A Response to Beth Van Schaack by Douglas Guilfoyle

A Response to Beth Van Schaack by Douglas Guilfoyle

I am grateful to Professor Van Schaack for her thoughtful and considered response. It strikes me as an entirely fair criticism that – albeit in a short commentary focusing on the standards governing the use of force by governments – I neglected to explore fully issues of combatant status in non-international armed conflicts and, more interestingly, belligerent nexus issues. The methodology adopted was to avoid speculation by focusing on the facts at hand at time of writing and this limited the scope of the piece.

Professor Van Schaack is correct to point out that the lack of an armed conflict between Somali pirates and their victims (or patrolling naval forces) and the existence of a non-international armed conflict within Somalia raises distinct issues. Could Somali pirates’ acts still be charged as war crimes as well as piracy, if those acts were sufficiently linked to the Somali conflict, and if so what is the relevant test of belligerent nexus?

The only substantive thought that occurs to me in response to this very useful question is that it is obviously true that non-combatant civilians may commit war crimes in either international or non-international armed conflicts (‘NIAC’s). The catalogue of potentially applicable NIAC war crimes overlapping with acts of piracy could certainly include hostage taking and possibly pillaging. Depending on the case, outrages upon personal dignity or cruel treatment and murder might also apply. The nexus test offered in by the ICTY Appeals Chamber in Kunarac (Case No IT-96-23/1-A, 12 June 2002 [57]) was: ‘the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit [the crime], his decision to commit it, the manner in which it was committed or the purpose for which it was committed’. Taken literally, this could cover non-combatant pirates who merely exploit the conditions created by the non-international armed conflict to commit crimes for personal financial advantage. Read as a whole Kunarac may support a higher standard, though, as on the facts it found the nexus requirement satisfied where ‘the perpetrator acted in furtherance of or under the guise of the armed conflict’. Even so, if evidence emerged that an act of piracy was aimed at funding an armed group participating in a NIAC, this could well qualify.

The final point to consider would be whether attacked sea-farers on the high seas could qualify as victims under the law of war crimes. In the case of a NIAC attacked mariners would appear to be protected as ‘persons taking no active part in hostilities’ under Common Article 3.

I am, of course, open to correction or further thoughts on all of this.

I certainly agree with Professor Van Schaack that, even if made out, this would not change the applicable law on the use of force for interdicting naval forces. Arresting either pirates or war criminals remains a law-enforcement exercise.

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Aurel Sari
Aurel Sari

Dear Douglas,

Even if LOAC is not directly applicable to counter-piracy operations off Somalia, would it be fair to say that it nevertheless influences or guides the conduct of the naval forces conducting those operations? I would assume that the applicable ROE are still based on LOAC.

Of course, this is not to suggest that LOAC is directly applicable: I’m just wondering whether specific LOAC rules, such as those on targeting, are nonetheless utilised in these operations.


Francisco Forrest Martin
Francisco Forrest Martin

According to the British High Court of Admiralty, pirates are “universally subject to the extreme rights of war.” The LeLouis, 2 Dodson 210, 244 (1817). The U.S. Supreme Court in The Marianna Flora (1826) also stated that pirates “are liable to the extreme rights of war.” Therefore, pirates are subject to IHL or LOAC in the same way as war criminals also are subject to IHL or LOAC.
As for Boskoski’s requirement of a “protracted armed conflict” to trigger IHL protections, I thought that the repeated and organized acts of piracy off the coast of Somalia over the last several years would have fulfilled the Boskoski requirement. Furthermore, historically speaking, pirates generally have been strongly linked to armed conflicts international (e.g., the Barbary Pirates in the Tripolitan Wars) or non-international (e.g., Louis Aury in the Spanish Wars of Independence).


Problem 1: if the putative “pirates” operate for a political purpose, e.g, as part of an insurgency (e.g., to help fund such), the putative “pirates” are not pirates!  There are recognitions of this point in the past, e.g., re: the Palestinian Achille-Lauro boatjackers and Italy’s refusal to exradite to the U.S. for prosecution as “piracy.”  Best to leave them as pirates seeking to engage in ordinary violence and plunder — enemies of humankind, universal jurisdiciton and all that.
Problem 2: if there is an “insurgency,” the fighters are not “belligerents” (which is a term saved for the next level up, e.g., when a belligerency has been reached.  E.g. The Prize Cases (U.S. 1862).  Insurgents, of course, are not “combatants” either, and have no combatant immunity.
Problem 3: the existence of an armed coflict does not obviate the right of a state to engage in self-defense (or self-defense captures) under Article 51 of the U.N. Charter, so not all acquisiitons of custody are “law enforcement.”