Full opinion text
OPINION AND ORDER MARK S. DAVIS, District Judge. This matter is before the Court on motions to dismiss Count One of the Superseding Indictment filed by defendants Mohammed Modin Hasan (“Hasan”), Gabul Abdullahi Ali (“Ali”), Abdi Wali Dire (“Dire”), Abdi Mohammed Gurewardher (“Gurewardher”), and Abdi Mohammed Umar (“Umar”) (collectively, the “Defendants”). Count One charges Defendants with the offense of piracy as defined by the law of nations, in violation of 18 U.S.C. § 1651. The motions have been fully briefed, the Court has heard oral argument, and the matter is now ripe for decision. After careful consideration, and for the reasons explained in greater detail below, the Court DENIES Defendants’ motions to dismiss Count One of the Superseding Indictment. I. BACKGROUND The United States (“Government”) alleges that sometime in March 2010, Defendants set off from Somalia in a seagoing vessel in search of a merchant ship to attack and plunder. Shortly after midnight on the morning of April 1, 2010, somewhere on the high seas between Somalia and the Seychelles, Defendants sighted what they believed to be a merchant ship. Hasan, Ali, and Dire thereafter boarded one of two small assault boats moored to the seagoing vessel and set out to attack the perceived merchant ship. To facilitate their attack, Hasan carried a rocket-propelled grenade (“RPG”), and Ali and Dire each carried an AK-47 assault rifle. Gurewardher and Umar meanwhile remained on board the seagoing vessel. As the crew of the assault boat approached their target, Ali and Dire raised their assault rifles and opened fire on the vessel. To the surprise of Hasan, Dire, and Ali, what they had until then believed to be a merchant vessel quickly revealed itself to be the USS Nicholas, a United States Navy frigate. After the USS Nicholas returned fire, Hasan, Dire, and Ali fled the scene in their assault boat. The USS Nicholas gave chase, eventually capturing the assault boat, Hasan, Ali, and Dire. The USS Nicholas thereafter searched for, found, and captured the seagoing vessel, along with Gurewardher and Umar. On April 20, 2010, a federal grand jury returned a six-count Indictment against Defendants. Docket No. 1. On July 7, 2010, a federal grand jury returned a Superseding Indictment charging Defendants with a total of fourteen counts. Docket No. 63. Count One of the Superseding Indictment charges Defendants with piracy, in violation of 18 U.S.C. § 1651. Section 1651 provides that “[wjhoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is after-wards brought into or found in the United States, shall be imprisoned for life.” 18 U.S.C. § 1651. The remaining counts of the Superseding Indictment charge Defendants with various acts of violence, assaults with a dangerous weapon, and illegal possession of firearms and an explosive device. Each Defendant filed a motion to dismiss Count One of the Superseding Indictment. Docket Nos. 71, 83, 86, 88, 95, 105, 116. The Government responded to Defendants’ motions to dismiss in a single consolidated filing submitted to the Court on July 30, 2010. Docket No. 118. On August 5, 2010, Hasan, Ali, Dire, and Gurewardher filed a Joint Reply Brief in Support of Their Motions to Dismiss Count One. Docket No. 126. After briefing by the parties was complete, the Court heard oral argument on September 10, 2010. II. LEGAL STANDARD The instant motions are filed pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Rule 12(b)(2) provides that “[a] party may raise by pretrial motion any defense, objection, or request that the. court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). Rule 12(b)(3)(B) further states that “a motion alleging a defect in the indictment” by a defendant “must be raised before trial,” but that “at any time while the ease is pending, the court may hear a claim that the indictment ... fails ... to state an offense.” Fed.R.Crim.P. 12(b)(3). A Rule 12(b)(2) motion asserting that the facts stated in an indictment fail to satisfy the elements of the offense, which may be brought as a pretrial motion, is also a correlate of what is now expressly described as a Rule 12(b)(3) motion “alleging a defect in the indictment or information,” such as a claim that the indictment “fails ... to state an offense,” which Rule 12(b)(3) provides may be heard “at any time while the case is pending.” The correlation is apparent, because the court cannot determine whether the indictment fails to state an offense unless the court first determines the elements of the offense. United States v. Salazar-Montero, 520 F.Supp.2d 1079, 1084 (N.D.Iowa 2007) (quoting Fed.R.Crim.P. 12(b)(3)(B)) (internal citation omitted). Therefore, to survive a motion to dismiss sought pursuant to Rule 12, an indictment must allege facts that, if proven true, would sustain a violation of the offense charged. United States v. Shabbir, 64 F.Supp.2d 479, 481 (D.Md.1999). Defendants contend that Count One fails to state an offense because, even if the facts alleged are true, such facts do not satisfy the elements of the charged offense. Accordingly, Defendants’ motions to dismiss Count One should only be granted if the Superseding Indictment fails to set forth facts that are sufficient, if proven true, to constitute the crime of piracy as defined by the law of nations, in violation of 18 U.S.C. § 1651. III. HISTORICAL CONTEXT For centuries, pirates have been universally condemned as hostis humani generis — enemies of all mankind — because they attack vessels on the high seas, and thus outside of any nation’s territorial jurisdiction, without pretense of state authority, irrespective of the target vessel’s nationality, and with devastating effect to global commerce and navigation. See generally Eugene Kontorovich, Implementing Sosa v. Alvarez-Machain: What Piracy Reveals About the Limits of the Alien Tort Statute, 80 Notre Dame L.Rev. 111, 139-53 (2004) (identifying the unique characteristics of piracy that make it a universally cognizable international offense) [hereinafter Kontorovich, Implementing Sosa], As a result of a dramatic increase in the incidents of piracy at sea off the coast of Somalia in recent years, members of the international community (including the United States) have deployed naval vessels in an effort to suppress such activity. See S.C. Res. 1851, U.N. Doc. S/RES/1851 (Dec. 16, 2008), S.C. Res. 1897, U.N. Doc. S/RES/1897 (Nov. 30, 2009) & S.C. Res. 1918, U.N. Doc. S/RES/1918 (Apr. 27, 2010), available at http://www.un.org/ documents/scres.htm. Now, as a result of such participation, and after a long lapse in the prosecution of piracy in the United States, the Government has charged these Defendants, and others, with “piracy as defined by the law of nations,” or, as it is also known, “general piracy,” “piracy jure gentium,” or “the international crime of piracy.” In seeking dismissal of the piracy charge, Defendants challenge whether the acts alleged by the Government, namely the attack on the USS Nicholas, constitute piracy as defined by the law of nations. In short, Defendants contend that general piracy requires a robbery on the high seas, and that, because robbery requires the “taking” of property, the Government’s failure to allege any actual taking precludes a conviction for general piracy. By asserting that the Government has failed properly to allege the elements of the piracy charge contained in the Superseding Indictment, Defendants present the Court with a straightforward question: what is the definition of piracy under the law of nations? To answer this question, the Court must first examine piracy’s modern origins and historical development, in order to provide the proper backdrop for assessing the contours of general piracy under United States law. The most appropriate place to begin such an inquiry is with the nation’s founding document, the source from which the Judiciary and the other branches of the United States government derive their authority to define, enforce, and adjudicate criminal offenses: the United States Constitution. A. The “Define and Punish” Clause The Constitution provides that “[t]he Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” U.S. Const, art. I, § 8, cl. 10. The “Define and Punish Clause” authorizes Congress to proscribe, and prescribe punishments for, three distinct sets of offenses: (1) “Piracies ... committed on the high Seas,” (2) “Felonies committed on the high Seas,” and (3) “Offenses against the Law of Nations.” United States v. Shi, 525 F.3d 709, 721 (9th Cir.), cert. denied, — U.S. —, 129 S.Ct. 324, 172 L.Ed.2d 234 (2008) (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 158-59, 5 L.Ed. 57 (1820)). To comprehend fully the breadth of Congress’s power to “define and punish Piracies,” and discern the guiding principles by which any statute passed pursuant to such power must be interpreted, it is important to examine the Framers’ understanding of piracy at the time of the nation’s founding, and review the unique characteristics that have for centuries distinguished piracy from all other crimes. 1. Piracy at the Founding During the Constitutional Convention of 1787, it appears that the proposed Define and Punish Clause caused little excitement, and the modest debate that the clause did elicit concerned not the words “Piracies,” “Felonies,” or the “Law of Nations,” but rather the meaning of “define” and “punish.” Eugene Kontorovich, The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Nw. U.L.Rev. 149, 162-164 (2009) [hereinafter Kontorovich, Define and Punish]; see also Rubin, Law of Piracy, supra, at 132-137 (discussing piracy at the Founding of the United States). Several delegates to the Constitutional Convention challenged the propriety of a single nation, particularly one in its infancy such as the United States, defining crimes that were necessarily determined by all nations. Kontorovich, Define and Punish, supra, at 163 & n. 69 (citing 2 The Records of the Federal Convention of 1787, at 615 (Max Farrand ed., 1911)). Other delegates were concerned that using wording that was too restrictive would unnecessarily limit Congress to preexisting definitions of crimes falling within the scope of the clause. Kontorovich, Define and Punish, supra, at 163. In order to address the concerns of delegates, the Constitutional Convention considered several variations on the Define and Punish Clause, including the suggested use of the words “designate” or “declare” to replace “define.” Id. at 162-63. In the end, the words “define” and “punish” were apparently selected to empower Congress to proscribe crimes with an administrable level of certainty and make clear that international law, by its own force, did not create criminal liability in the United States. Id. Notably, at the time of the nation’s founding, “Pirac[y]” was generally considered to be both a type of “Felonfy] committed on the high Seas” and an “Offense[ ] against the Law of Nations.” Id. at 163-164. With respect to felonies, while piracy was at one time distinguishable from felonies, because piracies were originally only triable under the civil law of admiralty, whereas felonies were cognizable only in common law courts, this distinction had long since ceased to exist by the Eighteenth Century. Id. at 160-61. With respect to offenses against the law of nations, the Framers understood the law of nations to consist of two chief components: (1) “the general norms governing the behavior of national states with each other” and (2) “a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor.” Sosa v. Alvarez-Machain, 542 U.S. 692, 714-15, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). In addition, the law of nations contained “a sphere in which [the] rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships.” Id. at 715, 124 S.Ct. 2739. In the Eighteenth Century, this final overlapping sphere comprised three specific offenses: (1) “violation of safe conducts,” (2) “infringement of the rights of ambassadors,” and (3) “piracy.” Id. (citing 4 William Blackstone, Commentaries *68). Accordingly, as one commentator has noted, the Define and Punish Clause presents a double redundancy by pairing “Piracies” with “Felonies committed on the high Seas” and “Offences against the Law of Nations,” the latter two categories being broader groupings of offenses within which piracy was already included. Kontorovich, Define and Punish, supra, at 163-65. The double redundancy contained in the Define and Punish Clause suggests that the Framers’ viewed “Piracies” as a crime somehow distinct from both “Felonies committed on the high Seas” and “Of-fences against the Law of Nations.” Id. at 164-65. The most obvious difference, and one that would have been readily apparent to the Framers, was that piracy on the high seas was a unique offense because it permitted nations to invoke universal jurisdiction, such that any country could arrest and prosecute pirates in its domestic courts, irrespective of the existence of a jurisdictional nexus. Id. at 165-67; see also 4 William Blackstone, Commentaries *71 (describing piracy, well before the Constitutional Convention, as an “offence against the universal law of society” such that, with respect to a pirate, “every community hath a right by the rule of self-defense, to inflict punishment upon him”). Indeed, by the Eighteenth Century, the international crime of piracy was well established as the only universal jurisdiction crime. Kontorovich, Define and Punish, supra, at 165; see also United States v. Robins, 27 F.Cas. 825, 862 (D.S.C.1799) (No. 16,175) (discussing “piracy under the law of nations which alone is punishable by all nations ....”) (quoting speech delivered by John Marshall to Congress). The Define and Punish Clause therefore accords to Congress the special power of criminalizing piracy in a manner consistent with the exercise of universal jurisdiction. Congress’s execution of this power, however, has not been without considerable confusion. The confusion has stemmed largely from the fact that in enacting legislation pursuant to its authority to “define and punish Piracies,” Congress has proscribed piracy as both a “municipal” crime, in violation of the laws of the United States, and as an international crime, in violation of the law of nations. Edwin D. Dickinson, Is the Crime of Piracy Obsolete?, 38 Harv. L.Rev. 334, 335-36 (1925) [hereinafter Dickinson, Obsolete ] (“[Piracy] has long been regarded as an international crime as well as a crime by municipal law.”). Significantly, whether a statute implemented by Congress condemns piracy as a municipal crime, or as a violation of the law of nations, has important implications for the exercise of universal jurisdiction. The Court therefore next considers the proscription of piracy as an offense against the law of nations versus the proscription of piracy as a crime against the municipal laws of the United States. 2. General Piracy and Municipal Piracy As discussed above, the term “piracy” has been used over the years to describe two distinct offenses: (1) piracy as a violation of a nation’s municipal laws (municipal piracy), and (2) piracy as a violation of the law of nations (general piracy). See, e.g., Kontorovich, Define and Punish, swpra, at 166 (“[I]n addition to piracy under the law of nations, different nations made diverse offenses ‘municipal’ or ‘statutory piracies.’ ”). While municipal piracy is flexible enough to cover virtually any overt act Congress chooses to dub piracy, it is necessarily restricted to those acts that have a jurisdictional nexus with the United States. See Dole v. New Eng. Mut Marine Ins. Co., 7 F.Cas. 837, 847 (1864) (Clifford, Circuit Justice, C.C.D. Mass. 1864) (No. 3,966) (“By statutes passed at various times ... many artificial offences have been created which are to be deemed to amount to piracy.... [B]ut piracy created by municipal statute can only be tried by that state within whose territorial jurisdiction, on board of whose vessels, the offence thus created was committed.”). In contrast, general piracy can be prosecuted by any nation, irrespective of the presence of a jurisdictional nexus. Sosa, 542 U.S. at 761-62, 124 S.Ct. 2739 (Breyer, J., concurring) (quoting Smith, 18 U.S. at 162). However, because it is created by international consensus, general piracy is restricted in substance to those offenses that the international community agrees constitute piracy. Sosa, 542 U.S. at 761-62,124 S.Ct. 2739 (Breyer, J., concurring), see also United States v. Palmer, 16 U.S. (3 Wheat.) 610, 641-42, 4 L.Ed. 471 (1818) (Johnson, J., dissenting) (“[Cjongress cannot make that piracy which is not piracy by the law of nations, in order to give jurisdiction to its own courts over such offences.”). a. Piracy as a Universal Jurisdiction Crime i. Principles of Jurisdictional Sovereignty Under international law principles, it is generally recognized that among the bases for jurisdiction, states are permitted to exercise criminal jurisdiction over conduct occurring within their own territory (the “territorial principle”) and conduct committed by their own nationals outside of their own territory (the “nationality principle”). Restatement (Third) of Foreign Relations Law of the United States § 402(1)-(2) (1986) [hereinafter Restatement]; accord Blackmer v. United States, 284 U.S. 421, 437, 52 S.Ct. 252, 76 L.Ed. 375 (1932) (finding that the United States possesses inherent sovereign power to punish its nationals abroad for violations of United States law); The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 137, 3 L.Ed. 287 (1812) (discussing the “full and absolute territorial jurisdiction ... of every sovereign”). States are further afforded criminal jurisdiction to proscribe conduct by foreign nationals occurring outside of their own territory if the conduct has a substantial effect within their territory (the “effects principle”) or if the conduct is directed against a critical state interest (the “protective principle”). Restatement, supra, § 402(1)(c), (3); accord United States v. Yousef, 327 F.3d 56, 110 (2d Cir.2003) (applying the “protective principle” of jurisdiction to a defendant who planned to bomb United States commercial aircraft abroad); United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir.1945) (“[A]ny state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends; and these liabilities other states will ordinarily recognize.”). Having addressed the authority to exercise jurisdiction, it is also necessary to consider the application of such principles to the statutes of the United States. “It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 284-85, 69 S.Ct. 575, 93 L.Ed. 680 (1949)), superseded on other grounds by statute, Civil Rights Act of 1991, Pub.L. No. 102-166, § 109, 105 Stat. 1071. This canon of construction “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” EEOC, 499 U.S. at 248, 111 S.Ct. 1227. In addition, some United States Courts of Appeals have held that “ ‘[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair.’” Yousef, 327 F.3d at 111 (quoting United States v. Davis, 905 F.2d 245, 248 (9th Cir.1990)); accord United States v. Mohammad-Omar, 323 Fed.Appx. 259, 261 (4th Cir.) (unpublished per curiam opinion) (applying the nexus requirement to find no due process violation in extraterritorial application of United States drug laws), cert. denied, — U.S. —, 130 S.Ct. 282, 175 L.Ed.2d 188 (2009); United States v. Shahani-Jahromi, 286 F.Supp.2d 723, 727-29 (E.D.Va. 2003) (applying the due process nexus requirement where the defendant, while in Iran, violated Virginia court orders by removing his daughter from her mother’s custody). But see United States v. Suerte, 291 F.3d 366, 377 (5th Cir.2002) (rejecting the nexus requirement as part of the due process protection against “arbitrary or fundamentally unfair” prosecution in cases arising under the Maritime Drug Law Enforcement Act, 46 U.S.C. App’x §§ 1901— 04 (“MDLEA”)); accord United States v. Perez Oviedo, 281 F.3d 400, 403 (3d Cir.2002); United States v. Cardales, 168 F.3d 548, 553 (1st Cir.1999); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1054-57 (3d Cir.1993). ii. The Universal Jurisdiction Exception Universal jurisdiction stands as a narrow and unique exception to the jurisdictional principles discussed above. Under the doctrine of universal jurisdiction, a state may “define and prescribe punishment for” any offense “recognized by the community of nations” as having “universal concern” even where there is no traditional basis for jurisdiction. Restatement, supra, § 404. Significantly, universal jurisdiction applies only to those crimes that the international community has universally condemned and has also agreed, as a procedural matter, deserve to be made universally cognizable. See Sosa, 542 U.S. at 761-62, 124 S.Ct. 2739 (Breyer, J., concurring) (observing that “substantive uniformity does not automatically mean that universal jurisdiction is appropriate” for a particular crime, because there must also be “procedural agreement that universal jurisdiction exists” over that crime). Moreover, because universal jurisdiction over a crime is established by international consensus, a state can only invoke universal jurisdiction for those acts that fall within the specific “subset of [universally condemned] behavior” that the international community has agreed warrants the assertion of universal jurisdiction. In short, a state’s ability to invoke universal jurisdiction is inextricably intertwined with, and thus limited by, the substantive elements of the crime as defined by the consensus of the international community. See, e.g., Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int’l L. 149, 157-62 (2006) (discussing the “symbiosis” between the “prescriptive” and “adjudicative” authority afforded by universal jurisdiction). iii. Universal Jurisdiction over Piracy The paradigmatic universal jurisdiction offense, and one that has been familiar to the international community for centuries, is the offense of general piracy. See 1 Lassa Oppenheim, Oppenheim’s International Law § 272 (Sir Robert Jennings, QC & Sir Arthur Watts, KCMG QC, eds., 9th ed.1992) [hereinafter Oppenheim, International Law ] (“[Bjefore a Law of Nations in the modern sense of the term was in existence, a pirate was considered an outlaw, a ‘hostis humani generis.’ ... Piracy is a so-called ‘international crime;’ the pirate is considered the enemy of every State, and can be brought to justice anywhere”); Eugene Kontorovich, The Piracy Analogy: Modem Universal Jurisdic tion’s Hollow Foundation, 45 Harv. Int’l L.J. 183, 190 (2004) [hereinafter Kontorovich, Piracy Analogy ] (“For as long as sovereignty-based jurisdictional principles have existed (that is, at least since the early seventeenth century), any nation could try any pirates it caught, regardless of the pirates’ nationality or where on the high seas they were apprehended.”). As discussed above, however, a state can only invoke universal jurisdiction to prosecute general piracy against those acts that fall within the definition of general piracy tacitly or explicitly agreed upon by the members of the international community. States are, of course, free to proscribe any number of acts as municipal “piracies,” but to the extent that such acts do not also constitute general piracy, principles of customary international law preclude states from availing themselves, in prosecuting such offenses, of the universal jurisdiction that applies to prosecution of general piracy. In other words, it is only when a state proscribes piracy in a manner that mirrors the international consensus definition, and prosecutes acts that fall within that definition, that the state can assert the universal jurisdiction doctrine. Because of this need for United States law to reflect the definition of general piracy agreed upon by the international community before universal jurisdiction could attach, initial attempts by Congress to criminalize the international crime of piracy proved difficult. Much of the difficulty stemmed from the then-unanticipated, but now well-established, rule that the federal courts of the United States have no common law jurisdiction in criminal matters; i.e., courts cannot develop judge-made criminal law. See Dickinson, Obsolete, supra, at 342 (arguing that Congress would have distinguished between municipal and general piracy more clearly if it had foreseen the absence of federal common law power to apply the law of nations); see also United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812) (finding no federal court common law jurisdiction in criminal cases); United States v. Britton, 108 U.S. 199, 205-206, 2 S.Ct. 531, 27 L.Ed. 698 (1883). As a result, for a crime to be cognizable in the federal courts of the United States, the offense must be proscribed by an act of Congress. Accordingly, to charge a defendant with general piracy, the Government could not merely rely on the law of nations as part of domestic common law. Instead, Congress had to enact a municipal law that adequately embodied the international crime of piracy. As illustrated by the cases discussed below, the chief difficulty in accomplishing such a task was drafting legislation that was broad enough to incorporate the definition of piracy under the law of nations (and, in so doing, invoke universal jurisdiction) but narrow enough to exclude conduct that was beyond the scope of that definition. b. Justifications for Universal Jurisdiction Although universal jurisdiction has been widely accepted in the context of piracy, there is considerable debate today over the expanded application of the doctrine to new international law crimes. Compare Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86 (2001) [hereinafter Kissinger, Pitfalls ], with Kenneth Roth, The Case for Universal Jurisdiction, 80 Foreign Aff. 150 (2001) [hereinafter Roth, Universal Jurisdiction]. Because of recent controversy over the expansion of universal jurisdiction, it is important to understand how and why piracy is uniquely beyond the scope of such controversy. Indeed, since the end of the Second World War, it has been argued that, in addition to general piracy, the universal jurisdiction doctrine should apply to prosecutions of war crimes, apartheid, torture, genocide, terrorist activities, and other human rights violations. See generally Kenneth C. Randall, Universal Jurisdiction under International Law, 66 Tex. L.Rev. 785 (1988) (discussing the evolution of universal jurisdiction from piracy and slave trading to modern crimes against humanity). The first major expansion of universal jurisdiction occurred with the prosecution of German war criminals in Nuremberg following the Second World War. E.g., id. at 801-10. Later, universal jurisdiction was also invoked to justify the seizure of Adolf Eichmann in Argentina and his subsequent prosecution in Israel in 1961 for Nazi atrocities committed against the Jewish people during the Second World War. E.g., id. at 800-15. More recently, universal jurisdiction was invoked in the 1998 British detention of former Chilean President Augusto Pinochet pursuant to a request for extradition by a Spanish judge for crimes against Spaniards in Chile. E.g., Kissinger, Pitfalls, supra. Those who support broader application of the universal jurisdiction doctrine argue that a system of international justice is an important tool for deterring despots and tyrants, who all too often act with impunity in their home states, from committing atrocities. See, e.g., Roth, Universal Jurisdiction, supra, at 150 (“Impunity may still be the norm in many domestic courts, but international justice is an increasingly viable option, promising a measure of solace to victims and their families and raising the possibility that would-be tyrants will begin to think twice before embarking on a barbarous path.”). On the other hand, those who oppose an expanded use of universal jurisdiction are largely concerned about the lack of any limiting principle that would protect against the erosion of state sovereignty and injection of foreign courts into domestic political affairs. They fear that one nation’s expression of public policy could become another nation’s crime. See, e.g., Kissinger, Pitfalls, supra, at 86 (arguing that “any universal system should contain procedures not only to punish the wicked but also to constrain the righteous” and safeguard against “legal principles [being] used as weapons to settle political scores”). It bears recognition that these arguments, presented in the debate over whether universal jurisdiction should cover modern international law offenses, are inapplicable to piracy. As noted above, piracy has for centuries been considered a universal jurisdiction crime based on international agreement, and, unlike the case with respect to modern universal jurisdiction crimes, there is little debate that all nations have authority to capture and punish any pirate. Yousef, 327 F.3d at 104; In re Piracy Jure Gentium, [1934] A.C. 586, 595 (1934) (“ ‘The pirate is a sea brigand. He has no right to any flag and is justiciable by all.’ ”) (quoting 2 John Bassett Moore, Digest of International Law 953 (1906)). Moreover, unlike modern universal jurisdiction crimes, which invoke the doctrine of universal jurisdiction on the basis of the offense’s heinousness, piracy was the subject of universal jurisdiction because pirates were stateless actors, able to interfere with global commerce and navigation as a result of the difficulty inherent in policing the high seas. Yousef, 327 F.3d at 104 (piracy is universally punishable not because it is uniquely heinous, but instead “because of the threat that piracy poses to orderly transport and commerce between nations and because the crime occurs statelessly on the high seas”); see also Kontorovich, Implementing Sosa, supra, at 139-53 (discussing the reasons why piracy was a universal jurisdiction crime). Indeed, heinousness does not appear to have been among the grounds justifying piracy’s universal jurisdiction status. Privateering consisted of essentially the same acts as piracy, and was therefore no less heinous, but since it was done under the color of national authority, it was not treated as a universal jurisdiction crime. Kontorovich, Piracy Analogy, supra, at 210-23. Piracy instead received its unique jurisdictional status because pirates act outside of any nation’s territorial jurisdiction, and without any nation’s authority, to the detriment of every nation. By comparison, modern universal jurisdiction crimes generally attempt to regulate wholly domestic behavior, such as a state’s treatment of its own citizens, on the basis that the behavior is deplorable and violates fundamental human rights. See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 203 (2d Cir.2009) (Wesley, J., dissenting), cert. denied, — U.S. —, 130 S.Ct. 3541, 177 L.Ed.2d 1121 (2010). Modern universal jurisdiction crimes therefore implicate principles of state sovereignty that piracy does not by reaching into a state, without regard to any measures the state may wish to take within its own political process to address the alleged international crime, and punishing whomever the international community deems fit. The foregoing analysis demonstrates that prosecuting piracy under the auspices of universal jurisdiction does not raise the same state sovereignty concerns implicated by applying universal jurisdiction to modern international law offenses. In contrast to such modern offenses, general piracy, by definition, occurs in areas to which the domestic political process of nations does not extend, involves parties who are not acting under the authority of any nation, and impacts every nation, even those whose vessels are not specifically targeted, by disrupting global commerce and imperiling navigation. B. Legislative Implementation Having examined the constitutional grant authorizing Congress to “define and punish Piracies,” and the unique dual characterization of piracy as an offense against both municipal law and international law, the Court next reviews the legislation enacted by the United States Congress to proscribe piracy. The most pertinent legislation relating to piracy consists of: (1) the Act of 1790; (2) the Act of 1819; (3) the Act of 1820; and (4) the more recent revisions of the earlier acts that are now embodied in Chapter 81 of Title 18 of the United States Code. See generally Samuel Pyeatt Menefee, ‘To Heave Ho!”: Updating America’s Piracy Laws, 21 Cal. W. Int’l L.J. 151, 152-160 (1990) [hereinafter Menefee, Updating America’s Piracy Laws ] (discussing the history of piracy-related legislation in the United States). The Court will briefly review each such piece of legislation in turn below. 1. The Act of 1790 Congress enacted the first substantive piracy legislation in the Act of 1790. The relevant portion of the Act of 1790, Section 8, provides: That if any person or persons shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence which if committed within the body of a country, would by the laws of the United States be punishable with death; or if any captain or mariner of any ship or other vessel, shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of fifty dollars, or yield up such ship or vessel voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander, thereby to hinder and prevent his fighting in defence of his ship or goods committed to his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken and adjudged to be a pirate and felon, and being thereof convicted, shall suffer death ... Act of Apr. 30, 1790, § 8, 1 Stat. 112. The plain language of the Act applies to “any person or persons” on the high seas, and thus arguably was intended to proscribe general piracy in such a manner as to invoke universal jurisdiction. In 1818, however, the United States Supreme Court rejected such a reading of the Act of 1790, and held that the Act did not apply to offenses committed by foreign nationals against foreign vessels: [T]he crime of robbery, committed by a person on the high seas, on board of any ship or vessel belonging exclusively to subjects of a foreign state, on persons within a vessel belonging exclusively to subjects of a foreign state, is not a piracy within the true intent and meaning of the act for the punishment of certain crimes against the United States. Palmer, 16 U.S. at 633-34. The very next year after this decision, Congress enacted a new piracy law in the Act of 1819. 2. The Act of 1819 In response to the Supreme Court’s interpretation of the Act of 1790 in Palmer, Congress passed the Act of 1819 to make clear that it wished to proscribe not only piratical acts that had a nexus to the United States, but also piracy as an international offense subject to universal jurisdiction. The pertinent portion of the Act of 1819, Section 5, provides: That if any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders, shall afterwards be brought into or found in the United States, every such offender or offenders shall, upon conviction thereof, before the circuit court of the United States for the district into which he or they may be brought, or in which he or they shall be found, be punished with death. Act of March 3, 1819, ch. 77, 3 Stat. 510. The Supreme Court interpreted § 5 of the 1819 Act just one year after its enactment in the seminal decision of United States v. Smith, 18 U.S. (5 Wheat.) 153, 5 L.Ed. 57 (1820). Significantly, the effectiveness of the Act of 1819 was limited in duration to just one year, requiring supplemental legislation to prevent its provisions from expiring. See United States v. Corrie, 25 F.Cas. 658, 663 (C.C.D.S.C.1860) (No. 14,-869); accord Rubin, Law of Piracy, supra, at 158-159. One year after passing the Act of 1819, Congress extended § 5 of the Act by passing the Act of 1820. Corrie, 25 F.Cas. at 663; accord Rubin, Law of Piracy, supra, at 158-159. 3. The Act of 1820 In addition to extending § 5 of the Act of 1819, the Act of 1820 also notably condemned the slave trade as piracy, thereby attaching the universal opprobrium piracy had attained to the slave trade. The pertinent portions of the Act of 1820- §§ 2, 4, and 5-provide: Section 2: That the fifth section of [the Act of 1819] be and the same is hereby, continued in force, as to all crimes made punishable by the same, and heretofore committed, in all respects as fully as if the duration of the said section had been without limitation. Section 4 continues: [I]f any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel, owned in the whole or part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall land, from any such ship or vessel, and, on any foreign shore, seize any negro or mulatto, not held to service or labour by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall decoy, or forcibly bring or carry, or shall receive, such negro or mulatto on board any such ship or vessel, with intent as aforesaid, such citizen or person shall be adjudged a pirate; and, on conviction thereof ... shall suffer death. Section 5 continues: That if any citizen of the United States, being of the crew or ship’s company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship’s company of any ship or vessel, owned wholly or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall forcibly confine or detain, or aid and abet in forcibly confining or detaining, on board such ship or vessel, any negro or mulatto not held to service by the laws of either of the states or territories of the United States, with intent to make such negro or mulatto a slave, or shall, on board any such ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto not held to service as aforesaid, or shall, on the high seas, or any where on tide water, transfer or deliver over, to any other ship or vessel, any negro or mulatto, not held to service as aforesaid, with intent to make such negro or mulatto a slave, or shall land, or deliver on shore, from on board any such ship or vessel, any such negro or mulatto, with intent to make sale of, or having previously sold, such negro or mulatto, as a slave, such citizen or persons shall be adjudged a pirate; and, on conviction thereof ... shall suffer death. Act of May 15, 1820, §§ 2, 4-5, 3 Stat. 600. 4. Subsequent Modification Many of the piracy provisions contained in the above-listed congressional enactments have been codified by Congress in Title 18, Chapter 81 of the United States Code. See Menefee, Updating America’s Piracy Laws, supra, at 161-170 (discussing the history of Chapter 81). Indeed, the statute at the heart of the instant case, 18 U.S.C. § 1651, is nearly identical to its precursor, § 5 of the Act of 1819. The only significant difference between 18 U.S.C. § 1651 and § 5 of the Act of 1819 is the penalty prescribed: the former substitutes mandatory life imprisonment for death, the mandatory penalty prescribed by the latter. 18 U.S.C. § 1651. In addition, Chapter 81 proscribes piracy in the “municipal” sense by dubbing various acts as piracy even though they may not necessarily fall within the definition of general piracy recognized by the international community. For example, 18 U.S.C. § 1652 criminalizes certain conduct as municipal piracy when committed by citizens of the United States, including acts of hostility on the high seas. Section 1652 provides: Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life. 18 U.S.C. § 1652. Section 1653 of Title 18 further proscribes certain conduct as municipal piracy when committed by aliens, by stating: Whoever, being a citizen or subject of any foreign state, is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which the offender is a citizen or subject, when by such treaty such acts are declared to be piracy, is a pirate, and shall be imprisoned for life. 18 U.S.C. 1653. Lastly, Chapter 81 criminalizes attacks to plunder a vessel in 18 U.S.C. § 1659. Section 1659 was originally enacted as part of the Act of 1825, and today provides: Whoever, upon the high seas or other waters within the admiralty and maritime jurisdiction of the United States, by surprise or open force, maliciously attacks or sets upon any vessel belonging to another, with an intent unlawfully to plunder the same, or to despoil any owner thereof of any moneys, goods, or merchandise laden on board thereof, shall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 1659. With these statutes in mind, the Court next considers the case law applying that statutory language. C. United States Case Development Preceding 18 U.S.C. § 1651 It appears that the first Supreme Court decision interpreting a congressional enactment relating to piracy was Palmer, which was quickly followed by Smith. No other Supreme Court decision since Smith has directly addressed the definition of general piracy. In order to understand current law regarding piracy, it is important to understand these cases. 1. United States v. Palmer In Palmer, the defendants, some of whom were United States nationals and some of whom were foreign nationals, were accused of attacking and capturing a Spanish vessel while on the high seas. 16 U.S. at 611, 16 U.S. 610. The defendants were later apprehended in the United States and charged with piracy under § 8 of the Act of 1790. Id. at 612. On certification from the circuit court, the Supreme Court was presented with the question of whether § 8, which proscribed as piracy “robbery” and “murder” committed by “any person or persons” on the high seas, could be applied against foreign nationals on board foreign vessels who had acted only against other foreign nationals. Id. at 613. The Court concluded that the Act of 1790 had not proscribed piracy as an offense against international law, and therefore found that the Government could not invoke universal jurisdiction to prosecute acts committed by foreign nationals against other foreign nationals under § 8. Id. at 633-34. In reaching that conclusion, Chief Justice John Marshall, writing for the Court, explained that although the words “any person or persons” used in the Act of 1790 suggested that the Act had “unlimited extent,” the Court nevertheless had to look to broader congressional intent to determine whether the Act was truly meant to extend to foreign nationals. Id. at 631. As evidence of congressional intent, the Court first looked to the title of the 1790 Act, which read: “an act for the punishment of certain crimes against the United States.” Id. The Court found that such language suggested that § 8 aimed to criminalize only acts committed against the United States and not acts that were crimes against humanity generally. Id. The Court next looked for congressional intent in the text of the Act of 1790 itself. The Court noted that the phrase “any person or persons” appeared to extend § 8’s provisions to acts committed by foreign nationals, but found that the remaining statutory language showed that Congress had intended to limit § 8 only to crimes by or against United States citizens. Id. at 632. Specifically, § 8 made a “captain or mariner” who ran away with a ship, or a “seaman” who shall “lay violent hands upon his commander,” pirates. Id. at 632. The Court held that these latter two provisions, which fall outside of general piracy and are instead traditionally proscribed by each state’s municipal law, demonstrated that the entirety of § 8 should be read not to apply to foreign nationals who commit acts against foreign vessels or their crews. Id. at 633. In short, because the Act of 1790 used the terms “any person or persons” with respect to offenses that did not fall within the traditional definition of general piracy under international law, the Court reasoned that the entire Act, including its proscription against robbery on the high seas, should be applied only to offenses against the United States. Accordingly, the Court read the Act of 1790 narrowly, construing it not to proscribe the international crime of piracy, which is typically afforded universal jurisdiction. 2. United States v. Smith In Smith, the defendant and other members of a crew mutinied, confined the officer of the vessel (which was commissioned by the government of Buenos Ayres [sic]) while in port, seized a second vessel commissioned by the government of Artigas, and, while on the high seas, plundered and robbed the vessel. 18 U.S. at 154. The defendant was later captured and charged with piracy under § 5 of the Act of 1819, which, unlike the Act of 1790, explicitly proscribed piracy as defined by the law of nations. The question before the Court in Smith was whether Congress had properly and sufficiently exercised its authority under the Constitution to define and punish piracies by relying on the law of nations for a definition of piracy in § 5. Id. at 158. The Supreme Court answered that question in the affirmative, stating that, by incorporating the definition of piracy under the law of nations, Congress had defined piracy as clearly as if it had penned the elements of the offense itself. Id. at 158-162. Justice Story, writing for the Court, began the analysis in Smith by observing that piracy can either be defined by municipal laws or by the law of nations. Id. at 159 (citing The Federalist No. 42 (James Madison)). When piracy is defined by the law of nations, the Court continued, it is no less clear what Congress has proscribed than if Congress had decided to expressly list the elements of the offense. Id. at 159-60. In reaching this conclusion, the Court found that relying on “the law of nations” for a definition of piracy was no different than having to rely on the common law to understand what “malice aforethought” means in the proscription of murder. Id. at 160. The Court concluded that the constitutional grant of authority to Congress to define piracies required Congress to “enumerate the crimes which shall constitute piracy; and this may be done, either by a reference to crimes having a technical name, and determinate extent, or by enumerating the acts in detail upon which the punishment is inflicted.” Id. Having concluded that Congress sufficiently executed its authority to define and punish piracy in proscribing piracy by reliance on an outside source with a determinate meaning, the Court next set out to determine whether “piracy as defined by the law of nations,” in fact, had such a determinate meaning. Id. at 160-62. To ascertain how the law of nations defined piracy, the Court consulted “the works of jurists, writing professedly on public law ... the general usage and practice of nations ... [and] judicial decisions recognising and enforcing [the law of nations on piracy].” Id. at 160-61. After listing a bevy of sources discussing piracy under the law of nations, the Court found that “whatever may be the diversity of definitions, in other respects, all writers concur, in holding, that robbery, or forcible depredations upon the sea, animo furandi, is piracy.” Id. at 161. Accordingly, the Court concluded that because piracy under the law of nations was “robbery upon the sea,” § 5 of the Act of 1819 “sufficiently and constitutionally” defined piracy by expressly incorporating the definition of piracy under the law of nations. Id. at 162. D. Foreign Case Law The most significant foreign case dealing with the question of how piracy is defined under international law is Ioi re Piracy Jure Gentium, [1934] A.C. 586 (1934). In that case, the Privy Council of England addressed the question of whether an attack on a vessel that does not result in an actual taking of property constitutes the offense of general piracy. Id. at 586. The underlying case arose from a failed attack on a Chinese cargo vessel by armed Chinese nationals cruising in two Chinese junks. Id. at 587. The Chinese nationals chased and fired upon the cargo vessel for nearly an hour. Id. Eventually, with the aid of fellow merchant ships and the British Navy, the Chinese nationals were apprehended. Id. The defendants were thereafter brought before the Court of Hong Kong and indicted for piracy. Id. Following trial, a jury found the defendants guilty of piracy, subject to the resolution by the Full Court of Hong Kong of whether a failed attack, in which no actual robbery occurred, constituted the offense of general piracy. Id. at 588. The Full Court of Hong Kong concluded that robbery was a necessary element to support conviction for piracy, and the defendants were acquitted. Id. The Crown referred to the Privy Council the question of whether a failed attack not actually resulting in a robbery formed the crime of piracy. Id. The Privy Council concluded that “[a]ctual robbery is not an essential element in the crime of piracy jure gentium. A frustrated attempt to commit a piratical robbery is equally piracy jure gentium.” Id. In concluding that the international crime of piracy does not require a completed act of robbery, the Privy Council reviewed numerous sources, including, among other things, treatise writers, English case law, and decisions by the federal courts of the United States. Id. at 588-600. The Privy Council noted that while several eases referred to piracy as “robbery on the high seas,” those cases most logically had to be read in light of the facts presented in them, which invariably involved a classic case of piracy, namely, an attack upon, and capture of, another vessel. Id. at 591, 596. Moreover, while noting that two prominent cases, the 1696 English trial R. v. Dawson, 13 St. Tr. col. 451, and the 1820 United States Supreme Court decision in Smith, 18 U.S. at 153, at least in part supported the proposition that piracy required robbery, the Privy Council observed that two more recent decisions of the same two countries, namely, United States v. Cargo of BRIG MALEK ADHEL, (1844) 2 How. 210, 11 L.Ed. 239, and The Ambrose Light, 25 F. at 408, supported the conclusion that general piracy included acts of violence without an actual taking. In re Piracy Jure Gentium, [1934] A.C. at 597-98. Lastly, the Privy Council relied on the 1926 work on the matter by the League of Nations. Id. at 599. The League’s sub-committee on the codification of international law had reported that “piracy consists in sailing the seas for private ends without authorization from the government of any State with the object of committing depredations upon property or acts of violence against persons.” Id. After examining the question in detail, the Privy Council concluded that there existed “a gradual widening of the earlier definition of piracy.” Id. at 600. Accordingly, even if the earliest opinions on the definition of general piracy required robbery as an element of the international offense, the Privy Council found that as of 1934, if not earlier, general piracy had come to include acts of violence committed on the high seas, even without any actual taking. Id. The most recent case on this issue outside the United States of which this Court is aware is Ahmed v. Republic, Crim.App. Nos. 198, 199, 201, 203, 204, 205, 207 & 207 of 2008 (H.C.K. May 12, 2009) (Azangalala, J.), in which ten Somali suspects captured by the United States Navy on the high seas were convicted of piracy. The Kenyan Penal Code criminalized piracy both in Kenya’s territorial waters and on the high seas, providing that “[a]ny person who, in the territorial waters or upon the high seas, commits any act of piracy jure gentium is guilty of the offence of piracy.” Ahmed, at 9 (citing Kenyan Penal Code § 69(1)); see also James Thuo Gathii, Jurisdiction to Prosecute Noru-National Pirates Captured By Third States Under Kenyan and International Law, 31 Loy. L.A. Int’l & Comp. L.Rev. 363, 372 (2009) [hereinafter Gathii, Jurisdiction ]. The trial court had found that piracy jure gentium was “a crime with international dimensions.” Republic v. Ahmed, Crim. No. 434 of 2006, at 155 (Chief Mag. Ct. Nov. 1, 2006) (Jaden, Acting Sr. Principal Mag.); see also James Thuo Gathii, Agora: Piracy Prosecution. Kenya’s Piracy Prosecutions, 104 Am. J. Int’l L. 416, 423 (2010) [hereinafter Gathii, Kenya]. “Describing piratical acts as including violence, detention, and the causing of harm or damage, the court invoked the definition of piracy under Article 101 of the LOS Convention for the proposition that the law consists of those acts.” Republic, at 155. On appeal, the High Court affirmed the Principal Magistrate’s Court, stating: I must hold that the Learned Principal Magistrate was bound to apply the provisions of the [LOS] Convention should there have been deficiencies in our Penal Code and Criminal Procedure Code. I would go further and hold that even if the Convention had not been ratified and domesticated, the Learned Principal Magistrate was bound to apply international norms and Instruments since Kenya is a member of the civilized world and is not expected to act in contradiction to expectations of member states of the United Nations. Ahmed, at 10-11 (citing Martin Dixon, Textbook on International Law 76-77 (1990)). E. Treaties. In addition to the developments in United States and foreign law discussed above, there are two prominent international agreements that have directly addressed, and defined, the crime of general piracy. First, in 1958, the United Nations adopted the Geneva Convention on the High Seas (the “High Seas Convention”). The High Seas Convention used as its starting point The Harvard Research in International Laiv Draft Convention on Piracy, 26 Am. J. Int’l L. 743 (1932), which sought to catalogue all judicial opinions on piracy and codify the international law of piracy. Rubin, Law of Piracy, swpra, at 335, 349. Today the High Seas Convention has a total of 63 states parties, including the United States. Article 15 of the High Seas Convention provides that: Piracy consists of any of the following acts: (1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (3)Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article. Geneva Convention on the High Seas art. 15, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 397. Second, in 1982, the United Nations adopted the United Nations Convention on the Law of the Sea (“UNCLOS”). An overwhelming majority of the world, 161 states, are parties to UNCLOS. Somalia became a signatory in 1982, and ratified and/or acceded in 1989. United Nations Website, http://www.un.org/Depts/los/ eonvention_agreements/ convention_overview_convention.htm (last visited Oct. 19, 2010). The United States, however, has not signed or ratified UNCLOS, because of its disagreement with the deep seabed regime set out in Part XI of the Convention. 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 2-2 (4th ed.2004) [hereinafter Schoenbaum]. Nevertheless, the United States has accepted as customary international law the treaty provisions dealing with “traditional uses” of the sea. Id. Article 101 of UNCLOS provides that: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of the facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). United Nations Convention on the Law of the Sea art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397. Therefore, a comparison of the two treaties reveals that UNCLOS defines piracy in exactly the same terms as the 1958 High Seas Convention, with only negligible stylistic changes, and represents the most recent international statement regarding the definition and jurisdictional scope of piracy. In addition, it should be noted that Article 105 of UNCLOS provides: On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. Id. at art. 105. Article 105 of UNCLOS thus reaffirms the continued applicability of universal jurisdiction in the prosecution of piracy. With this historical backdrop in mind, the Court turns to the parties’ arguments. IV. DISCUSSION Count One of the Superseding Indictment charges Defendants with piracy as defined by the law of nations, in violation of 18 U.S.C. § 1651. Defendants move to dismiss Count One pursuant to Rule 12 of the Federal Rules of Criminal Procedure. Defen