NORFOLK, Va. (AP) — A federal judge may have to rule how far Somalia’s territorial waters extend to determine whether the U.S. has the jurisdiction to prosecute three Somalis with the murders of four Americans aboard their pirated yacht.
Defense attorneys for the men contend that Somalia’s territorial waters extend 200 nautical miles from shore based on its domestic legislation. Prosecutors contend Somalia’s territorial waters only extend 12 miles from shore based on an international treaty it has signed.
The discrepancy is important because court filings say the Americans were shot and killed about 40 nautical miles from Somalia in 2011. Prosecutors have said they would seek the death penalty if the men are convicted of murder.
“The United States Constitution does not expressly grant Congress the enumerated power to punish foreign nationals for murder or firearms offenses occurring in the territorial sea of Somalia,” defense attorneys wrote in a filing last month seeking dismissal of murder and several other charges for lack of jurisdiction.
The owners of the yacht, Jean and Scott Adam of Marina del Rey, Calif., along with friends Bob Riggle and Phyllis Macay of Seattle, were the first Americans to be killed in a wave of pirate attacks off the coast of east Africa despite an international flotilla of warships that regularly patrol the area.
The USS Sterett had been attempting to move between the hijacked yacht and the Somali coast when shots rang out aboard the Quest, fatally wounding the hostages being held for ransom.
In a filing Wednesday, prosecutors wrote that when Somalia adopted the Law of the Sea treaty in 1989, it agreed to change its territorial claims to 12 nautical miles.
“While some states registered declarations, reservations, or objections at the time of ratification, Somalia did not,” prosecutors noted in their filing.
Adding to the dispute, the U.S. has not ratified the Law of the Sea treaty, despite the urging of military leaders, the business community and the Obama administration.
Defense attorneys argue that means the U.S. can’t rely on a treaty it didn’t sign to determine Somalia’s territorial waters. They say prosecutors are relying on customary international law to define Somalia’s territorial waters, but they say it isn’t generally accepted that Somalia’s territorial waters only extend 12 miles.
Among other things, they point to the fact that the United Nations notes that Somalia still asserts a 200 mile jurisdiction. Law of the Sea signatories Benin, Ecuador, El Salvador and Peru also continue to claim a 200 mile jurisdiction.
It’s unclear when a judge might rule on the dispute. Prosecutors claim that the motion to dismiss the murder charges shouldn’t even be considered because they say defense attorneys made procedural missteps in their filing.
A jury trial for the men is scheduled to begin in June.
Twelve other men connected with the case have already pleaded guilty or been found guilty of piracy and sentenced to life in prison.
BROCK VERGAKIS, Associated Press