UN Authorizes Attacks on Pirates on Land or Sea

by Kenneth Anderson

The UN Security Council has passed unanimously a US drafted resolution authorizing attacks upon pirates, whether by land or sea.  It is one of those rare security issues in which the great powers, and many small ones, have been willing to come together, at least in granting authority.  As the Washington Post reports:

The U.N. Security Council voted unanimously Tuesday to authorize nations to conduct military raids, on land and by air, against pirates plying the waters off the Somalia coast even as two more ships were reportedly hijacked at sea.

The vote represented a major escalation by the world’s big powers in the fight against the pirates, who have disrupted commerce along one of the world’s most active sea routes and acquired tens of millions of dollars in ransom. It came as China — which has had several ships commandeered in recent months — said it is seriously considering joining U.S., European and Russian warships policing the region.

The U.S.-drafted resolution authorizes nations to “use all necessary measures that are appropriate in Somalia” in pursuit of pirates, as long as they are approved by the country’s transitional federal government. The resolution also urges states to deploy naval vessels and military aircraft to carry out the operations, and it calls for the creation of a regional office to coordinate the international effort.

U.S. Secretary of State Condoleezza Rice, who personally pushed for the resolution’s passage, said the vote sends “a strong signal of commitment to combat the scourge of piracy. Piracy currently pays. But worse, pirates pay few costs for their criminality; their dens in Somalia provide refuge from the naval ships in the Gulf of Aden.”

The difficulty is that moving on from diplomatic agreement to actual action, beyond sending warships to police the vast area, presents many practical problems.  Many of them are logistical – the area of ocean is huge, the targets dispersed, but easily identifiable to pirates increasingly equipped with more and more modern gear.  Some of them are legal – the US tends to take a middle road on the rules of engagement involving force, as between the Western European tendency to avoid force in this as in nearly everything else, on the one hand, and what might be a heavy handed assault tendency on the part of Russian, or perhaps Chinese, special forces, with many possibilities of loss of hostage (ie, civilian crew) lives and potentially even more as collateral damage if attacks took place on land, in the ports.  

But there is a still further political problem that might arise:  so far, the pirates have not made political claims, apart from various claims about loss of fishing grounds, etc.  But if attacks were to come on them in a serious way, particularly on land, in their ports, with risks to civilians, it would not be surprising at all if the conflict were suddenly politicized, and if the pirates began making claims of autonomy, struggles of national resistance, anti-colonialism, etc.  Sure, the Security Council would presumably not be impressed, but these kinds of claims obviously might resonate in the port towns themselves, among the civilian population that has been, so far, mightily impressed with the brazen actions of the pirates and even more impressed with the ransom hauls.  What looks today to be simply the imposition of order on criminals looks tomorrow like a guerrilla struggle of sorts.  

And it wouldn’t be surprising if the stakes were raised very quickly around the fate of the hostages – those being held now and hostages taken in the future.  Up to now, the fact that ransom has been paid without a lot of fighting, resistance, or struggle has helped induce the pirates to treat their victims reasonably well – playing into the light hearted brigand image, people aren’t really getting killed and all.  This is all just a matter of financial extortion of international insurance companies.  But that could very quickly change – and if that started to tip, then international forces would have to be prepared, presumably, drastically to up their interventions, both to protect hostages and potential hostages on vessels (because the pirates would now have an incentive to grab as many as quickly as possible), to reduce the ability of the pirates to go to sea or go to great distances at sea.  The question is whether anyone would want to intervene on land, with all the pitfalls that raises.

So it is one thing to have an agreement in principle that force is authorized.  It is another thing for someone to step up and use that force; all the usual freeriding problems arise, as well as the inevitable sniping at whoever (read US) uses force, to say post hoc that it could surely have been done with less damage.  And it is still another thing for the US to agree that the use of force, or plans for it, is sufficiently controlled in its strategic aim and its tactical rules of engagement; what the US believes is sufficiently controlled and what the Russians think might not be completely in synch.  That, in a situation that is far more politically complicated on the ground than the vast majority of us understand.  

I’ve suggested on this blog that the Obama administration might see pirates as a matter in which it could show its new approach to multilateral issues involving the potential use of force, and I still think that’s right.  But, although not an Africa specialist in any sense, I do understand, from conversations with people in the US military as well as area specialists at places like the Rift Valley Institute, that it is a much more complicated potential operation than meets the outside eye.  On the other hand, the longer the local economies have to adjust to life as pirates, becoming dependent upon ransom and booty, the harder the structure will become to change in the future.  I hope the Obama administration will see this as something that urgently needs to be done, as well as an opportunity to show its new multilateralism in a situation where that is exactly what is called for.  But it also needs to heed very carefully the practical advice of people close to the ground.

http://opiniojuris.org/2008/12/17/un-authorizes-attacks-on-pirates-on-land-or-sea/

4 Responses

  1. Ken, I haven’t been paying as much attention to this as I should, but what exactly is the point of the UNSC resolution? Couldn’t any nation go in to Somalia’s airspace and territory with the Somali government’s consent, prior to this resolution? So what difference does this make? Wouldn’t it be more useful to have a UNSC resolution giving broad authority to nations to enter Somali territory in pursuit of pirates, with or without consent? 

  2. I have been following piracy for centuries, so to speak, so I’m particularly interested in the latest upsurge.

    The Security Council resolution and writes about will probably not make much of a difference. A Security council resolution passed six months ago authorized the use of force — within Somali territorial waters (“all necessary means to repress act of piracy”). Nations have not been eager to use this authorization. The principal exception has been the sinking of alleged pirate vessel by India a few weeks ago. It turned out to be a Thai fishing trawler. Given that pirates’ principal theater of operations is the water, I doubt the latest resolution adds much.

    It does raise fascinating issues. Pirates are international criminals, not combatants. The resolution, it taken literrally,  authorizes bombing suspected pirates. That’s an odd way to deal with criminals. The US admiral in the Gulf of Aden criticize the resolution is very likely to result in civilian casualties. Indeed, it sounds like what elsewhere would be called “targeted assassination.” Indeed, the Pirates aren’t even the worst criminals — they’re not even murderers.

    I do not know whether the Security Council can authorize the extrajudicial killing of civilian criminals, but the expedience with which it passed these resolutions and the lack of debate they generated suggests a very selective concern about these issues.

  3. I aggree with Julian’s comment. Similarly, I haven’t followed the situation too closely, but taking a quick look at the UNSC of 16 December, it makes it more than clear that this “authorization” is based on the previous formal request for international assistance in carrying out “all necessary measures” to deal with piracy and armed robbery at sea, previously issued by the Somali TFG on 9 December 2009.

    (But probably the UN/multilateral blessing is necessary to strengthen primarly the domestic political case for the (US) armed action.)

    I suppose that also (at least partly) explains the unusually quick and large support for the resolution. It didn’t really change things all that much in legal terms, at least in the classic sense of sanctioning a potential Article 2(4) violation, as there probably wouldn’t be any as long as the actions taken would be in accordance with the TFG’s request. Even the UNSC itself more then once explicitly reiterates that the TFG’s consent sets the limits for action, all within the “outer” limits of the applicable HR and/or IHL frameworks.

    Thus, and with reference to Eugene’s comment, I also don’t think the SC did attempt to authorize any such thing as targetted killing, as the action (even when in agreement with the TFG) cannot exceed the HR/IHL standards (depending on what particular regime is applicable to the factual situation on the ground – either the law enforcement or armed conflict situation). Of course, the interpretation of facts and whether what is happening at any given time is a LE or AC situation will probably prove difficult, as always, but that does not depend on the UNSC in any case. 

    One part of the resolution that I find particularly interesting (and also related to Julian’s comment on the “broader” authorization) is the operative paragraph 10 stressing the “exceptional” nature of this resolution and in my mind worth quoting in its entirety: “[The Security Council] affirms that the authorization provided in this resolution apply only with respect to the situation in Somalia and […] underscores in particular that this resolution shall not be considered as establishing customary international law, and affirms further that such authorizations have been provided only following the receipt of the 9 December 2009 letter conveying the consent of the TFG“.
    Indeed, many interesting issues arising out of this resolution and I hope that a wider discussion will follow.
     
     
     

  4. Because the TFG’s consent cannot expand the Chapter VII powers of the Security Council, I am wondering why we are not questioning the underlying authority for the Security Council’s action.  If the entire world is against this Somali pirate phenomenon, then how does it constitute a threat to the peace, breach of the peace, or act of aggression?  Are we prepared to say that breaches of the peace or acts of aggression may always include actions by non-state actors, even when not politically/idealistically motivated?  That seems a potential expansion of the Security Council’s powers into areas of traditionally municipal/domestic concern.  While I am pleased to have more fodder for classroom discussion and examination purposes, I am uncertain of the propriety of the action, even if the world does not currently see its potential dangers.  Recall that Jefferson later cursed the Marbury v. Madison decision because the innocuous result in the case did not raise immediate concerns.  Whether rightly or wrongly decided (I think rightly), he did not foresee the monumental implications to the separation of powers.  Do we not court the same “danger” here?

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.