A New Approach to Counter-Piracy: Lower the Burden of Proof for Prosecuting Pirates

by Julian Ku

Fascinating speech by Andrew Shapiro, Assistant Secretary for Political-Military Affairs at the U.S. State Department on U.S. government views on counter-piracy policy.  Of special interest, the U.S. may try changing the law on prosecuting pirates.  How exactly to do that is a bit unclear (treaty? custom?), but it seems like a promising avenue.  At least it is a new idea, something typically lacking in this area.

And while we will continue to pursue the 21st Century solutions that Secretary Clinton has spoken about, we will also look to the past for ideas. For instance, the Danish-led working group is actively considering how to enhance the ability of states to prosecute attempt or conspiracy to commit piracy – those cases where we do not capture the suspects in the act of attempting to pirate a vessel but do encounter them laying in wait for their next victim ship with all the trappings of would-be pirates.
One way to do this might be to infer the intent to commit an act of piracy from the possession of piracy-related equipment and the circumstances in which the suspects are encountered. In the 19th Century, states interested in combating the slave trade agreed that vessels found carrying specific “articles of equipment” used for the slave trade, such as shackles and handcuffs, could be declared evidence of a ship’s employment in the slave trade and, unless satisfactorily accounted for by the owner or master, could provide the necessary grounds for condemnation of the ship.
If we were to proceed by analogy in the present piracy context, perhaps states could agree that the mere possession of certain ladders, grappling hooks, and certain armaments at sea in an area known to be a high risk area for piracy attacks should be sufficient to establish intent to commit an act of piracy.

Lawyers for Detained Pirates File Suit in Germany

by Kenneth Anderson

Der Spiegel reports from Germany (the article is detailed and worth reading in full):

In the latest dispute over the European Union’s anti-piracy mission off the coast of Somalia, lawyers representing two suspects being detained in Kenya have filed suits against the German government. They want Berlin to foot the bill for the suspects’ defense and ensure they are given a fair trial.

Two suspected pirates detained by German naval forces in a mission off the coast of Somalia on March 3, who were later turned over to Kenyan officials for prosecution, are now suing the government in Berlin for a fair trial.

Attorneys for the men filed a suit on Tuesday demanding that the German government pay for the men’s defense and provide support to a group of suspected pirates currently being held in the Shimo La Tewa prison in Mombasa.

Ruth Wedgwood on Piracy – ‘The Law Adrift’ and Ken’s Contentious Remarks on the Larger Issues of Order

by Kenneth Anderson

(Update: At the end of this post, I put a note from Eugene Kontorovich on his new paper on piracy, apparently still a discussion draft and not yet on SSRN, but apparently available from him if you contact him at Northwestern.) 

In the midst of so much newspaper op-ed, blogosphere commentary on the piracy issue, Ruth Wedgwood – who has been working on this issue for some time now – has a fine piece up at The American Interest on the larger issues of piracy and international law, The Law Adrift.  If one is looking for deeper examinations of contemporary piracy in law and policy, where do you go?  Ruth Wedgwood’s writing is one place.  Another is the scholarship of Eugene Kontorovich, who began working on this issue as a scholarly question several years ago – Opinio Juris has posted animportant guest comment from Eugene on piracy and why current policies are not working by him; it is well worth reading in the current discussion.  And there is Peter T. Leeson’s brand new book from Princeton UP – The Hidden Hook: The Hidden Economics of Pirates

I raise these to note, especially for web researchers who might have drifted here to OJ looking for sources, there are discussions of these issues that go deeper than the op eds and blog posts.  One of Ruth Wedgwood’s important observations is the way in which the edifice of international law precludes ordinary realism:


[T]he UN Security Council voted in November 2008 that foreign navies could target pirates within Somalia’s territorial seas—that is, within 12 miles of shore—so long as they had a letter of consent from the Transitional Federal Government of Somalia. In December 2008, the Security Council voted that foreign states could take enforcement action ashore and in Somali airspace to root out pirate lairs, so long as the Transitional Federal Government again consented. Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense.

Somali Pirates Seize American Ship and Crew

by Kenneth Anderson

Somali pirates have seized a US-flagged ship carrying relief aid and 20 Americans, the New York Times reports. It is the first time in a long time – I haven’t looked hard and could be wrong, but I couldn’t find any indication of a US-flagged ship being seized by pirates going back at least a decade.   We’ve talked before on this blog about international responses to piracy.  I’ve suggested that in some ways it is a made-for-TV issue for the Obama administration – a chance to show multilateral leadership in a firm, security-related way.  American ship?  American crew being held hostage?  Ship carrying relief supplies?  There’s already a Security Council resolution and, for once, general agreement among the great powers that everyone favors secure seas through the region – China, Russia, Saudi Arabia, etc.  Of course, it is never that simple once the pirates actually have hostages.

UN Authorizes Attacks on Pirates on Land or Sea

by Kenneth Anderson

The UN Security Council has passed unanimously a US drafted resolution authorizing attacks upon pirates, whether by land or sea.  It is one of those rare security issues in which the great powers, and many small ones, have been willing to come together, at least in granting authority.  So far, piracy has been treated as a nonpolitical issue, including in large part by the pirates themselves.  But could that change?  And what does it mean to move from diplomatic authorization to actual operations?  Is anyone really prepared to intervene on land, even if that were the most efficient place to block pirate excursions?  Will the Obama administration see this as a good first opportunity to organize the multilateral use of force in the post-Bush era, in the rare situation in which multilateral action has a rare chance of succeeding because the great powers agree that each has something tangible at stake?  Read on to find out that I’ve offered … no answers, only questions!