Here There Bee (More) Pirates … and Might the Obama Administration Take Them Out?

US Navy vessel confronts Somali pirates, 2006.  Photo credit Chief Petty Officer Kenneth Anderson, USN, open access DOD (no, not me, but we Ken Andersons really get around).

Somali pirates strike again, this time hijacking a Saudi-owned tanker off the coast of Kenya. The running stand off with the hijacked ship carrying arms and a Ukrainian crew continues; Russia announces that it repelled an attack on a different Saudi vessel.  VOA describes the number of attacks and hijackings this year:

International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked.  The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks. 

I’ll post more on this later, but let me put out a query now:  Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law?  No use of force question is ever truly easy – law of unintended consequences always in effect – but clearly this is a rising issue, and one in which the vessels of many nations have been attacked and continue at risk.  

Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain.  I am not alone in thinking this an ignominious day for Britain.  But it is a double whammy for unintended consequences: it is unlikely that it was ever intended that asylum law would be read to create a municipal duty for Britain regarding detentions for piracy off the coast of Africa – but it was equally unlikely that it was ever contemplated that a state would appeal to asylum law in order to abandon what might otherwise be seen as an affirmative international law duty to maintain the law of the seas.  

There are many legal questions here, of course.  But I had a conversation with a US Navy officer, not a lawyer, but someone with operational duties, who suggested that the best military course of action would be to equip some number of civilian vessels as decoys – heavily armed and carrying marines.  The best thing, he said, would be for Somali pirates to attack, and then be aggressively counterattacked, in a battle, not the serving of an arrest warrant – sink their vessel and kill as many pirates as possible.  It would send a message to pirates that they could not know which apparently civilian vessels might instead instead counterattack.

I asked whether this wouldn’t create the usual problem of increasing risks to civilians – i.e., the risk to civilians heightened when guerrillas mingle with civilians in civilian clothing.  But, as he pointed out, on the contrary, this increases the safety for civilian vessels by raising the risk to pirates – in the case of armed escort, the pirates know which ships are protected and which are not.  If the pirates do not know which apparently civilian ship might actually be armed and ready to attack them, they must be far more cautious.  

Moreover, the use of overwhelming force aimed at killing them at the very moment the attack is commenced is most useful, before they can board and take hostages, and killing them rather than taking them prisoner and turning them over to local justice systems that do not impose great risks on them.  The greatest risk posed by pirates is once they have boarded – that is when their firepower is maximized by having hostages; they are at their weakest when still in their own vessel, and that is the moment to strike – as they commence their attack and can be sunk in their vessel yet have no hostages for bargaining.

I also asked why not use Predator drones and patrol from afar; he responded that such invisible patrols were useful, but that the fundamental operational problem was that once the pirates were aboard, they then had hostages and the whole situation changed.  In effect, the attack could be treated as pure battle until the pirates had hostages, but then it turned operationally into counter-terrorism and hostage-negotiation.  It was therefore crucial, in his view – he had studied earlier rounds of piracy in these same waters, in which incidents had gone down because Japan and other states starting arming and training crews to fight back – that the pirates be confronted before they boarded and took hostages, and a Predator was unsuited to that task.

I would be interested in comments from anyone with operational experience as to whether this is correct. 

But there are a number of ways in which an Obama administration might make its mark here.  

• One is to act in a way to demonstrate that the operation is a military one within the traditional law of the sea responding to piracy – one fights and detains any who survive in order to prosecute, but the operation is not law enforcement as such.  (And the law used to prosecute could usefully be the traditional law of piracy – common enemies of humanity, etc.)
• Second, the US can demonstrate the traditional US commitment to the rule of international law on the high seas and freedom of the seas.  
• Third, it can act with allies and friends – India, for example – to create patrols and the reinforcement of multilateral sovereign duties; many countries find their vessels and interests at stake here.  It might even manage to re-acquaint the British government with its international law obligations, by making clear through joint declarations of states undertaking patrols that asylum is not an option.  
• Fourth, it might even find a way that the US could support the ICC without triggering the usual issues for the US, by sending (or at least opening discussions on sending) captured pirates to trial at the ICC.  (I should report, full disclosure, that I am, alas, one of those recalcitrants who think the US should stay out of it, support the servicemen’s protection act and oppose its repeal, oppose de-de-signing of the Rome Statute, etc., but am interested in seeing ways in which the US might still usefully cooperate with the ICC on mutual matters of international justice; although I think a traditional customary law court-martial of pirates at sea followed by (televised) hanging has its advantages, too.)

There are obviously many serious international law questions here.  But I would also flag in advance that we law of wars lawyers need to bear in mind – I include myself emphatically in this admonition – that we have focused almost entirely on the law of land warfare, and that the law of armed conflict on the seas is its own distinct body of law and doctrine.  Big mistake to assume that, as a legal matter, it is the same.  (More on these subjects later.)