One Possible Defense Against Piracy: Self-Help

by Julian Ku

All news is local, I guess, even in this supposedly globalized age.  So it is not surprising that it took an attack on a U.S. ship with a U.S. crew to focus the American public’s attention on the piracy problem off the coast of Somalia.  But as readers of this blog can attest, the piracy issue has been flagged, addressed, and analyzed carefully.   Most recently, emerging piracy law expert Eugene Kontorovich has outlined the problem here

One possible remedy for the piracy problem is self-help.  That is to say, merchant ships should, like the U.S. flagged Maersk Alabama, fight back against the pirates without waiting for the Navy to show up.  This appears to have more or less worked in the Alabama’s case, even though the crew was probably unarmed.  The Navy is, frankly, not much help because, while they can shoot a missile out of a sky, they have a hard time tracking little speedboats.  And even worse, as Prof. Kontorovich has pointed out, the Navy may not be able to shoot at the pirates even when they do show up unless the pirates shoot first.  Nor are they willing to try them, or punish them, given various legal protections that the pirates now enjoy under international law and the U.S. constitutional defenses they can probably raise against a U.S. prosecution (gotta love that Boumediene case, just gotta love it).   

Self-help might actually be the most effective measure, although I’d have to think about what legal rules of engagement would apply to a merchant mariner shooting at a pirate.  Ironically, the merchant mariner (acting in self-defense) is probably legally better off than a naval officer in fighting pirates.  And self-help is cheaper than naval protection in most cases.  But it still might be more expensive than just paying the ransom, which has been the preferred option up until now.

http://opiniojuris.org/2009/04/09/one-possible-defense-against-piracy-self-help/

4 Responses

  1. I don’t think the problem for the Navy is “tracking little speedboats”, but determining which ones are pirates and which ones are innocent water traffic (say, fishermen) before it’s too late. The problem still exists, however. You can’t simply declare an exclusion zone around every merchant ship transiting the Gulf of Aden the way you can around a carrier battle group and assume everything entering the EZ has hostile intent.

  2. Response…

    Julian, it is true that some U.S. constitutional rights have been held to apply to non-citizens on the high seas (I’ll plug my forthcoming book, Does the Constitution Follow the Flag?, if you want more detail). But invoking Boumediene is a red herring. The requirements the Boumediene court laid down for the application of habeas to offshore aliens were pretty strict (yes, they were just successfully applied to Bagram Air Base in the Maqaleh litigation, but I’m not sure that holding will be sustained, and either way I think that application helps proves that point). In any event, it would be interesting to get more elaboration from you or Eugene on how exactly constitutional considerations are influencing U.S. strategy toward Somali pirates.

  3. Response…I’m generally sympathetic to the self-help solution discussed here, but I, too, am baffled by the Boumedienne reference.  Is Julian Ku suggesting that if Somalian pirates are prosecuted in US courts, they should not be allowed to defend themselves with all the rights of other criminal defendants?  Or that if they do have such rights, then we shouldn’t bother to prosecute them?

  4. Is it really that expensive to equip ships with a few .50 caliber machine guns with armored turrets?  With tracers mixed with ordinary rounds, I would think the sailors need not be terribly good shots to take the pirates out as they approach. 

    As for distinguishing between pirates and fishermen, any fishermen speeding to an intercept point with a ship is asking to be assumed to be a pirate.  If any try it, they’ll soon learn not to.

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