LAW NOVEMBER 30, 2013
When the Russian commandos began rappelling from helicopters onto the Arctic Sunrise, Captain Peter Wilcox was exercising on an elliptical machine. The raid took place on September 19, as the Greenpeace boat was returning from placing a protest banner on a Russian oil rig in the Arctic. At first, the crew thought that being taken over by the Russians would help with the publicity of their cause. Captain Wilcox had been with Greenpeace for forty years and he assumed the boarding was just “part of the game” played between states and activists.
When the boat was taken to the Russian port city of Murmansk, though, they were confronted with a different reality: Prosecutors were charging the crew with piracy, a charge that carries up to fifteen years in prison. After a brutal transport aboard a prisoner train car, the activists were released on bail last week, the charge reduced to “hooliganism.”
Though the piracy charge was dismissed, the episode raised an interesting question in international law; who exactly is a pirate? As it turns out, it’s not just Vladimir Putin who is taking an expansive view of the term.
Traditionally, piracy was carried out as a form of robbery to enrich the pirates. In the ‘golden age’ of piracy, pirates such as Blackbeard commanded large fleets of ships and amassed huge fortunes on the high seas. The pirate crews also profited from the raids and there were even systems of workman’s compensation for the crews.
Under international law, piracy prosecutions traditionally required that the alleged pirates were seeking private gains. The Harvard Draft Convention on Piracy from 1932 noted that, “If an attack by a ship manned by insurgents is inspired by a motive of private plunder, it may be piracy under the definitions of the draft convention.” Under the United Nations Convention on the Law of the Sea, piracy requires the use of violence against a ship when it is “committed for private ends.” The requirement fits with the traditional definition of a pirate as a businessman seeking to enrich himself and his crew. In the 1820 case of United States v. Smith, the U.S. Supreme Court defined piracy as “robbery on the high seas.”
But now that’s changing: Nations have begun to accept the idea that piracy can include politically motivated attacks on ships, even by environmentalists.
Greenpeace, in fact, has seen this change from up close. In 1986, the organization was at the center of a major court case that shifted the definition of piracy away from plunder and towards attacks motivated by an ideological commitment. That year, Greenpeace attacked two Dutch ships that were preparing to discharge waste in the ocean. The activists made a sophisticated assault on the Dutch crew; they attached cables to the ship, placed paint on the command post, threatened the sailors with a knife, and tried to place the anchor down. The Belgian Court of Cassation classified the attacks as an instance of piracy because, even though the attack wasn’t designed for financial profit, the Greenpeace crew was taking violent action based on their personal beliefs.
More recently, U.S. Courts have adopted this view in upholding an injunction against the Sea Shepherd for attacking Japanese whaling boats. The Sea Shepherd was started by Paul Watson in 1977 after he split off from Greenpeace because he found their tactics too passive. Watson has been criticized by Greenpeace for dangerous tactics: He has said that his goal is not to protest Japanese whaling: “We are here to stop them.” After years of clashes, a Japanese whaling group called the Ceatacean filed an injunction in U.S. Court seeking to halt the attacks on their research ships. Originally, Judge Richard Jones, a former lawyer for the port authority of Seattle, refused to recognize the Sea Shepherd’s actions as piracy. But his opinion was overturned by the 9th Circuit Court of Appeals. Judge Alex Kozinski noted that “you don't need a peg leg or an eye patch” to be a pirate. Kozinski concluded that when you “ram ships; hurl containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be." Though the Sea Shepherd didn’t have financial gains to seek from the attacks, U.S. Courts considered this piracy because it was motivated by a personal belief and included drastic instances of violence.
The reality is that when groups engage in violence on the high seas they often will come with both personal motives and financial interests. “The Irish pirates of prior centuries attacked British ships for gain, but also for politics. Similarly, British pirates against the Spanish in the early 1700s stole—and had political motives,” notes Northwestern University Law Professor Eugene Kontorvitch. Similarly, Somali pirates today are the out-growth of militia groups founded to protect Somali fishermen in the 1990s. Regardless of their motivations, committing violence on the high seas is piracy.
While the international community drew the line on Russia’s prosecution of the peaceful Greenpeace crew whose crime was only placing a banner on an unmanned oil rig, there is a growing consensus that piracy includes political attacks on the high seas, even those launched by environmentalists.
Sam Kleiner is a fellow at the Yale Law Information Society Project.