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

by Melbourne Journal of International Law

[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.

http://opiniojuris.org/2010/11/24/%e2%80%98the-laws-of-war-and-the-fight-against-somali-piracy-combatants-or-criminals%e2%80%99-by-douglas-guilfoyle/

2 Responses

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    Good Post. Many have referred to this as the “Guantanamo on the Sea.” Although Universal Jurisdiction applies to Piracy, one of the oldest crimes in International law, few states have actually tried to enforce or punish the pirates. One main reason , is countries like the US are struggling to come up with a way to deal with such a unique combatant who is captured abroad. Additionally many states are fearful to try or even jail pirates out of fear of retaliation. Until we learn to effectively deal with the problems surrounding detaining and prosecuting pirates, they will continue to go unpunished.

  2. Interesting article. I agree that it seems very counterintuitive for laws of armed conflict to have any application to the regulation of piracy, when such criminal acts are already governed by laws of the sea,  do not involve a conflict between states, and are viewed as criminal act against the international community as a whole. Why would we give combatant status and extends such privileges to s non-state actors who are not acting as lawful combatants… this seems to be outside the reach of the Geneva Convention. The idea that some combatant privileges are extended to non-state actors in a non-international armed conflict could be drawn from the US Supreme Court’s holding in Hamdan v. Rumsfeld, but it is more likely that such a situation falls into a gap that the laws of armed conflict do not reach.

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