Here There Bee (More) Pirates … and Might the Obama Administration Take Them Out?

by Kenneth Anderson

US Navy Confronts Somali Pirates

US Navy vessel confronts Somali pirates, 2006.  Photo credit Chief Petty Officer Kenneth Anderson, USN, open access DOD (no, not me, but we Ken Andersons really get around).

Somali pirates strike again, this time hijacking a Saudi-owned tanker off the coast of Kenya. The running stand off with the hijacked ship carrying arms and a Ukrainian crew continues; Russia announces that it repelled an attack on a different Saudi vessel.  VOA describes the number of attacks and hijackings this year:

International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked.  The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks. 

I’ll post more on this later, but let me put out a query now:  Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law?  No use of force question is ever truly easy – law of unintended consequences always in effect – but clearly this is a rising issue, and one in which the vessels of many nations have been attacked and continue at risk.  

Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain.  I am not alone in thinking this an ignominious day for Britain.  But it is a double whammy for unintended consequences: it is unlikely that it was ever intended that asylum law would be read to create a municipal duty for Britain regarding detentions for piracy off the coast of Africa – but it was equally unlikely that it was ever contemplated that a state would appeal to asylum law in order to abandon what might otherwise be seen as an affirmative international law duty to maintain the law of the seas.  

There are many legal questions here, of course.  But I had a conversation with a US Navy officer, not a lawyer, but someone with operational duties, who suggested that the best military course of action would be to equip some number of civilian vessels as decoys – heavily armed and carrying marines.  The best thing, he said, would be for Somali pirates to attack, and then be aggressively counterattacked, in a battle, not the serving of an arrest warrant – sink their vessel and kill as many pirates as possible.  It would send a message to pirates that they could not know which apparently civilian vessels might instead instead counterattack.

I asked whether this wouldn’t create the usual problem of increasing risks to civilians – i.e., the risk to civilians heightened when guerrillas mingle with civilians in civilian clothing.  But, as he pointed out, on the contrary, this increases the safety for civilian vessels by raising the risk to pirates – in the case of armed escort, the pirates know which ships are protected and which are not.  If the pirates do not know which apparently civilian ship might actually be armed and ready to attack them, they must be far more cautious.  

Moreover, the use of overwhelming force aimed at killing them at the very moment the attack is commenced is most useful, before they can board and take hostages, and killing them rather than taking them prisoner and turning them over to local justice systems that do not impose great risks on them.  The greatest risk posed by pirates is once they have boarded – that is when their firepower is maximized by having hostages; they are at their weakest when still in their own vessel, and that is the moment to strike – as they commence their attack and can be sunk in their vessel yet have no hostages for bargaining.

I also asked why not use Predator drones and patrol from afar; he responded that such invisible patrols were useful, but that the fundamental operational problem was that once the pirates were aboard, they then had hostages and the whole situation changed.  In effect, the attack could be treated as pure battle until the pirates had hostages, but then it turned operationally into counter-terrorism and hostage-negotiation.  It was therefore crucial, in his view – he had studied earlier rounds of piracy in these same waters, in which incidents had gone down because Japan and other states starting arming and training crews to fight back – that the pirates be confronted before they boarded and took hostages, and a Predator was unsuited to that task.

I would be interested in comments from anyone with operational experience as to whether this is correct. 

But there are a number of ways in which an Obama administration might make its mark here.  

  • One is to act in a way to demonstrate that the operation is a military one within the traditional law of the sea responding to piracy – one fights and detains any who survive in order to prosecute, but the operation is not law enforcement as such.  (And the law used to prosecute could usefully be the traditional law of piracy – common enemies of humanity, etc.)
  • Second, the US can demonstrate the traditional US commitment to the rule of international law on the high seas and freedom of the seas.  
  • Third, it can act with allies and friends – India, for example – to create patrols and the reinforcement of multilateral sovereign duties; many countries find their vessels and interests at stake here.  It might even manage to re-acquaint the British government with its international law obligations, by making clear through joint declarations of states undertaking patrols that asylum is not an option.  
  • Fourth, it might even find a way that the US could support the ICC without triggering the usual issues for the US, by sending (or at least opening discussions on sending) captured pirates to trial at the ICC.  (I should report, full disclosure, that I am, alas, one of those recalcitrants who think the US should stay out of it, support the servicemen’s protection act and oppose its repeal, oppose de-de-signing of the Rome Statute, etc., but am interested in seeing ways in which the US might still usefully cooperate with the ICC on mutual matters of international justice; although I think a traditional customary law court-martial of pirates at sea followed by (televised) hanging has its advantages, too.)

There are obviously many serious international law questions here.  But I would also flag in advance that we law of wars lawyers need to bear in mind – I include myself emphatically in this admonition – that we have focused almost entirely on the law of land warfare, and that the law of armed conflict on the seas is its own distinct body of law and doctrine.  Big mistake to assume that, as a legal matter, it is the same.  (More on these subjects later.)

http://opiniojuris.org/2008/11/17/here-there-bee-more-pirates-and-might-the-obama-administration-take-them-out/

35 Responses

  1. Isn’t the Officer’s suggestion of armed decoy ships much like the usage of Q-ships in WWI & II? See here; http://en.wikipedia.org/wiki/Q-ships

    Sounds like a great idea to me.

  2. “The British have instructed their navy to ignore pirates”. How do you square this statement with the Brit navy shooting & killing two pirates last week, defending a Danish cargo ship from attack?

  3. Frankly, it’s about time those free-riding nations that rely on the USN for freedom of the seas (a duty once held by the Royal Navy) had to put up their own assets and money!  Time to draw down that function outside of US regional waters and let the Brits, French, Spaniards, Italians, etc. police that region!!

  4. Hijacking is just a cost of business.  If the shipping companies cared they would spend the money to protect the ships.  They don’t.

  5. Lets put some of those profit-motivated capitalists to work.  I bet Blackwater could field a pretty good Navy.

    http://en.wikipedia.org/wiki/Letter_of_marque

  6. Response…
    Anyone interested in US naval doctrine regarding the law of naval warfare should look at the Commander’s Handbook on that subject, http://www.nwc.navy.mil/cnws/ild/documents/1-14M_(Jul_2007)_(NWP).pdf.  It’s a tri-service (USN/USMC/USCG) publication and covers the use of force across the spectrum of maritime contingencies, including piracy.

  7. Isn’t the British order to ignore pirates a violation of UNCLOS?

  8. Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain.

    As we all know this is not possible because pirates sail under no flag.

  9. Unfortunately, once on board European vessel, pirates will derive rights under the ECHR.  While ECHR does not mention the right of non-refoulement, it has been applied as if such a right attaches to the other rights within ECHR, i.e. you can’t be returned for trial to a territory where your article 5 (right to fair trial) rights are unlikely to be upheld.  Consequently, if you as a European Navy arrest any such pirates, short of setting them free (i.e. landing them on a beach), you’re going to be stuck with them.

  10. “Consequently, if you as a European Navy arrest any such pirates, short of setting them free (i.e. landing them on a beach), you’re going to be stuck with them.”

    You can take them back to your home country, try them for piracy and put them in prison. 
    In general, Anderson doesn’t seem to know what he’s talking about here, frankly. That story about the RN being ordered to ignore pirates is a) six months old and b) complete nonsense – as the recent firefight demonstrated – but for certain elements of the right wing it’s a great excuse for a bit of harrumphing about human rights laws making everyone soft and liberal and what about Britannia ruling the waves, eh? Blasted left wingers.

  11. Let me rephrase the solution you proposed above: let’s instruct our military to intentionally kill civilians for the purpose of intimidating other civilians.

    No matter how odious the pirates are, I think that’s an invitation to a war crimes indictment or, perhaps worse, the creation of a potential defense for terrorists during their prosecution. If the United States can intentionally terrify a foreign population with murder, why can’t Al Qaeda? Simply because they don’t fully control a nation-state?

    IMHO, under intentional law there’s simply no way to ‘legitimately’ execute civilians without due process. Although that presents problems in the short run, we should all be glad for that.

  12. The idea mentioned is exactly like the Q-ships of old.  A Q-ship could float around for months without being attacked, making it a very expensive attempt with little chance of a pay off.  A greater effect would be for more shipping companies to protect their ships with armed contractors.  Add the uncertainty into the pirate’s minds.  However, using private contrators would then buy the same issues we see in Iraq with Blackwater and other contractors, only in international waters. The area is just too great to be patroled by navies, and the pirates will go to where the navies are not (as seen by the hijacking of the Saudi tanker).  Plus, with a coalition of navies patroling, you have different ROE for each navy which makes life very confusing and difficult for the commanding officers of the ships involved. More uncertainty injected into the situation on the part of the good guys. 
    It took all nations in the region to hit this problem a few years ago in the Malacca Strait off Singapore and Indonesia. As long as the pirates have safe haven in the ungoverned Somali coast, it will be tough to beat the problem. Allowing pursuit into the territorial waters has helped, but not solved that problem.
    The bottom line is that most nations and companies are more willing to negotiate a ransom to get their ships and cargoes back, than they are willing to pay the cost to arm and protect their ships and cargoes.

  13. In response to Max’s artful re-wording, I don’t think that is what the Squid is proposing. Rather than killing civilians, it sounds like a floating ambush targeting criminals.

    It is not as easy under international admiralty law to assume the pirates have similar criminal rights as their land-based counterparts. Actually, I think you could draw a comparison between the pirates of old (lacking a nation-state, targeting humanity, etc) to the modern non-state terrorist organizations. I imagine if you look at how the US has ‘bent’ some traditional laws (civil rights as well as sovereignty) in pursuing terrorists,  but imagine a similar action occurring against ‘pirates’ that had specifically targeted US shippers, there would not be the same hue and cry.

    In dealing with piracy, the US might also consider redefining the correlation to other terrorist acts, and by doing so help justify treating terrorists not as criminals but as enemies of humanity/commerce/etc.

    That said, I agree with the proposition that clearly carriers don’t care enough about the cost of piracy to do anything other than pay ransoms (or require their insurance carriers to do so).  If they are willing to absorb the cost, I don’t see why the taxpayers should voluntarily assume the duty.

  14. The officer’s suggestion sounds a lot like what the American Navy did to solve the problem of the Barbary pirtes. They loaded the USS Philadelphia with explosives, allowed it to be captured as a fat prize then blew it and many of the pirates to kingdom come. Something of a similar nature carried out by the US Navy seems to have merit, but rather than blow the ship and pirtes, ambush them after a false surrender with overwhelming numbers and force, perhaps hidden special opps nearby. Have no civilians on board, there by eliminating the hostage situation. Force and the gallows was the only thing that deterred 18th century pirates, and even then they really had to be hunted down to put an end to the threat. How about enforcing international law so that illegal trawlers are banned from Somlai waters thereby allowing the fishermen who guide the pirates some legal work?

  15. Response…
    well, 33 ships captured… how much percentage of total naval traffic it is?1%? probably less…
    what would be economical costs of stationing armed guards on all ships circumnavigating horn of Africa?
    full year pay mercenary unit of say 10 is like 300k$
    if chances of pirate takeover is  say 1% that means 10kk$ ransom is 3 times cheaper
    alternative is to strike deal with Russian Navy:
    we pay for  fuel ammo and even fund a few lend-lease frigates for you, you kill anybody with ak-47 and rpg-7 on those waters, no questions asked :)
    nobody will try them in any courts because they are Russians, not “filthy US imperialists”, and even if somebody tries Russia doesnt extradict their citizens.

  16. Actually, USS Philadelphia was captured because she ran aground. Commodore Preble then sent Stephan Decatur and USS Intrepid on a mission to burn her at anchor. The Intrepid was later used as a fire ship and blew up.

  17. Does anyone know which states have and haven’t ratified the 1958 UN Convention on the High Seas, and in particular whether the U.S. has?  To be clear, I’m not talking about the LOST treaty, the continuing negotiations over which I’m aware of.  For states party to it, it would form one large (and fairly permissive) part of the governing law.

  18. To ajay…

    I mean “stuck with them” in the sense that the capturing ship would, if it wished to prosecute, have to take them back to its own country and it would be there that they would remain.  Why?  Because after the trial and completion of whatever sentence was handed down, the pirates would naturally apply for asylum.  Is any European nation going to turn down that application and deport convicted pirates back to Somalia?  Well, they may try but I guess they would be unsuccessful.  So, yes, it is correct to say that you would be stuck with them. 

  19. “Because after the trial and completion of whatever sentence was handed down, the pirates would naturally apply for asylum. Is any European nation going to turn down that application and deport convicted pirates back to Somalia?  Well, they may try but I guess they would be unsuccessful.  So, yes, it is correct to say that you would be stuck with them.”

    a) Piracy carries a life sentence; so we’re not talking about an immediate problem here.

    b) You obviously don’t know very much about asylum law.

    A pirate – or any other Somali – can’t claim asylum simply because “I don’t want to go back to Somalia because it’s not very nice there”.

    If we were extraditing pirates back to Somalia FOR TRIAL, they could appeal on the grounds that they wouldn’t receive a fair trial in Somalia. If we were deporting back Somali dissidents, or members of an ethnic minority, they could appeal on the grounds that they would be subject to persecution in Somalia.

    But neither of these would apply to a Somali pirate who has served a sentence in a UK prison and then been released. He would have no right to remain in the UK and no well-founded fear of persecution in Somalia.

  20. I agree with Josh.  PMC’s issued with Letters of Marque could change the dynamic.

    One question… I have not seen any report on what flag (if any) the pirates are flying.   Has anyone seen anything?

  21. Convoys.

    The various navies should get together and organise convoys going in each direction.

    Worked against U-boats and surface raiders in two world wars, and the napoleonic wars.  Why not use them against pirates?

  22. Response…Max Kennerly does not seem to recognize a right to self-defense. Pres. Reagan, among others, said that, “Self-defense is not only a right, it is a duty.” When one has thought that through thoroughly, it becomes clear what sort of character would bring a war crimes indictment for such. Armed merchantmen are not set-guns.
    Max Kennerly also seems to appeal to that hoariest of leftist gambits, the Moral Equivalence assertion. Surely, the rest of us have no trouble distinguishing between the United States Marine Corps and Indian Ocean Pirates. What is it with people these days?

  23. Response…
    IN showed us how to do it… just follow procedure:
    1.order to halt any suspicious vessel encountered
    2.board to search for weapons
    3.if weapons found or observed thrown overboard, sink the ship after removing crew (to be beached in mainland Somalia)
    4.if encountering armed resistance, sink the ship without removing crew :)

  24. well, 33 ships captured… how much percentage of total naval traffic it is?1%? probably less…
    what would be economical costs of stationing armed guards on all ships circumnavigating horn of Africa?

    Probably a lot less than the cost of having your fleet sail around the Cape instead of using the Suez as one Norwegian company has just done in response.  I think it’s not something the shipping companies are ignoring and thinking are ‘just the cost of shipping’.

    Convoys!  Brilliant!

  25. ajay

    Firstly no need to be insulting.   

    Secondly, piracy = a life sentence.  Get real, what European domestic court is going to hand down a life sentence for piracy? 

    Asylum claims can be made for a number of reasons and some may be turned down (e.g. UK court’s decision last month) but given the growing instability in the country (e.g. TFG saying that Mogadishu is about to be lost), I think the chances of a successful appeal against a deportation order are high.

    Hence stuck with them.  Besides which doesn’t having Somali pirates in domestic prisons = stuck with them?

  26. What needs to be done is PRE-EMPTIVE action!!

    We’ll hunt down those that are most likely to be pirates and bomb them to oblivion.
    We’ll shock the crap out of these axis of ruthless pirates and awe the world of our determination to cleanse the high seas with these scum.

    Fire-hoses? Are you kidding me? We’ve got more depleted uranium than we know what to do with. Why not donate them on these bozos — at 3000 feet per second.

  27. Why can’t the USS Dwight D. Eisenhower be taken off station from the Persian Gulf to do patrol duty off the Somali coast?

  28. PUT A HIGHLY NIGHT CAPABLE,AUTOMATED AND FULLY STABLIZED CAL. 50 WEAPONS STATION (C.W.S.) WITH IT’S LASER RANGE FINDER ATOP EVERY OTHER VESSEL. THEY ARE READILY AVAILABLE AND IT CAN BE EASILY DISGUISED, (THEY ARE SMALL ENOUGH TO HAVE THEM ON HUMMVES AND COUGARS IN IRAQ.) THE GUNNER CAN ENGAGE REMOTELY FROM  A PROTECTED POSITION IN SIDE THE VESSEL. AND THE RANGE IS WELL BEYOND TRACER BURN OUT OF:(2,250 BALL, 1,650 A.P.I.T.!) 4-5 TIMES THE RANGE OF THE PIRATES CAPABILITY! AND 80% OF EVERY ROUND FIRED HITS IT’S TARGET! AND UP TO 3,000 ROUNDS (OR MORE)CAN BE READILY AVAILABLE, WITH NO RELOADING! MY 9 YEAR OLD GRAND SON COULD OPERATE IT LIKE A VIDEO GAME! NUFF SAID? ALLONS! GUNNER
    BLACK WATER!  M.P.R.I. YOU LISTENING?

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