On Nov. 19, 2023, a Bahamian flagged automobile-carrying cargo ship named Galaxy Leader sailed for India from Turkey, via the Red Sea, Southbound. As they made their way past the Yemeni port city of Al Hudaydah, a helicopter operated by members of the Houthi Rebel movement descended and disgorged a team of armed men, who proceeded to take the 25 merchant sailors aboard captive, seize control of the ship, and sail it to the port of Al Hudayah. This was the first action in a campaign of seizure and destruction of merchant shipping which has forced mass diversion of global shipping around the horn of Africa, and jeopardized the personal security of many merchant sailors.
There are two relevant questions here: Whether the Houthi fighters involved in these operations have committed piracy at international law, and whether the U.S. Navy has jurisdiction to enforce the relevant international law against these individuals involved in this series of operations.
The elements of the crime of piracy, per Article 101 of the United Nations (UN) Convention on the Law of the Sea ("UNCLOS") are:
(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 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).”
The Galaxy Leader and her crew were detained by these Houthi fighters, in that she and her crew were captured by these fighters and taken to the port of Al Hudaydah. At time of writing, Jan. 29, 2024, there are no reports of the release of the crew or their vessel. This attack was accomplished by aircraft and directed at a ship. The Galaxy leader was interdicted 50 miles west of the port of Al Hudaydah, well outside Yemen’s maximum 12 mile claim of territorial waters permissible under Article 3 of UNCLOS, and sufficiently outside Eritrea’s maximum territorial claim.
The questions that remain are whether furthering the political aims of a rebellion constitutes private ends, and whether an aircraft in Houthi Service constitutes a private aircraft. One can scarcely dispute that the Houthi movement is not a State, given that the Yemeni government recognized at the UN is the one against which the Houthis are rebelling, however it could be argued that the political motivations of their actions constitute public purposes. This is a subject of considerable debate in legal academic circles. Should the political purposes of non-state actors constitute public purposes for the purposes of UNCLOS, then any entity that avows a political purpose for an attack on shipping may have a ready-made shield from prosecution for piracy. To that point, even the infamous Somali pirates seem to attempt to claim some political purpose, naming themselves, among other things, the “National Volunteer Coast Guard of Somalia”. However, should private purposes turn only on UN recognition, it would deprive popular revolutionary movements or unrecognized states of the capacity to carry out many naval and law enforcement operations necessary to the basic functions of statehood, to include drug interdiction, coastal defense, maritime border security, and safety inspections.
Concerning whether the United States Navy has the jurisdiction to engage in counter-piracy enforcement on the high seas, while it is not a signatory, Yemen is. The relevant text of UNCLOS, Article 105, states that:
“[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.”
This article, in conjunction with the fact that the present government of Yemen is a signatory of UNCLOS, based on the plain meaning of the text, tends to indicate that any state, rather than merely a state party to the convention, has universal jurisdiction to interdict pirates according to their own state level piracy statutes. Therefore, assuming that the court views the Houthis as a private entity acting for a private purpose, not only are they guilty of piracy, but the U.S. Navy has jurisdiction to bring them in for piracy.