Taking Pirates Seriously

by Duncan Hollis

For the last few weeks, popular culture has become reacquainted with the less romantic side of piracy. (For the romantic side, picture my 2 year old running around my living room — yes, this Thanksgiving morning — dressed with eye patch, bandana, “puffy pants” and a plastic sword yelling “arrgh” at the top of his lungs.)   But, with seizures of Ukrainian weapons ships and Saudi supertankers, piracy has become serious business once again. For an image of how serious, consider the fate of the Thai fisherman killed by an Indian navy vessel that engaged their ship thinking it was a pirate mother-ship, but which may have only been recently the victim of piracy itself. 

So, what to do?  Ken’s already proposed this as low-hanging fruit for the incoming Obama Administration.  Meanwhile, Bret Stephens of the WSJ hints it may be time to go back to the old rules – i.e., hang ‘em:

Pirates, said Cicero, were hostis humani generis — enemies of the human race — to be dealt with accordingly by their captors. Tellingly, Cicero’s notion of piracy vanished in the Middle Ages; its recovery traces the recovery of the West itself.  By the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: “A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained.”  Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century — a civilizational achievement no less great than the elimination of smallpox a century later.

Today, by contrast, a Navy captain who takes captured pirates aboard his state-of-the-art warship will have a brig in which to keep them securely detained, and instantaneous communications through which he can obtain higher guidance and observe the rule of law.  Yet what ought to be a triumph for both justice and security has turned out closer to the opposite. Instead of greater security, we get [a] deteriorating situation.

At the other end of the pole is a proposal from Bruce Virgo, a shipping lawyer and partner at HBJ Gateley Wareing — a new, anit-piracy international organization:

“The international effort to stop piracy in areas such as Somalia has clearly not worked and urgently needs to be stepped up into a higher gear. While there are many states attempting to tackle piracy, even working co-operatively, there is not a single structured international body with any teeth to co-ordinate activity and fight these criminals. Hence the call for the establishment of an international body to tackle piracy, with Scotland ideally placed for one of its locations. The time to propose such a body is now, while the public and various states share the awareness of what has been happening.”

Bruce envisages the body comprising participating states and be multi-disciplinary consisting of military and police personnel, as well as legal, financial and political involvement. Ideally a UN entity, although there is a realisation that this may not be possible in sufficient time, the body could be run under a UN sanction by, and answer to the states that agree with, and contribute to the creation of the body. It could be operated from various locations, in Scotland, Australasia and North America which all offer stable and secure political and geographical locations, each being responsible for its own geographic/time zone sectors. The operation would be divided into four sections: intelligence; planning and operations; funding and asset recovery and political. Sharing intelligence with co-operating states and existing external bodies, it would co-ordinate activity for planned operations by the various state or UN forces, without the need to necessarily maintain an operational unit itself to carry out direct activities.

Putting aside the gratuitous plug for locating this IO in Scotland (because Philly would clearly be better!), I wonder whether this last proposal has any legs?  There’s the logistical problem that the piratical acts drawing so much attention aren’t occurring anywhere near “Scotland, Australasia, and North America” but off of Somalia with the absence of a recognized government that can undertake on-the-ground efforts (and where states like the United States have already learned the hard way how difficult it is to project force).  Given the economic crisis, I’d suspect states will be hard pressed to devote resources to form a new organization when they already have existing resource and capacity restraints in combating so many other global problems.  At the same time, I doubt we’re headed back to hangings from the yardarm.  Still, the reality is Somali pirates have become a serious problem.  Some solution is needed.  Will it be a multilateral one?  Or, will some state (Germany?) step into the breach?  Perhaps readers have their own ideas on what we should do?  Comments welcome.

http://opiniojuris.org/2008/11/27/taking-pirates-seriously/

One Response

  1. I think that piracy is a lot more ambiguous. Are pirates enemies of (hu)mankind? History shows that pirates can also gain legitimacy, the Barbary States of Tunis and Algiers for example gained recognition by the US in the 18th century. Here piracy changes in nature, from private greed into being publicly respected while still engaged in piracy.
    As for solutions…….An Anglo-Dutch fleet was ordered to execute a bombardment on Algiers when the Europeans had finally had enough of the piracy. The pretext was to stop the enslavement of Europeans.

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