[F]or international lawyers the most interesting questions involve the defense’s apparent invocation of the Geneva Conventions. It’s unclear whether and how Muse would rely on them — perhaps he’ll argue that he’s an unlawful enemy combatant entitled to the protections of Common Article III? It’s hard though to see how he’d be entitled to a provision that applies to non-international armed conflicts “occurring in the territory of one of the High Contracting Parties.” That territorial restriction seems to exclude events on the high seas, or even in a state’s EEZ. But even if Common Article III applied, where’s the violation? Muse was injured, so he must get “humane” treatment, but I’ve yet to see any reports suggesting he was treated otherwise; and any prosecution in the Southern District of New York should meet Common Article III’s minimum standards of due process.
And a quote from a civil rights lawyer who may represent Abduwali Muse, the sole Somali survivor of the latest pirate attack:
I think in this particular case, there’s a grave question as to whether America was in violation of principles of truce in warfare on the high seas,” said Kuby. “This man seemed to come onto the Bainbridge under a flag of truce to negotiate. He was then captured. There is a question whether he is lawfully in American custody and serious questions as to whether he can be prosecuted because of his age.
This is completely fascinating. I wonder how different the precedent would look for pirates’ civil rights at any other time in our country’s history? And I’ve said this before, but I’d love–love!–to see statistics about wartime behavior and behavioral incentives depending on the status of the combatants, countries, and Conventions. If I were a sociologist, this would be my dissertation.