09 Feb Why the Piracy Police Isn’t Working
[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.