A Response to Douglas Guilfoyle by Beth Van Schaack

[Beth Van Schaack is an Associate Professor at Santa Clara University School of Law and contributor to IntLawGrrls.]

Professor Guilfoyle’s article makes a discrete and important contribution to his growing body of work on maritime law and the problem of piracy in the Gulf of Aden. The article cogently argues that international humanitarian law (‘IHL’) does not apply to most instances of piracy because of the absence of the existence of an armed conflict between pirates and their targets — a necessary predicate to the applicability of this body of international law. Based on Professor Guilfoyle’s account, it seems clear that the acts of violence in the Gulf of Aden do not meet the threshold of ‘protracted armed conflict’ between ‘organized armed groups’ necessary to trigger the application of IHL. (See Prosecutor v Boškoski, Case No IT-04-82-T (10 July 2008)). To date, these attacks are more akin to acts of banditry that do not satisfy even the lowest threshold established by common Article 3 of the Geneva Conventions. Professor Guilfoyle also convincingly demonstrates that nothing in the Security Council’s resolutions responding to acts of piracy calls this conclusion into question, notwithstanding that the Council has authorized the use of ‘all necessary means’ (code for uses of military force) and invoked ‘relevant humanitarian law’. Thus, he concludes that in the majority of circumstances, piracy is a law enforcement problem, not a law of war problem.

The seemingly facile conclusion of the article, however, dodges the more difficult question of the impact of a potential nexus between acts of piracy and the ongoing non-international armed conflict in Somalia between the beleaguered Transitional Federal Government and a loose coalition of fundamentalist militias. If such a link is eventually established or confirmed, IHL may apply to some acts of piracy committed in order to fund organized armed groups or regional warlords engaged in the protracted insurgency against the government of Somalia. The article would have made a more significant contribution had it focused more searchingly on this question of what type or degree of war nexus would be necessary to trigger the application of IHL.

One implication of such a nexus would be that attacks on commercial vessels such as we have seen in the Gulf of Aden may become prosecutable as war crimes (viz, violence to life and person or the taking of hostages). This possibility might circumvent some of the defects in national substantive law that have led to the release of captured pirates for lack of a legal basis to bring charges. The application of IHL would not, however, likely displace other law enforcement activities being undertaken in the region. Rebels and insurgents in non-international armed conflicts enjoy no combatants’ privilege (a point acknowledged in the above commentary but not in the article itself). Nor does IHL provide national authorities with any authority to capture and detain individuals engaged in non-international armed conflicts without the privilege of doing so. Rather, such responses will continue to be governed by other sources of national and international law, including the law of the sea and international human rights law. So, even applying IHL to this potential scenario results in a renvoi to a law enforcement model of capture, detention, and prosecution.

Regardless of the application of IHL, the international community should not lose sight of the fact that international human rights law remains applicable to the collective international response to acts of piracy. In a companion piece, Professor Guilfoyle focuses on the law governing the extraterritorial application of human rights law, the principle of non-refoulement, the prohibition of arbitrary detention, and due process protections (see Douglas Guilfoyle, Counter-Piracy Law Enforcement and Human Rights, 59 Int’l & Comp L Q 141 (2010)). In addition, the prohibitions of summary execution and other arbitrary deprivations of the right to life also establish limitations of necessity and proportionality on uses of force against individuals in the exercise of national and international police powers (see McCann v UK, 21 EHRR 97 (1996)).