Pirates and Privateers

Who Will Try the Case?

Law & Order: Pirate Edition (part 7)
by Cindy Vallar


(Source: Shutterstock)

Jurisdiction often comes into play in cases of modern piracy, but every once in a blue moon, it is an issue that had to be dealt with in the past. One case that best illustrates this involved Benito de Soto and Morning Star. He and his men are particularly brutal pirates, as Nicholas Fernandez confesses prior to his execution.

In February 1846, Fernandez participated in the capture of a Portuguese ship carrying forty people, some of whom were women and children.

[S]uspecting our character, and if overpowered by us, expecting no mercy, they bravely defended themselves, and twice with no other weapons than their knives, drove us from their decks, nor were they finally overpowered until they had killed three of our men, and severely wounded six more – our chief, as well as most on board . . . breathed nothing but revenge, and would not . . . be satisfied with any thing short of the total destruction of the lives of all on board, without respect to sex or age! – a few light and most valuable articles found on board were thrown into our boats, and the ship then set on fire in three or four different places in her hold and cabin; and not until the flames had so increased that it was judged impossible for the wretched victims left on board to extinguish it, had we permission to quit the ship – the fire in columns bursting from every port, and communicating to the sails and rigging, soon drove the poor sufferers forward even to the extreme end of the ship’s bowsprit – where, with up-lifted hands they most earnestly intreated us to spare their lives! as we had destroyed the ship’s boats, all retreat was cut off, except to plunge themselves into the sea, which many did, but . . . all who approached the schooner . . . were shot in the water and others killed with hatchets while attempting to gain our decks! – the shrieks and dying groans of the unhappy victims on board the burning ship, as the devouring flames approached them, were calculated to pierce the hearts of any but barbarians like ourselves, destitute of every humane feeling – in less than one hour the shrieks of the dying had ceased . . . and little more was visible of the late noble ship but her bottom, burnt to the water’s edge! (Dying, 11-12)

As horrible and heartrending as his description, this was not the piratical act that brought about his demise because he and his fellow pirates left no witnesses. When the ship failed to reach port, the owners and authorities just assumed that she was lost at sea and everyone on board perished. Two years passed before another attack eventually brought about the pirates’ downfall. This time, they chose an English ship named Morning Star.

[O]n board [were] forty or fifty souls, including seventeen sick soldiers, and several women and children . . . we proceeded to strip the ship of every thing valuable that could be easily removed . . . the men on board, including the sick soldiers, were confined in the hold, and the wretched females and the children being secured in the cabin, we next proceeded to prepare our minds by the free use of the liquor found therein, for the commission of crimes . . . we proceeded to commit such excesses as decency forbids that I should mention! (Dying, 14-15)

(Source: Project Gutenberg -- The Pirates Own Book by Charles Ellms, 1837)

Once the pirates finished their debauchery, they set about destroying all evidence of their crimes.

. . . with the women and children still confined to the cabin, and the men (including the sick soldiers) to the hold, without a possibility of their being able to liberate themselves, the ship was by us scuttled and abandoned, and soon after sunk to the bottom with, every soul on board! and to close the tragic scene, the captain and four men whom we had retained on board the brig, were next murdered and their bodies thrown into the sea! (Dying, 16)

The slaying of all the innocent lives was what the pirates thought happened. In realty, the women were made of sterner stuff. Even with the ship’s hatches sealed shut, holes bored in Morning Star’s hull below the waterline, masts toppled and rigging destroyed, and she was afire, two women escaped the locked cabin and released the men. With assistance from another ship, Morning Star reached London.

Once the pirates were arrested in Cadiz, Spain, where to hold the trial became an issue. England certainly wanted to prosecute, since her citizens had experienced the horrors of de Soto’s attack, and Morning Star was an English ship, but trying the culprits “was only feasible if it could be proved in court that any of the arrested pirates had ‘actively participated’ in the plunder or murder of persons aboard an English vessel in international waters.” (Ford, 128) What the government found troubling was not that the victims could testify about the attack but that the very public trial would bring to light issues the authorities preferred to keep quiet. For example, Morning Star was licensed by the East India Company (EIC) and the Admiralty’s First Secretary, Sir John Croker, had ties to the EIC and had ignored “countless warnings from serving Royal Navy captains, the Secretary of Lloyd’s and Members of Parliament about the dangerous resurgence . . . of piracy in the Atlantic.” (Ford, 129) In addition, Morning Star became perfect prey because she had fallen behind the rest of the convoy with which she’d been travelling, and that convoy had been protected by “well-armed East India Company ships while she was carrying wounded soldiers, women and children – not to mention British Prize Fund treasure.” (Ford, 129) Such revelations would have fueled a media frenzy.

Another complicating factor was that Benito de Soto had not been aboard Morning Star, and therefore, no witness could directly testify that the pirate captain was a participant. For these reasons, Great Britain decided Spain should prosecute.

Technically, the United States could also claim jurisdiction. The pirates, prior to their capture, had attacked Topaz, an American ship, and some of the plundered cargo had been found in the pirates’ possession. There were no witnesses to what befell Topaz because the Boston ship had gone missing. (The common belief was that she had been lost to pirates.) When the United States failed to come forward, jurisdiction defaulted to Spain where the pirates were imprisoned.

A military court tried twelve pirates in November 1829. Joaquim Palabra, a young servant on the pirate ship, was declared not guilty. Five were “condemned to the galleys – one for ten, one for eight, and three for six years.” (Ford, 201) Six pirates were sentenced to be hanged and quartered, and their heads displayed at coastal forts.

The only pirate whom the British did try was Benito de Soto but not in England. His trial opened in January 1830, at Gibraltar, even though one jurist had previously said, “the Crown had no provable case.” (Ford, 205) The main stumbling block continued to be the fact that no one could identify de Soto as one of the perpetrators, and Spain refused to allow any of the galley slaves to testify. Equally troubling was that he no longer looked like the fiendish pirate who had attacked Morning Star. Even so, the prosecutor said a steward

will go so far as to swear to the figure, gait, and general appearance of the prisoner, although he could not swear to his features. As the two vessels were close to each other, he had an opportunity of observing him; but because the prisoner was holding a speaking-trumpet before his face . . . the steward was unable to see his countenance. (Ford, 2007)

This statement was a direct contradiction to what the steward had said long before the trial occurred. When he testified in response to the prosecutor’s question, “‘Could you recognize again the man holding the speaking-trumpet?’”, the steward replied,

He stood conspicuous enough for me to discern his attitude and stature . . . but I never saw him afterwards until I saw the prisoner in this Court today. I do not hesitate a moment to say he is the man who hailed us and gave directions to his crew who came aboard Morning Star. (Ford, 2009)

De Soto was furious. He demanded to know how the man could possibly identify him now when he couldn’t before. The steward’s answer was “‘I can swear not from your face, but from your height.’” (Ford, 2009) More than a few people questioned the veracity of this testimony, but the prosecutor announced that Spain would permit Joaquim Palabra to come testify. When the lad saw de Soto in the dock, he became unintelligible and the court judged him to be unfit to testify. The prosecution rested, and de Soto took the stand in his own defense. He claimed to have no hand in the robberies; he was simply a crew member on the pirate ship. Even so, within minutes of being released to consider the guilt or innocence of the accused, the jury convicted de Soto of piracy and he was sentenced to hang on the morning of 25 January 1830.

In the scheme of things, not much has changed as regards jurisdiction and bringing pirates to justice over the centuries. There are often more roadblocks than one expects. At the beginning of 2009, the Combined Task Force 151 (CTF 151) was comprised of naval ships from multiple countries and one of their primary objectives was to counteract piracy in international waters around the Horn of Africa. When first formed, a number of legal issues arose. Some participant nations hadn’t yet enacted laws against piracy.

U.S. Coast Guard Law Enforcement Detachment and Combined Task Force team members from guided
missile destroyer USS Farragut board, search, and seize a suspicious dhow in the Indian Ocean in March 2010.
U.S. Navy Photo by Mass Communication Specialist 1st Class Cassandra Thompson/Released
(Source: Wikimedia Commons)

As Commander Pete Koebler of CTF 151 explained,

It is not enough to say that international law allows for universal jurisdiction over piracy. In order to legally prosecute suspected pirates under a nation’s own domestic laws, the nation concerned must normally also have adopted some sort of domestic criminal law concerning the topic of piracy.

Even assuming a particular nation does have a domestic law on point, such a nation may well be concerned about the precedent it will set whenever it elects to prosecute a particular set of suspected pirates. Having done so in an individual case, will they now be honor bound by the court of popular opinion to prosecute all similarly situated suspected pirates in the future? Even if it will not break the national treasury to prosecute a particular set of suspected pirates, can the nation afford to prosecute the numerous other similar groups of suspected pirates who may well be captured later that very same year? (McKnight, 90-91)

Of the original participants only Denmark, the United States, and the United Kingdom could legally arrest suspected pirates. Three years later, seventy-one pirates were in custody awaiting a decision as to what to do with them. Vice Admiral Mark I. Fox, commander of the United States Fifth Fleet, said in an interview with a New York Times reporter that “There is not a repeatable international process to bring them to justice. We lack a practical and reliable legal finish.” (McKnight, 87) Victims, however, don’t care about jurisdictional and legal issues. Mahmed Younes, captain of an Iranian fishing dhow captured by pirates and rescued by sailors from USS Kidd in 2012, had this to say:

The punishment should be for the crime. They should be taken to court and tried. At any cost they should not be let go, because if you let them go they will come back stronger and harass more people. Every time these navies’ countries let them go, the pirates just laugh at that. (McKnight, 89)

On rare occasions, pirates are brought to justice. In this case, the Seychelles agreed to prosecute. The pirates were charged with three different counts, of which all were found guilty. The adults were sentenced to terms of twelve, eighteen, and eighteen years for the three counts, and these would be served concurrently. Two convicted pirates were minors and sentenced to three, four, and four years for the three counts. These sentences would be served at the same time but in different facilities from the adults.

The attack on MV Maersk Alabama is another example that resulted in prosecution. In April 2009, the cargo ship was situated hundreds of kilometers off Somalia’s coast on her way to Mombasa, Kenya, when two pirates with AK-47s boarded her. Captain Richard Phillips and two other Americans were on the bridge at the time; the remainder of the crew locked themselves in a fortified safe room where they could still control the vessel’s movements. Two additional pirates joined their comrades, and a search began for the missing crewmen. The Alabamians ambushed and captured a pirate; he would be returned to the pirates if they released Captain Phillips. An agreement was reached and the crew released their captive, but the pirates reneged and forced Captain Phillips to board the cargo ship’s lifeboat. To release him, the pirates demanded a ransom of $2,000,000.

USS Bainbridge, alerted to the impending pirate attack by one of the Alabamians, arrived on the scene, while a Navy SEAL team left Virginia to help with the rescue. Abduwali Abdukhadir Musé, the pirate tasked with assisting with ransom negotiations, came aboard the warship. While there, one of his comrades pointed his weapon at Captain Phillips. Seeing that he was in imminent danger, SEAL snipers received permission to take out the three remaining pirates. Musé was taken into custody and eventually transported to the United States to stand trial, the first prosecution of a pirate on American soil since 1885. Although initially charged with five counts – one of which was piracy, which had a mandatory sentence of life imprisonment – Musé pleaded guilty on 18 May 2010, “to two felony counts of hijacking maritime vessels, two felony counts of kidnapping, and two felony counts of hostage taking.” (United States Attorney, 1) Two of the charges carried maximum sentences of twenty years; the remaining four were for life.

Today, Abduwali Abdukhadir Musé admitted his leadership role in the armed hijacking of an American-flagged vessel and two international ships in the Indian Ocean. The five-day Maersk hijacking and the events leading up to it make it clear that modern-day piracy is a crime against the international community and a form of terrorism on the high seas. Pirates who attack U.S. ships overseas and take American hostages should know that they will face stiff justice in an American courtroom. (United States Attorney, 3)

U.S. Attorney Preet Bharara shared this statement during a press conference. During the sentencing hearing the following year, Musé said, “I am sorry very much about what happened to the victims who were in the ship. I ask for forgiveness to all the people who I harmed and to the U.S. government.” (Klasfeld)

While the defense said their client had been “abused by his father and left home for days after being tied to a tree and told he would be eaten by a lion,” Assistant U.S. Attorney Brendan Robert McGuire stated that Musé “relished in the suffering of his victims . . . It will be his voice that [the victims] hear, and it will be his laugh that will haunt them.” (Klasfeld) Bharara said,

For five days that must have seemed like an eternity to his victims, Adduwali Abukhadir Muse terrorized the captain and crew . . . Now he will pay for those five days and the events leading up to them. Today’s sentence makes it clear that piracy on the high seas is a crime against the international community that will not be tolerated. (Klasfeld)

When deciding on his punishment, U.S. District Judge Loretta Preska was influenced by victims’ letters, such as the one written by John Cronan, Maersk Alabama’s third engineer.

I held my daughter’s picture in the dark, praying I’d have the opportunity to tell [my children] I love them one last time. (Klasfeld)

Before pronouncing sentence, Preska mentioned that Musé had shown an “extreme level of violence and sadism.” (Klasfeld) The penalty she invoked was 405 months or more than thirty-three years in prison. Musé will also be supervised for five years once he is released and he must pay restitution of $550,000.


To be continued . . .

Part 1: Law and Order: Pirate Edition               Part 2: What Is a Pirate?

Part 3: The Evolution & Suppression Continues

Part 4: A Test Case          Part 5: Suppressing a Proliferation

Part 6: A New Nation Joins the Fight against Piracy

Part 7: Who Will Try the Case?

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