Foreign Relations & International Law

Piracy and the Political Question Doctrine in Non-Conflict Uses of Force

Eugene Kontorovich
Monday, August 31, 2015, 6:31 AM

The International Tribunal for the Law of the Sea issued a provisional order in the Enrica Lexie case on August 24th. This epic legal battle between India and Italy concern's the latter’s efforts to prosecute Italian marines who accidentally killed Indian fishermen that they had mistaken them for pirates. In June, Italy submitted the dispute for arbitration to the International Tribunal for the Law of the Sea, which on Aug.

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The International Tribunal for the Law of the Sea issued a provisional order in the Enrica Lexie case on August 24th. This epic legal battle between India and Italy concern's the latter’s efforts to prosecute Italian marines who accidentally killed Indian fishermen that they had mistaken them for pirates. In June, Italy submitted the dispute for arbitration to the International Tribunal for the Law of the Sea, which on Aug. 24 issued a provisional measure ordering both countries—primarily India—to suspend their domestic proceedings in the case pending a ruling by the Tribunal.

The abundant legal proceedings in the Enrica Lexie case contrast with the story of another case involving the accidental killing of fishermen in anti-piracy action, this time by the U.S military personnel. In this case, no judicial remedies have been available.

Last week certiorari petitions were filed in Wu Tien Lu-Shou vs. United States, 777 F.3d 175 (2015), in which the Fourth Circuit ruled that a suit by the family of an innocent fisherman killed in a U.S. Navy anti-piracy operation fell outside the Article III jurisdiction of federal courts because of the political question doctrine. The case has attracted no comment or discussion so far. I happened across it recently when writing about a Fourth Circuit decision about the constitutionality of the mandatory federal life sentence for piracy. But Lu-Shou bears noting, as it raises interesting questions about the applicability of the political question doctrine to non-traditional military operations.

The case involved a Taiwanese fishing ship that had been captured by Somali pirates in 2009 and used as a “mothership” for further piratical attacks. The U.S.S. Groves, part of a NATO anti-piracy patrol, encountered the vessel in May 2011, and was ordered by the Dutch commander of the task force to stop the ship. The Groves proceeded to do so, first demanding the vessel stop, then firing warning shots, and ultimately firing at the ship itself. When the Navy boarded the Taiwanese vessel, it found several dead pirates—as well as the ship’s civilian master, also dead. As it turns out, the pirates on the ship had kept some of the crewmembers on board to operate the vessel.

The master’s widow sued for damages for the death of her husband, as well as the subsequent loss of his vessel (which was sunk by the Groves after the operation, a fairly common procedure).

In an opinion by Judge J. Harvie Wilkinson, the Court held the suit to be non-justiciable because it would require the Court to "wade into sensitive and particularized military matters." In particular, it would require the court to examine the Navy’s rules of engagement—what warnings it uses, what ammunition it authorizes, and so forth.

The Court enumerated numerous grounds to support the non-justiciability. First, the questions involved tactical and security trade-offs that the judges were not equipped to evaluate. Second, the judicial second-guessing of military decisions would lead to a dangerous second-guessing of such decisions within the military: allowing discovery "would afford military personnel a reason and incentive to question orders—namely, to head off tort liability or at least the burdens of litigation that come with being sued." This is a potentially broadly applicable ground for non-justiciability, and would apply to military decisions even outside the use of force. Of course, modern international criminal law is designed to encourage soldiers to question orders regarding the use of force, which raises the question of how the Fourth Circuit's approach would apply to a civil action for war crimes that would not be protected by a superior orders defense.

A final factor pointing towards non-justiciability was that U.S. forces were acting under NATO command: the "disruption caused to our alliances by treating allied command decisions as advisory or second-rate is all too evident." While the status of U.S. operations under multinational command has posed statutory questions about habeas jurisdiction—from Hirota to Munaf v. Geren, 553 U.S. 674, this may be the first time it has been thought relevant to the political question doctrine. Apparently, the Court thinks decisions by multinational commands to be even less reviewable than by U.S. commanders.

One argument by the plaintiff received somewhat greater attention. The U.S. warship was engaged in a counter-piracy operation: in effect, a campaign aimed at preventing criminal activity, not a military action. Thus there should be no more concern with justiciability than in a shooting attendant to a traffic stop. While hostages killed in a police raid may have little substantive legal basis for second-guessing the relevant decisions, such claims would certainly be reviewable.

The Court nonetheless concluded that it was the military nature of the operation—conducted by the armed forces, in a role they have traditionally served—rather than its goal or the existence of belligerency that triggered the political question doctrine. Thus the Court held that the political question doctrine extends to non-combatant kinetic operations of the military, and also auxiliary actions not directly linked to the use of force (such as the subsequent scuttling of the fishing vessel, which the plaintiff strongly argued would not be non-justiciable even if the original incident was).

The Fourth Circuit noted that past application of the political question doctrine to suits for injuries during military exercises (neither law enforcement nor conflict, though certainly preparation for the latter). On the other hand, the Supreme Court has intimated in dicta, in a case arising from the 1970 Kent State shootings, that the political question doctrine does not preclude private suits against particular acts by military officials for unlawful conduct during civil disturbances. See Gillian v Morgan, 413 U.S. 1, 12 & n.16 (1972).

The Fourth Circuit failed to draw a clear line between justiciable and non-justiciable categories. On one hand, it clearly held that a “state of war” or even armed conflict need not exist for the political question to be invoked. On the other hand, it suggested that mere “law enforcement” action would not be enough. It concluded that the incident was not a “traditional police action” because of its location, the command structure used, and the general presumption, gleaned from the Posse Comitatus Act, that the military is not engaged in law enforcement functions. This last factor seems entirely irrelevant, as the Posse Comitatus Act does not apply extraterritorially. Chandler v. United States, 171 F.2d 921, 936 (1st Cir.1948); United States v. al Liby, 23 F. Supp. 3d 194, 200 n. 37. (S.D.N.Y. 2014)

As for the location, that is also fairly unremarkable, as that is where piracy takes place. Thus the Court did not do a good job at defining the political question zone between “mere law enforcement action” and full “armed conflict.” Indeed, piracy is a crime, and one that, precisely because of its location has traditionally been policed and combatted by the Navy. Anti-piracy operations, which extended to genuine naval engagements, deployment of shore parties, and so forth, have historically been a major function of the U.S. Navy. What this shows is that the Court apparently fell for a false choice between classically military uses of force and “police” actions. Extraterritorial police action is part of what has traditionally been military action, and when conducted by the military, should properly fall within the political question non-justiciability that attaches to the latter.

One wonders at the other possible applications of the Court's ruling. The Fourth Circuit was right that piracy differs from a traffic stop, principally because the former occurs on the high seas and has thus traditionally been carried out by naval forces. But would the political question doctrine apply to the military's use of force attendant to other law enforcement on the high seas such as drug interdiction or dealing with migrants?

Of course, the decision avoids what could have been interesting substantive issues. Under international law, all of the crew of a pirate ship are equally guilty of the crime of piracy. Naval forces can use deadly force to stop such ships on the high seas. However, it is quite foreseeable that such vessels will also have innocent civilians on them. While traditionally firing on a pirate vessel would not raise any substantive issues, I can imagine people arguing today that the supposedly greater “human rights” flavor of international law may restrict such action when it could harm innocent civilians, though I know of no evidence to support such claim. And it will not be forthcoming from U.S. Courts.

It is also worth noting that despite the non-justiciability in Article III courts, under UNCLOS, the incident could potentially be litigated there (except that Taiwan is not a member). Ironically, as a result of the Fourth Circuit ruling, there would be no potential issue of impermissibly delegating Article III jurisdiction to non-Article III courts.

On a separate note, the Court also rejected the plaintiff’s contention that the seized fishing vessel had to be disposed of under the laws of prize—that is, brought into port and libeled. However, the Court, albeit in dicta, seemed fully convinced that prize law has not fallen into desuetude, nor is limited to situations of armed conflict, questions that have recently been the subject of some discussion in a rare prize proceeding in an Israeli district court.

Eugene Kontorovich is a professor at Northwestern University School of Law.

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