Pirates Exploit Confusion About International Law
The connection between human-rights scolds and the rise of crime on the high seas.
On Saturday, off the coast of East Africa, pirates seized their largest catch ever: a giant Saudi-owned oil tanker called the Sirius Star. The brazen attack came on the heels of the capture of a Ukrainian vessel (loaded with armaments destined for Kenya) by Somali pirates in September. Humanitarian food shipments into Somalia have had naval escort for nearly a year — evidence of how much the security of sea-lanes has eroded. Media reports suggest that Somali pirates have already attacked more than 80 ships in 2008.
These are unprecedented and dangerous developments. Suppressing piracy and the slave trade, accomplished by the last quarter of the 19th century, were among mankind’s great civilizing achievements. These were brought about by major maritime powers such as Great Britain and the United States. Indeed, in the American republic’s earliest days, President Jefferson dispatched the infant U.S. Navy to confront the Barbary pirates, both on shore and at sea.
By the 1970s, as a part of a growing chaos in parts of Africa and Asia, incidents of piracy began to pick up. But it was not until the 21st century that piracy has experienced a meteoric rise, with the number of attacks increasing by double-digit rates per year. Last year, according to the International Maritime Bureau, 263 actual and attempted pirate attacks took place. Large maritime areas have now become known as pirate heavens, where mariners can expect to be routinely molested. The Victorian self-confidence that drove pirates from the seas is gone.
Twenty-first century economics being what they are, the pirates have been more interested in the payment of ransom by anxious owners and insurers than in the vessels or their cargoes. Piracy is nonetheless a vicious and violent activity that exposes the world’s merchant mariners to additional risk of death or injury. Even more fundamentally, the dramatic surge in piracy is, like terrorism, part of a broad challenge to civilization and international order.
Experience — especially that of colonial America — suggests that a few sporadic antipirate efforts will not be enough to solve the problem. Only a dedicated naval campaign, along with a determined effort to close the pirates’ safe havens, will succeed in sending piracy back to the history books.
There has been some progress on this front. The North Atlantic Treaty Organization has dispatched a formidable multinational force — including British, Italian and Greek ships — to join the American, French, Canadian and Danish vessels already cruising off Somalia’s vast coastline. France has also aggressively pursued pirates, freeing captured vessels and hostages.
Capturing pirates is not the critical problem. Rather, the issue is how to handle those in captivity. Traditionally, pirates fell within that category of illegitimate hostiles that once included slave traders, brigands on the roads and, in wartime, unprivileged or “unlawful” enemy combatants. As Judge Nicholas Trott, presiding over a pirate trial, explained in 1718: “It is lawful for any one that takes them, if they cannot with safety to themselves bring them under some government to be tried, to put them to death.” This law, of course, has changed since the 18th century. Pirates, brigands and unlawful combatants must now be tried before they can be punished.
One solution would be for the capturing state to press charges based on the much misunderstood and abused principle of “universal” jurisdiction. This is the notion that any state may criminalize and punish conduct that violates certain accepted international-law norms. Although its application in most circumstances is dubious — there is very little actual state practice supporting the right of one state to punish the nationals of a second for offenses against the citizens of a third — piracy is one area where a strong case for universal jurisdiction can be made (if only because piratical activities often take place on the high seas, beyond any state’s territorial jurisdiction).
Moreover, given the nature of naval operations, discerning who is a pirate is usually a much easier task than separating Taliban and al Qaeda members from innocent bystanders. This fact, all things being equal, should make the task of prosecuting captured pirates an easier process, both from a legal and public-relations perspective.
The key problem is that America’s NATO allies have effectively abandoned the historical legal rules permitting irregular fighters to be tried in special military courts (or, in the case of pirates, admiralty courts) in favor of a straightforward criminal-justice model. Although piracy is certainly a criminal offense, treating it like bank robbery or an ordinary murder case presents certain problems for Western states.
To begin with, common criminals cannot be targeted with military force. There are other issues as well. Last April the British Foreign Office reportedly warned the Royal Navy not to detain pirates, since this might violate their “human rights” and could even lead to claims of asylum in Britain. Turning the captives over to Somali authorities is also problematic — since they might face the head- and hand-chopping rigors of Shariah law. Similar considerations have confounded U.S. government officials in their discussions of how to confront this new problem of an old terror at sea.
In the last few years, France determined to return its pirate prisoners to Somalia based on assurances of humanitarian treatment. The U.S. has, of course, rendered terror prisoners to foreign governments based on similar assurances, and only time will tell whether they are genuine. An equally important question is whether the transfer of captured pirates to local authorities will result in prosecution at all. In many areas, local governments may be subject to corruption or intimidation by strong pirate gangs.
One thing is certain: As in the war on terror, the new campaign against piracy will test the mettle of Western governments. It will also require them to balance the rights of lawbreakers against the indisputable rights of the law-abiding to not live their lives in danger and fear.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.