Posted by Eugene Volokh:
Eugene Kontorovich, Guest-Blogging on Prosecuting Pirates and Terrorists:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239742488
I'm delighted to report that [1]Prof. Eugene Kontorovich (Northwestern
Law School) will be guest-blogging for the next several days about
prosecuting pirates and terrorists. Here's his quick summary of his
plans:
Many of the issues about the legal regime for responding to and
prosecuting pirates that have arisen in the wake of the capture of
a U.S. vessel this week are discussed at length in my forthcoming
scholarly essay entitled [2]�A Guantanamo on the Sea": The
Difficulties of Prosecuting Pirates and Terrorists, to be published
in volume 98 of the California Law Review. I wrote it several
months ago, before the piracy problem had attracted major
attention, but due to the slow production schedules of law reviews,
it won't be published for some time, so I thought it would be
appropriate to share the central ideas informally now. (For
background on the issue, one can consult a short briefing paper I
wrote for the American Society of International Law,
[3]International Legal Responses to Piracy off the Coast of
Somalia.)
The essay explains the legal and practical difficulties to taking
both military and criminal approaches to the piracy problem.
Because pirates are not combatants but rather civilians -� yet
civilians operating in a highly organized armed manner outside the
control of any country -� international law and the criminal
procedure rights of Western countries make any solution
challenging. The Article�s principal contention is that many of the
difficulties in dealing with pirates are exactly the same ones
presented by terrorists and Guantánamo detainees. If anything,
prosecuting pirates should be easier because they have no obvious
political constituency. Thus, the piracy fiasco has cautionary
implications for the idea that terrorists can easily be dealt with
through regular civilian law enforcement mechanisms.
(The difficulties of prosecuting pirates are illustrated in a
recent Ninth Circuit case last year -� the first universal
jurisdiction piracy case decided by America in hundreds of years,
and the subject of a short piece of mine forthcoming in the
American Journal of International Law. The little noticed case also
demonstrates the difficulties involved: The entire crew had to be
detained on material witness warrants, translators found for
everybody, and more.)
I write on public law generally, including constitutional and
public international law. Because of my interest in jurisdiction, I
have been studying piracy since the beginning of my scholarly
career. Piracy is the first and paradigm universal jurisdiction
crime -� one that can be punished by any nation, even without a
nexus to the offense. Given the rise in universal jurisdiction over
human rights offenses, studying how it worked for hundreds of years
in the context of piracy could teach a great deal about modern
universal jurisdiction, as I�ve shown in [4]The Piracy Analogy:
Modern Universal Jurisdiction�s Hollow Foundation and other
articles. I have also followed the current piracy problem closely
since it began in 2005, for an ongoing project empirically
analyzing universal jurisdiction to see how often nations are
willing to exercise it. Unfortunately, this area of knowledge has
become too relevant as of late.
I'm much looking forward to seeing the other Eugene's posts.
References
1. http://www.law.northwestern.edu/faculty/profiles/EugeneKontorovich/
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1371122
3. http://www.asil.org/insights090206.cfm
4. http://www.harvardilj.org/print/28
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