‘The Laws of War and the Fight against Somali Piracy: Combatants or Criminals?’ by Douglas Guilfoyle

[Dr Douglas Guilfoyle is a Lecturer in Law at the Faculty of Laws, University College London.]

It is sometimes suggested that because pirates were described by classical authors as hostes humani generis (enemies of humankind) or because the Security Council has authorised the use of ‘necessary means’ in repressing Somali piracy that the laws of armed conflict (‘LOAC’) must (or might) play some role in counter-piracy operations off Somalia. Alternatively, it might be thought that because the current counter-piracy operations in the Gulf of Aden are being conducted by naval forces, the appropriate law governing their actions should be LOAC. Such arguments, to my mind, simply add to the entirely unnecessary confusion and speculation that surrounds the repression of high seas piracy. The law of piracy is now codified in treaty, and to the extent it remains ambiguous the current practice of States makes their interpretation of the treaty law fairly clear. With only one exception, no naval or government legal officer I have spoken to on the issue – and I’ve spoken to many – thinks LOAC has any application.

The thrust of my argument is that any case for the application of LOAC must fail at the first hurdle: the attacks of Somali pirates on foreign merchant vessels do not constitute an armed conflict; nor do their occasional (and usually very brief) engagements with naval forces in the Gulf of Aden. Even if, as has recently been reported, pirates are increasingly connected with factions in the Somali civil war this would not necessarily change anything. Persons engaged in conflict on behalf of a non-State actor inside Somalia may still commit criminal acts outside Somalia. Indeed, historically, insurgents who attempted to exercise belligerent rights at sea were treated as pirates unless they had been granted some form of recognition.

My commentary thus makes the case that this is a law-enforcement operation to which LOAC has no application. Further, it isn’t obvious that deeming the laws of armed conflict to be applicable would make the task of navies any easier or, alternatively, provide any greater human rights protection to suspect pirates. There is already a clearly established framework for law-enforcement operations at sea; not only is this the correct law to apply as a matter of doctrine, few advantages would follow from applying the laws of war as a matter of policy.

One small caveat: the piece perhaps assumes there can be privileged combatant status for non-State actors during non-international armed conflict. The point is, of course, contested.

The full article can be accessed here.