college professors. Who was this Dutchman, and how did his legal work become the basis for international law promoting free trade and condemning piracy? How did Grotius overrule Fanon?

Grotius Defeats Fanon. The Dutch were once wretched and oppressed, too. In the time of Grotius (1583-1645) the young, resource-starved Dutch Republic was desperately seeking to compete in the maritime Far East trade dominated by the Portuguese, who simply boarded and captured, or blasted to smithereens, any seaborne competitors for the riches of the East.20 The “low countries” of Europe had been drained of their wealth by the brutal colonial occupation of Spain, whose hereditary rulers dominated what is now Belgium and the Netherlands. After freeing themselves from the hated Spanish, the rude “[f]ishermen and river raftsmen became ocean adventurers and merchant princes”21 by venturing out on the high seas to find higher value trade across the sea to Asia. These ventures were financed and governed by networks of merchant guilds which became the Dutch East India Company, which operated the ships and included a kind of private navy chartered by the Estates General, the ruling arm of the Dutch Republic.

The Dutch Republic versus Portugal. By this time, the Portuguese and Spanish had dominated the African and Eastern maritime trade for two hundred years, along the way concocting the idea that it was their permanent divine right to do so, free of any competitors. This duopoly over new lands and transit of the seas required to reach them was confirmed by various treaties and even papal bulls between 1479 and 1506.22 The Protestants in charge of the Dutch East India Company did not recognize the Pope’s brokerage of foreign maritime trade in exclusive favor of two Catholic powers, and protested Portuguese23 attacks on Dutch ships and cargoes. The Dutch retained legal counsel to make their case. They hired Hugo Grotius.

Grotius writes his brief. Grotius delivered “his masterwork, Mare Liberum, or in its full English title, The Freedom of the Seas or the Right Which Belongs to the Dutch to Take Part in the East Indian Trade.24 In his argument, Grotius asserts freedom of trade as the “principle of international law [that] it has been of the international order ever since.”25

From this fundamental principle, it follows that no state has the right to prevent nationals of another state from using sea-lanes for the pursuit of trade. If trade was free, then the seas on which they traded were also free.26

If international law was violated by states interfering with free trade on the high seas, what about the actions of non-state pirates? In that case, said Grotius:

All peoples or their princes in common can punish pirates and others, who commit delicts27 on the sea against the law of nations. For even supposing a land that has been occupied by no people, there will be the same right against brigands lurking there.28

In his other work, On the Law of War and Peace,29 Grotius acknowledges that although from the earliest known times, “piracy was attended with a degree of glory,”30 natural justice sanctions unhesitating war “upon pirates, general robbers, and enemies of the human race [insofar as such persons] have renounced the ties and law of nature.”31 These core statements from Grotius became elements of the Law of Nations later incorporated into the United States Constitution’s charter of authority to Congress in Article I, Section 832, providing that:

Congress shall have the power to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.

The United States goes with Grotius. From this source of authority, in 1948 Congress enacted 18 U.S.C. Section 1651, including an integration clause incorporating the Law of Nations,33 and first used 61 years later to indict Muse.

If any prosecutor could have found a way to legally excuse the conduct of Muse from punishment by the U.S. judicial system, it would have to be Preet Bharara – born in post-colonial India at a time when most of the population could not feed itself, in an economy still struggling to recover from the resource extraction and rapacity imposed by the minority British rulers who had left only 20 years earlier.34 Aren’t we to expect identity politics to instill sympathy in such a person to instinctively take the side of the poor, uneducated, downtrodden criminal defendant? Instead, Bharara aggressively prosecuted Muse, just as he prosecuted New York mafia crime families.

Bharara’s use of the Law of Nations formulated 400 years ago in Europe fully overcomes the attack by academics who charge that it “fails to proclaim its identity and its claims to legitimacy,” in our modern world where such old things “no longer ha[ve] either a history, or a moral justification.”35 One can even say that Bharara “consecrate[d] it by the very act of putting it on trial” against Muse.36

Muse was on his own to justify his actions before the New York court, and he couldn’t do it. Ever the negotiator, he took a plea. Muse’s sea-borne feat of larceny ran aground against the roots of international law. He learned the hard way how the world really works, and how law undergirds the flourishing trade conducted on the high seas. Barack Obama imposed an even harsher lesson on his three friends who were shot down on those same high seas, for their crimes against the Law of Nations, which is also the law of the United States.

The Navies of the Earth Retaliate. For as long as “[s]hips have . . . been, and for the foreseeable future will be, the most efficient method of long-distance transport,” 37 there will be pirates preying upon them. “Today, about 80 percent of world commerce travels by ship . . . ”38 Half of this commercial tonnage is petroleum, and half of that traverses sea lanes off Somalia.39 These facts give rise to “[t]he necessity of a navy” to maintain “peaceful shipping.”40 These statistics explain the international response triggered by resurgent Somali piracy.

This spike in pirate activity that captured Captain Phillips was eventually throttled down and put under firm control by an international naval coalition including the U.S., India, U.K., China,41 and Pakistan, aggressively patrolling the Indian Ocean.42 Multiple counter-piracy initiatives included NATO Operation Ocean Shield,43 Operation Atlanta (a European Union naval force), African Union Mission on Somalia (AMISOM), and Combined Maritime Task Force 151.44 Rules of engagement (ROE) for this international enforcement were based, inter alia, on the U.N. Convention on the Law of the Sea (UNCLOS), the Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation Article 8, and the Geneva Convention.45 The maritime task forces in and around the Gulf of Aden were required to conduct operations under thorough and extensive ROEs, which were coordinated with national law enforcement agencies to provide directives to military units regarding parameters of the use of force during operations. The military forces involved in operations within that region were authorized to board vessels, arrest and detain persons suspected of taking part in piracy, use force to stop a pirate vessel or intervene in a hijacking, and use lethal force when necessary to protect life.

The Dutch Navy participated alongside their old foes Spain and Portugal in some of these operations, and the Netherlands specifically contributed the use of Cougar helicopters, drones, a submarine and an amphibious transport ship named Rotterdam.

Opening a copy of the UNCLOS is like looking into the study of Hugo Grotius, where we find the “Right of innocent passage,” 46 along with “Freedom of the high seas,”47 and the “Duty to cooperate in the repression of piracy.”48 Enforcement of these 400 year old legal doctrines of Grotius has worked to reduce the $18 billion cost that the pirates had imposed on world trade, down to a manageable and negligible amount.49 These tangible benefits continue to accrue and compound for the benefit of the civilized world, to the detriment of pirates everywhere.50

The Rule of Law and the Law of Nations. As Prime Minister David Cameron noted in his remarks at Runneymede to commemorate the 800th anniversary of Magna Carta, “All over the world, people are still struggling to live by the rule of law and to see their governments subject to that law. The countries that have these things tend to be the long term successes. Those who don’t tend to be the long term failures.” 51 Continued understanding and application of the Law of Nations to the oceans will insure the success of those nations dedicated to freedom of the seas, and will continue to be a root cause of the interdiction and elimination of piracy. This is a refreshing message, at a time in history when themes of ethnicity and inclusion are sometimes used to attack the universal application of any rules or legal concepts.

What started as a legal apologia for free trade on the high seas for one set of Europeans to use against other Europeans in their contest for the extension of economic and resulting political power across the globe, is now being used by non-
European navies against non-European pirates who threaten all civilized nations in their quest for booty. The work of Grotius has transcended ethnic identity and historical circumstance to become a universal doctrine of international law, enforceable at any time, in any place, by any civilized power.52 The cultural portability and appropriation of Grotius supports the same policy continuity on the high seas for centuries to come.

Pieces of Eight. Meanwhile, Muse’s mother blames the U.S. for unfairly arresting her son, and demands a Presidential pardon for him.53 The mother-in-law of one of the other slain pirates has also demanded compensation – or perhaps we can say ransom – for the killing of her daughter’s husband.54 She says the actions of the Navy SEALs entitle her to be paid. This reflexive demand for money calls to mind Captain Flint’s recursive cry in the most famous pirate story ever told: “Pieces of Eight! Pieces of Eight!”55

1. Muse is now among the list of notable pirates going back to 315 B.C.: https://en.wikipedia.org/wiki/List_of_pirates.
2. 1300 years earlier to the North, he might be a “Viking,” the old Norse word for “pirate raid.” See http://www.bl.uk/learning/langlit/changlang/activities/lang/vikings/vikinglang.html.
3. Eugene Kontorovich and Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy, Northwestern University School of Law Public  aw and Legal Theory Series, No. 09-26, Law and Economics Series No. 09-45 at 1.
4. Id. at 8.
5. Id.
6. According to Donna Hopkins at the U.S. State Department, quoted in BBC News (Feb. 16, 2011): “’It is organized crime and we need to treat it like that’ . . . not as an amateur operation ‘but rather a seriously networked international enterprise’ . . . [in which] only 15% went to the pirates themselves, with the rest going to a transnational criminal network, not all of whom were Somalis.’”
7. United States Navy Sea, Air, and Land teams.
8. United States of America v. Abduwali Abdukhadir Muse, S1 09 Cr. 512 (LAP), containing Count one for seizure and robbery of a United States-flagged ship, citing 18 U.S.C. §1651, which provides: “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life,” followed by nine more counts. 9. Terra Haute is classed as a medium security prison.
10. Muse, prisoner I.D. No. 70636-054, is scheduled for release on October 31, 2038. Muse’s status may be tracked by his I.D. number on this website: https://www.bop.gov/inmateloc/.
11. See Franz Fanon, The Wretched of the Earth (1961), and his posthumously published work, Neocolonialism (1964), in which “Fanon indicts colonialism and its post-colonial legacies, for which violence is a means of catharsis and liberation from being a colonial subject.” (Wikipedia, https://en.wikipedia.org/wiki/The_Wretched_of_the_Earth).
12. Fanon, The Wretched of the Earth (Kindle Locations 1231-1239). Kindle Edition (emphasis in original).
13. Id. at 1653-1655.
14. Barack Obama, Dreams from My Father: A Story of Race and Inheritance, Kindle Edition at 100-101.
15. Id.
16. According to Barack Obama, his paternal grandfather was locked up in a detention camp by the British for his association with the violent pre-independence Mau Mau rebellion. See Obama, supra fn. 14 at 417-18
17. The Dutch formerly ruled Indonesia as colonial masters of the Shell Oil empire, for which Obama’s step-father Lolo Soetoro worked during the years young Barack attended school in Jakarta. See Obama, supra fn. 14 at 45-47.
18. These elements are included above in footnote 8.
19. Hugo Grotius, The Free Sea Or a Disputation Concerning the Right Which the Hollanders Ought to Have to the Indian Merchandise for Trading (1609).
20. At that time, the high-value articles of trade included Chinese ceramics, Indonesian spices, and precious metals.
21. John Lothrop Motley, The Rise of the Dutch Republic — Complete (1555-66) (Kindle Location 506). Pu.blic Domain Books. Kindle Edition.
22. See https://en.wikipedia.org/wiki/Treaty_of_Tordesillas.
23. Since the Pope gave the East to Portugal and most of the “new world” of the Americas to the Spanish, Portugal at this time controlled areas in Africa; “several bases or territories as Muscat, Ormus and Bahrein in the Persian Gulf, Goa, Bombay and Daman and Diu (among other coastal cities) in India; Ceylon, and Malacca, bases in present-day Indonesia as Makassar, Solor and Ambon, Portuguese Timor, the entrepôt-base of Macau and the entrepôt-enclave of Dejima (Nagasaki) in the Far East.” Id.
24. Timothy Brook, Vermeer’s Hat: The Seventeenth Century and the Dawn of the Global World (2008) at 67.
25. Id. at 68. The actual Grotius assertion is: “We will lay this certain rule of the law of nations . . . the foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any other and to trade with it.” Grotius, The Free Sea, Ch. 1 http://oll.libertyfund.org/titles/grotius-thefree-sea-hakluyt-trans.
26. Brook, Vermeer’s Hat, fn. 24 at 68.
27. A “delict” is “a violation of the law” and is from the Latin past participle of “to be at fault, offend.” https://en.wikipedia.org/wiki/Delict.
28. Grotius, The Free Sea (Kindle Locations 2092-2093). Evergreen Review, Inc. Kindle Edition.
29. Original title in Latin: De jure belli ac pacis (1631).
30. Hugo Grotius, On the Law of War and Peace (p. 126). Library of Alexandria. Kindle Edition.
31. Id. at 192.
32. Grotius was the first to articulate what became the Law of Nations in terms of rational neutral principles, further elaborated upon by subsequent scholars and practitioners, including Pufendorf, Burlamaqui, and Vattel. When the framers of the U.S. Constitution met in Philadelphia, they consulted the derivative work of Vattel, whose 567 page reference work The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758) cites Grotius seventy (70) times for core principles further elaborated and applied by Vattel to increase the scope of these seminal concepts inherited from Grotius. The provenance of the language of Article I, Section 8 of our U.S. Constitution tracing back to Grotius is its own scholarly sub-topic. See, Edwin D. Dickinson, The Law of Nations as Part of the National Law of the United States, Univ. Pa. L. Rev. (Vol. 101) (1952).
33. The text of 18 U.S.C. §1651 is included above in footnote 8.
34. U.S. Attorney Preetinder Singh Bharara was born in Firzpur, Punjab, India, immigrating to the U.S. at age two with his parents, and attended Harvard College and Columbia Law School, before Barack Obama appointed him as U.S. Attorney for the Southern District of New York. See https://en.wikipedia.org/wiki/Preet_Bharara.
35. Bernard-Henri Lévy, Barbarism with a Human Face, at 72-73 (Harper & Row, New York 1980).
36. Id.
37. William J. Bernstein, A Splendid Exchange: How Trade Shaped the World (2008) at 367.
38. Id. at 368.
39. Id.
40. A.T. Mahan, The Influence of Sea Power Upon History, 1660-1783 (1890), Barnes and Noble 2004 Edition at 27.
41. The evolution of Chairman Mao’s Communist China from a former champion of Fanon’s third world revolutionaries into a modern sea power battling Somali pirates is a topic worthy of some study and reflection.
42. Additional countries participating: Denmark, Columbia, New Zealand, Italy, Australia, Norway, Greece, Ukraine, Canada, South Korea, Japan, Russia, Turkey and Germany
43. See generally, https://en.wikipedia.org/wiki/Operation_Ocean_Shield?oldid=779180332.
44. Laurie R. Blank, Rules of Engagement and Legal Frameworks for Multinational Counter-Piracy Operations, Case Western Reserve J. of Int’l Law (Vol. 46, 2013) 397 at 398.
45. For a full list, see Blank, cited above in footnote 44.
46. UNCLOS Art. 17.
47. UNCLOS Art. 87.
48. UNCLOS Art. 100.
49. See Greenberg, Hirt and Smit, The global forces inspiring a new narrative of progress, McKinsey Quarterly (April 2017) at 16, exhibit 7, using time-series graphic overlays to show shipping traffic patterns from 2010 to 2014, shifting back toward the much shorter shoreline-route made safe by Operation Ocean Shield, which “saved the world economy approximately $18 billion a year” in time, fuel economies, ransom losses, and insurance  costs.
50. In the end, Somali piracy becomes a “self-baffled enterprise,” a “quest . . . for an impossible object” so long as the civilized world enforces the Law of Nations. Harold Bloom, The Anxiety of Influence (1973) at 10.
51. The full text of Cameron’s remarks is online at https://www.gov.uk/government/speeches/magna-carta-800th-anniversary-pms-speech.
52. Returning us to the realm of enduring principles, across “[v]ast spaces of nature, the Atlantic Ocean, the South Sea; vast intervals of time, years, centuries, . . . Nothing can bring you peace but the triumph of principles.” Ralph Waldo Emerson, Self-Reliance, Essays: First Years (1841).
53. Abdiqani Hassan, Somali pirate families ask for U.S. pardon, recompense, Reuters (April 22, 2009).
54. Id., quoting Mulaho Mohamud: “Killing our sons was not the right decision. The U.S. has to pay the price for what they have done to us.”
55. Robert Louis Stevenson, Treasure Island (Mobile) (Enriched Classics) (Kindle Location 2561). Mobile Reference Kindle Edition. Long John Silver’s loquacious parrot “Captain Flint” was named after another famous pirate.

Ryan Haught (B.S., Economics, U.S. Naval Academy, 2007) is a retired Navy Lieutenant commissioned upon graduation from the Academy as a Surface Warfare Officer. During Ryan’s six and a half years on active duty service, he earned the Navy and Marine Corps Achievement Medal for his leadership in capturing 16 suspected pirates off the Horn of Africa. Ryan’s personal decorations include the Joint Service Commendation Medal, Navy Commendation Medal and Navy Achievement Medal. He is now a Senior Project Manager for a global financial services firm.

Edward N. Tiesenga (B.A. cum laude, Hope College, 1981; J.D. American University, 1984), practices commercial law with Tiesenga Reinsma & DeBoer LLP in Oak Brook, Illinois.

 
 
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