Why the Piracy Police Isn’t Working

by Eugene Kontorovich

[Opinio Juris is pleased to present this essay by Professor Eugene Kontorovich of Northwestern Law School on the relationship between international law and anti-piracy efforts.  Please be sure to click "continue reading" to read the whole essay.]

The successful ransom by Somali pirates of a Ukrainian freighter laden with arms and armor is indicative of the broader failure of the massive international anti-piracy effort. Because of the important nature of the cargo, the seizure of the Faina was said to be a bridge too far for the pirates – the seized vessel was ringed in by a small flotilla; with the most powerful navies in the world bearing down on them, the pirates, it was said, could not win this one.

The ransom of the Faina can only be understood on the background of the pathetic spectacle playing out everyday in the Gulf of Aden. A naval force from over 20 powerful nations is there to put down a piracy problem that threatens to cripple world commerce – 1/3 of which transits through the Gulf. Western navies are finding and stopping the pirates, only to let them go —  in one case, even giving them a ride back to port. While pirates are international criminals that any nation can prosecute, none of the countries patrolling off Somalia has done so.

 Today international law seeks to resolve massive problems like genocide and decades-long ethnic conflicts, but is proving incapable of dealing with maritime mugging. It is important to understand why the piracy police is just twirling its baton.

The gravity of the problem can be seen from unprecedented measures by the U.N. Security Council and by Great Britain in December, which I describe in a new ASIL Insight. International law normally limits efforts against piracy to the high seas. However, in its fifth resolution on the pirates in 2008, the U.N. Security Council authorized, at America’s urging, all states to attack suspected pirates even in Somali territory, even on land. London has signed a remarkable agreement with Kenya whereby any pirates captured by it would be tried in Mombasa. (The U.S. and Britain have already handed over two groups of pirates for trial there.) What the two initiatives have in common is a serious dissatisfaction with the current international legal regime.

International law has for centuries authorized any country that comes across pirates to prosecute them. This is called universal jurisdiction. Universal jurisdiction still applies to pirates, and nations nominally have an obligation to combat piracy. However, another set of more recent international rules and expectations make this much harder than in the Age of Sail.

Until recent decades, pirates were both international criminals and enemy combatants. They could be prosecuted or fought, as was convenient. Today, under the United Nations Convention on the Law of the Sea, pirates can only be punished judicially. Pirates must be given all the protections of criminal defendants but still may enjoy many of the privileges of the Geneva Conventions.

Two recent prosecutions of Somali pirates in Kenya reveal some of the pitfalls. Universal jurisdiction only applies if the suspects are in fact pirates.  Yet in court, pirates claim that they are simple fishermen, accidentally swept up by a foreign flotilla. Indeed, most pirates are fishermen, moonlighting. Even if they are found heavily armed, having guns on a Somali boat is not an international crime.

Furthermore, the pirates would have to be afforded a panoply of criminal rights. Even finding lawyers or translators for the various Somali dialects is not an easy task. Witnesses to the crimes – the crews of international freighters – would have returned to their home countries. The defendants would be able to call the prosecuting nation’s naval officers from their duties to testify. The capturing forces would have to preserve evidence in a manner fit for trial; but navies are trained for war-fighting, not law-enforcement.            

If caught by the U.S., the pirate may be the beneficiary of a host of constitutional rights. If the caught by an E.U. vessel, the pirate could request asylum, since his human rights would most likely not be respected back in Somalia.

The pirates seem to have been studying the Gitmo playbook. In the two cases brought so far, the pirates alleged that they have been tortured and prevented from performing Islamic rites. Regardless of whether these allegations are true, they revealed the swamp pirate prosecution can become.

 “They can’t stop us – we know international law,” a Somali pirate was quoted by the New York Times as saying. There is too much at stake to continue playing catch-and-release with the pirates.  Apart from the economic damage, piracy tests whether international justice can respond in real time to crimes it has deemed universal. The recent Security Council resolution suggests the world community thinks bombing  potential pirates – despite the high risk of civilian casualties – is easier than prosecuting them. Britain prefers outsourcing the prosecution to Third World states.

Yet if international justice and universal jurisdiction fails here, it will be hard to take it seriously elsewhere. Thus members of the international naval force should themselves bring the offenders they catch to justice. Some of the difficulties can be addressed by shipboard court-martials, or by bringing to Kenya the precedent of the special court created to try Libyan agents in Lockerbie air bombing: Scottish judges held court in a base in Holland designated part of Britain solely for the purposes of the trial. But ultimately, the international community will have to accept some of the difficulties prosecuting pirates. If a thousand or so disorganized robbers cannot be brought to international justice, the war criminals of the world have little to worry about.

http://opiniojuris.org/2009/02/09/why-the-piracy-police-isnt-working/

4 Responses

  1. Eugene, welcome and delighted to have this essay at OJ!  Plus, I suppose, one of these days the Chinese or the Russians will decide they are tired of playing around by EU/US niceties and send in commandos who will not leave much to try in court.  One should not be surprised if much of the rest of the world were to applaud, noisily or tacitly – and take due note of the ‘stronger horse’.  

  2. Excellent thoughts Eugene.  I have been collecting piracy articles for some time.  I am curious though.

    A nagging thought I have reading this is that one could very nearly substitute “terrorist” for “pirate” in your essay and describe the problem the world faces in ridding itself of the former.  I am uncertain why you believe shipboard courts-martial will not suffer from the same difficulties and defects as you describe for land-based trials.  The evidence will not be any better right next to the alleged fishing boat than it will be months later in a foreign country.  At the end of the day, one still requires adequate proof that the individual undergoing trial is indeed guilty of a crime.  Modern courts-martial do not dispense summary justice or make use of presumptions of guilt.

    At the end of the day, it seems that what you are saying is that we might face the no-win situation of summary justice or armed attacks, both resulting in what one might call ‘collateral damage’ to innocents.  What is it about piracy that will make it more palatable to the world than it appears to be for suspected terrorists?  While I recognize the way much evidence was obtained in the cases in Guantanamo makes that process more suspect, your essay discusses trials where such evidence was never obtained, no direct evidence of guilt exists, and circumstantial evidence is inconclusive at best.  This is the exact place many trials at Guantanamo would be without coerced evidence or confessions.  Would we be any happier with that process if it were to convict suspected terrorists without any solid evidence of culpable complicity in a specific crime?  Are you suggesting that the world would more readily accept summary justice if it occurred on the high seas rather than someplace where we would expect more due process to attach?  Forgive me if I am misreading your essay but this is what it conveys to me.

    I suppose that the world may very well look the other way given that we are dealing with pirates lacking Johnny Depp’s charm or the good looks of Orlando Bloom and Keira Knightley.  I just wonder what you think of the implications of this course for the rule of law.  Do we want to manage this problem through what some would call the extra-legal processes of the UN Security Council?  Perhaps we should be looking to restructure the UNCLOS and create a workable legal regime governing piracy.

    I do agree with you regarding your last comment and suggest that it is already true, at least in part.  It seems to me that the war criminals of the world do have very little to fear if they are not captured by their enemy and their actions are not part of a mass atrocity (of at least My Lai proportions).  When one attempts to prove individual states of mind and guilt in the complexities of the modern battlefield, the same problems of proof arise.  It would seem to be a similar genre of ambiguity, disorganization and decentralization from which the Somali pirates prosper.

  3. I’m pleased to have such readers as Mesrs. Anderson and Dehn. Mr. Dehn is right that I see the situation as analogous to terrorism in many ways. I would not go so far as to say it is a no-win trade-off between summary justice and armed attacks, but there are trade-offs between the two. It is unlikely either corner solution is optimal. This point is often not realized in the terrorist detainee debate, where it is commonly asserted that justice and safety are not substitutes.

    I do not say that the pirates should be treated differently from, say Gitmo detainees. I do think the world would be more accepting if they were treated worse. Not because of romantic notions about pirates but about accused terrorists. Few think one man’s pirate is another man’s freedom fighter, though the pirates (and Col. Qaddafi), with a good ear for what works, have also begun to make that claim — they are simply defending traditional fishing waters from encroachments by big freighters. (No joke.)

    Certainly taking another look at UNCLOS’s seven piracy articles would be appropriate; they do not in anyway represent divine wisdom on the subject, and should be reevaluated in light of their first major test. It does make me wonder how many other clauses in that sprawling treaty are poorly drafter or understood.

  4. Jus Cogens and Universal Jurisdiction indeed!  The U.S. did successfully capture some “suspected” pirates yesterday near the Gulf of Aden.   While we “blog away” at least a dozen or more flagged vessels are held hostage while powerful warships from different nations cannot devise a singular or joint strategy to rescue the captive vessels or crews.  Thus far the only effective justice might be seen as that imposed by the winds and waves on the luckless pirates who fled the tanker with their ransom share only to drown in the angry seas.  

    If we are to follow the well recognized principles of CIL relating to pirates of the prior centuries, then nations must tdevise effective methods for prompt capture and removal of them, despite the risks, together with the application of uniform and appropriate but swift justice for those who are culpable.  Absent a concerted approach by interested state parties - beyond UN declarations, UNCLOS and fair justice concerns that ring loudly in the light of the debacle of the trials at Guantanamo - the problem persists and grows in frequency as long as the risk of capture remains low while the rewards are paid by the vessel owners.  It may become necessary to have small armed contingents aboard many commercial vessels, which may be a lesser price to pay than the loss of revenues caused by the detention of captive vessel for weeks or months followed by payment of ransom on top of the shipping losses.  

    We have defined the crime from Blackstone to U.S. v. Smith (1820), so it is now time to act according to the centuries old traditions that held that piracy in any form a violation of the the laws of nations to be dealt with swiftly and harshly to ensure the deterrence of too many others willing to gamble on its rewards.     

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