For centuries, aggressive international enforcement, facilitated by a legal regime that was the model of international cooperation, has been key to suppressing piracy on the high seas. Today, as a long-simmering piracy problem boils over off the Horn of Africa, nations have begged off from enforcing the law against this group of international criminals that threatens to bring much of international shipping to a standstill. The global shirking of prosecutorial responsibility is particularly hard to square with the eagerness with which the same countries have sought to prosecute much more complex and politically sensitive offenses. Coming at a time when increasingly bold claims have been made about international law’s ability to resolve massive problems like genocide and decades-long ethnic conflict, its incapacity to deal with the international equivalent of ordinary street crime.
I. Background: the piracy problem in the failure of international response
A series of spectacular hijackings has propelled the problem of Somali piracy the forefront of international attention. In the last months of 2008, different groups of pirates took a Ukrainian ship carrying battle tanks and arms to Kenya;1 a Saudi tanker filled with crude oil;2 a chemical tanker,3 and numerous ships carrying international relief supplies.4 Pirates have also fired on an American-owned cruise liner.5
These are just the more notorious incidents in a rapidly escalating epidemic. Though only receiving public attention in recent months, attacks on international shipping have been a problem since the Somali government collapsed in the 1990s. Pirate attacks began growing in frequency and sophistication in 2005.6 Last year (2008) saw attacks on international shipping increase more than three-fold increase over the previous year – more than 100 ships have been attacked.7 Moreover, the geographic scope of attacks has widened.
In response, men-of-war from a 20-nation alliance, initially lead by NATO, began patrolling the Gulf of Aden.8 This has recently been augmented by a European Union flotilla — the first naval force ever deployed by the erstwhile economic union,9 as well as the first Chinese naval force ever deployed to another region, and Russian and Indians warships. The amassed armada is formidable. As one officer wryly noted, in a recent pursuit of a pirated vessel, there was roughly one destroyer per pirate.10
Yet the results are not encouraging. The most modern navies have been dispatched against small, disorganized posse of petty criminals equipped with RPG’s, small arms, and small fishing boats. Thus far, international efforts have failed to solve a problem that threatens to scare shipping away from a waterway that carries nearly one third of the world’s cargo.11 While the hijacking of the Ukrainian Faina was said to be a bridge too far for the pirates – a whole armada of high-tech warships set off in pursuit – even that ship appears to have been successfully ransomed off.12 Despite extraordinary international cooperation in interdiction, the International Maritime Bureau reports an “unprecedented rise in pirate attacks.”13
While coalition vessels have stopped and prevented many pirate attacks, they have not taken any pirates off the streets. Instead, they have released all the pirates they apprehend because of jurisdictional concerns.14 Diplomatic and military officials have suggested that part of the problem lies in a lack of an international law basis for prosecuting pirates.15 As the Chairman of the US Joint Chiefs of Staff put it, “One of the challenges that…you have in piracy clearly is, if you are intervening and you capture pirates, is there a path to prosecute them? That’s something I think the international community has got to answer for the long run.”16
These concerns are unfounded and misleading. International law provides an ample basis for prosecuting pirates. To the extent nations suggest otherwise, they are deflecting attention from their political unwillingness to use the robust prosecutorial options international law clearly affords. Unfortunately, their lack of willingness is quite predictable. For one, prosecution has costs that nations are reluctant to bear. Moreover, recent developments in international law create serious obstacles to military or judicial action against pirates. It is understandable that the legal and practical difficulties of dealing with international criminals deter third parties nations from doing so. Yet this may bode ill for the ability of Western nations to deal, within the constraints of international law, with even more complex cases of cross-border attacks by irregular forces, such as terrorist and guerrilla groups.
II. Multiple avenues of Jurisdiction over pirates
A. Universal Jurisdiction in the law of nations
Contrary to the protestations of many Western nations, international law as it currently stands gives ample license for pursuing and prosecuting Somali pirates.17 While international law may be vague and uncertain in many areas, piracy is not one of them. One of the oldest, clearest and least controversial rules of international law is that any country can prosecute any pirates they happen to apprehend.18 For hundreds of years, the pirate has been treated as a hostis humani generis – any enemy of all mankind.19 Several factors underpin pirates’ special jurisdictional status.
First, international shipping passes through certain defined routes, and it is on these maritime highways the pirate threat. Thus the pirates, who do not discriminate among targets based on nationality, literally endanger the trade of all countries. Their attacks raise the prices of commodities and maritime insurance, and thus of international commerce in general. As recent attacks have shown, a ship may be owned by the one nation flying the flag of the second, carrying cargo destined for five other countries, and crewed by nationals of still other states. Piracy implicates the interest of all these countries.
Equally important, part of the definition of pirates is they are not endorsed by their own country.20 Thus when some other state seeks to prosecute them, it is unlikely the home country will protest. Based on the example of piracy, modern human rights law has attempted to extend universal jurisdiction to crimes with political motivations and governmental perpetrators, such as war crimes and torture.21 This has often raised the hackles of the defendant’s government, of which the defendant was often formerly or currently a part.22 Pirates, by contrast, are mere robbers, over whom no one would have much solicitude.
While the reasons that piracy has historically been a universal jurisdiction offense a complex, the law is simple. Any ship patrolling off the Horn of Africa can prosecute any pirates it captures, even if the pirate has never attacked that that countries’ shipping.
B. The United Nations convention on the law of the sea (UNCLOS)
While universal jurisdiction over piracy developed through unwritten customary international law, it has been codified in the United Nations Convention on the Law of the Sea, which has been ratified by almost every country in the world (with the significant exception of the United States).23 UNCLOS defines piracy more broadly than did the customary law of nations. The treaty includes “any illegal acts of violence or detention, or any act of depredation, committed for private ends.”24 Thus assault and murder on the high seas would be universally punishable under UNCLOS, whereas under traditional international law such crimes ironically had to go unpunished.25
In some ways, UNCLOS might make fighting piracy harder. Other provisions of the treaty extend nations’ territorial seas 12 miles from the coast, a significant expansion of the traditional three-mile zone. Moreover, the treaty gives coastal states certain exclusive rights as far as 200 miles out. Because the international law of piracy only applies on the “high seas,” UNCLOS has the unintended effect of reducing the area where piracy can be internationally policed.26 This presents an opportunity for pirates to take advantage of the territorial waters of weak or failed states. This can have an important effect in gulfs, straits, and archipelagoes, where international shipping must transit through or close to sovereign waters. This helps explain why the two leading piracy problem areas of the Gulf of Aden and the Straits of Malacca, both choke-points for international shipping.
However, in respect to Somali piracy, this weakness in the UNCLOS regime was remedied by the United Nations Security Council in June 2008. Resolution 1816 authorizes the international force patrolling the Gulf of Aden to “enter the territorial waters of Somalia for the purpose of repressing acts of piracy” and while there to “use…all necessary means to repress act of piracy.”27 The resolution is an unprecedented grant of authority to interdict coastal piracy. Enacted pursuant to the Council’s Chapter VII powers to respond to threats to international peace, it appears to authorize a wide range of military measures measures. By removing a classic legal refuge of pirates – minimally governed sovereign coasts – the resolution, whose 6-month mandate was extended for another year in December 2008,28 grants legal powers to fight piracy that are arguably even greater than existed under the classic law of nations.
The Security Council’s action, which essentially authorizes the use of military force in Somalia territory, was taken with the explicit consent of the country’s nominal transition government.29 Nonetheless in the wake of the resolution, pirate attacks became, if anything, bolder.30 Significantly, pirates began seizing vessels further from the Somali coast than ever before. One might speculate that this is because the resolution equalized the legal status of coastal waters on the high seas, reducing pirates’ incentives to focus their attacks on the former. Or it may simply be that a series of successful and dramatic captures emboldened the pirate to strike further out.
C. Universal Jurisdiction in Practice
While universal jurisdiction prosecutions for piracy are quite rare, they are not unheard of.31 The nations patrolling the Gulf of Aden know that any country can prosecute pirates. Indeed, on two occasions in recent years they have handed over Somalia Pirates to Kenya courts for prosecution.32 In December Britain signed a memorandum of understanding with Kenya providing that in the future it would transfer all pirate captures there for trial. In none of these cases does Kenya have any connection with the crime. Rather, Kenya appears to have been chosen for convenience. But the jurisdiction exercised by Kenya in these cases is shared with all the nations of the world who could just as readily prosecute if they had the will.
Some of the European countries that have expressed doubts about whether they can prosecute Somali pirates have been at the forefront of exercising universal jurisdiction over other offenses. Denmark, for example, has suggested that it cannot punish the pirates.33 Yet it was one of the first European countries to prosecute Serb officers for crimes committed against Bosnian Muslims in the Yugoslav Civil War.34 International law poses no bar to Danish or any other country’s prosecution of pirates. Denmark and other NATO countries have demonstrated that prosecuting foreign war criminals using universal jurisdiction is not incompatible with their legal systems or values.35
D. The Suppression of Unlawful Acts Treaty
An additional source of jurisdictional power, which overlaps partially with the piracy norm, is the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA),36 enacted in response to the Achille Lauro hijacking. The treaty allows any signatory37 to prosecute anyone who “seizes or exercises control over ship by force or threat of force or any other form of intimidation.”38 Jurisdiction is even more readily available for countries whose nationals are on the pirated vessel.39
The Security Council’s resolutions on Somali piracy have stressed the availability of jurisdiction under the convention.40 While SUA has 149 signatories, whose merchant marines comprise 92.75% of the world’s shipping tonnage,41 prosecutions under the treaty have apparently been limited to a single case: obscure US case involving a deranged ship’s cook who commandeered a fishing trawler.42 Indeed, the reluctance to use SUA as a basis for jurisdiction may be due in part to any lack of guidance about the precise applicability of the treaty.43
Given the ample basis in international law for acting against pirates, hesitancy international leaders is on its face puzzling. However, a variety of second-order legal problems, as well as practical constraints and considerations of national self-interest, make piracy enforcement and prosecution difficult. For while international law authorizes indeed encourages the prosecution of international crimes, many particular rules actually create the opposite incentive.
A. War against pirates abolished
Under modern international law, the situation is reversed. Pirates are not regarded as belligerents under the laws of war, and certainly not as illegal combatants.46 Furthermore, a central provision of the Law of the Sea convention reserves the high seas for “peaceful purposes.”47 Except in situations of immediate self-defense, naval forces cannot make war on pirates, but rather must seek to apprehend them. At the same time, given that pirates would be detained by armed forces and held, at least initially aboard naval ships, there would be strong pressure to give them all the protections of prisoners of war, at least presumptively.48 Indeed, in the theory of the Geneva Conventions widely held in the international legal community49 the campaign against the pirates, to the extent it takes place in Somali waters, could potentially qualify as an “armed conflict not of an international character.” This would entitle pirates to the protections of common article 3 of the Geneva Conventions.50 In short, pirates today would have the protections of criminal defendants, as well as some of those of enemy prisoners, without the disabilities of either.
Indeed, given that pirates are civilians on board civilian vessels, there is little the patrolling navies can do until the suspected pirates attempt to board another ship. There is no international crime in being on a Somali fishing vessel, even if armed with AK-47s and rocket propelled grenades. If pirates are not stopped in the narrow window when they speed towards and boarded a vessel, anti-piracy enforcement turns into a hostage situation. Once the pirates have control of a vessel, there is overwhelming pressure to negotiate with them. Thus while the United States Navy came across a disabled motorboat bristling with armed suspected pirates, it gave them a lift rather than arrest them.
Forcefully dealing with pirates would create a serious risk of being accused of itself violating international humanitarian law. Simply attacking pirate vessel on the high seas would open nations to accusations of “targeted killing” of protected targets – similar to the kind of accusations that has plagued Israel in its campaign against terrorists.51 Moreover, in some cases, the accusations might not be baseless. This is vividly illustrated by one of the major armed actions of the anti-piracy flotilla. As the piracy problem continued to grow in November 2008, India reported that one of its frigates had sunk a pirate mothership in the Gulf of Aden. It soon emerged that the vessel was in fact a Thai fishing trawler that had been captured by pirates; only one of the 16 innocent crewmembers survived.52
In another major December development, the Security Council passed a resolution sponsored by the United States allowing the use of military force on Pirates even on dry land in Somalia. For one year period, S.C. Res. 1851 authorizes nations to “undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea.”53 As another chapter 7 measure, it would allow for missile strikes another military assaults on pirate hideouts.54 This gives the coalition navies a tool the absence of which frustrated pirate hunters for centuries.55 This resolution makes even further inroads on the territorial sovereignty of Somalia. The proposal suggests that the United States at least no longer regards the purely criminal model of piracy as satisfactory and is seeking, at least in the context of Somalia, to return to the “war” model as well.
However, the resolution was immediately criticized – including by an American admiral in he Gulf of Aden56 – as likely to cause significant civilian casualties due to the difficulty of distinguishing pirates from anyone else. Such considerations have no doubt also dampened the international naval effort. In recent years international lawyers and NGOs have increasingly scrutinized tactical military decisions for proportionality and other indicia of legality.57 In wars against non-uniformed combatants and terrorist groups, national forces have been accused of violating humanitarian law when they did not successfully distinguish between combatants and civilians in an environment where the former freely commingle with the latter.58 In this environment, attempting to enforce international criminal law creates the danger of violating or being accused of violating international humanitarian law.
The same problem will now face national navies trying to deal with piracy. Indeed, the problem is more severe as the very notion of universal jurisdiction makes clear that the enforcing nation is not defending itself or its vessels. Moreover, even if the likelihood of actually violating humanitarian law is small, the potential perception that a nation kills civilians may be more important than an actual legal conclusion. And the small likelihood of crossing the line could be enough to deter nations that do not have any direct stake in the matter.
B. Difficulties in prosecution
International law authorizes and encourages international prosecution of pirates.59 However, several separate developments in international law tend to make the detention and prosecution difficult and potentially embarrassing for the forum state. Interestingly, many of the difficulties closely parallel those encountered by the United States in its effort to prosecute foreigners captured abroad and suspected of involvement with terrorist groups.
1. Procedural rights
Universal jurisdiction only applies to pirates. Based on past experience, captured Somalis are likely to insist in court that they are not pirates, but rather simple fishermen erroneously seized by a foreign Navy.60 Moreover, most Somali pirates are, in fact, fishermen;61 piracy is not a full-time job.6263 Indeed, given that error is not out of the question, such challenges must be taken seriously, but greatly impede prosecution and detention. Numerous foreign nationals captured by the U.S. in Afghanistan claimed that they were not members of the Taliban or Al Qaeda, but rather foreign tourists, aid workers, or other innocent bystanders who happen to find themselves in Afghanistan.64 Moreover, U.S. courts have held that because the power to detain depends on the foreigner’s status as a combatant, detainees can appear before tribunals to challenge the factual basis for being classified as a combatant even before a full trial for their alleged crimes.65 Establishing the very identity of captured individuals will be difficult, as they are unlikely to carry identification or other indicators of nationality.
Every aspect of the prosecution would raise serious logistical problems. Providing counsel and translation services into the defendants’ native language would be extraordinarily difficult, even in neighboring Kenya.66 Transporting prosecution witnesses and evidence to a foreign court would be burdensome. Naval officers in active service would be called upon to testify.67 Identification by victims would be made even more problematic by the fact that multinational crews of foreign-flagged vessels would have returned to their homes around the world.68 Defense witnesses would present an even greater problem. Any provision for the defendants to be able to present evidence in their favor would require ongoing access to Somalia and Somali waters.
In the two cases brought in Kenyan courts at the behest of Western powers so far, the defendants claimed alleged torture and denial of religious privileges by their captors.69 Given that the Somalis are Muslim, the last charge could potentially be seized upon by Islamic countries to incite anti-western sentiment along the lines of incident in Guantánamo where a Koran was allegedly “disrespected.”70 Indeed, it appears the pirates have read the Guantanamo detainees’ playbook.
Other human rights rules of Western countries discourage arresting pirates in the first place, and certainly militate against trying them in Europe. Britain had reportedly affirmatively instructed its ships not to capture pirates they may come across.71 The Foreign Office feared the Somali pirates could claim asylum under European union human rights law once on board a British vessel, and certainly if brought to Britain for trial.72 Because of the routine nonexistence and brutality of the Somali government, the pirates could quite plausibly claim they would be subject to unfair trials, torture and extrajudicial killing if they are repatriated to their home country. Thus the pirates might be able to stay in Britain indefinitely if acquitted or once released. Obtaining European residency would doubtless be seen as a benefit to many Somalis, and the perceived reward for piracy might only increase the piracy problem.
In the face of such problems, it’s not surprising that Britain in December took the unusual step of signing a memorandum of understanding with Kenya creating a framework whereby pirates captured by the former would be tried by the latter.73 For Britain this has numerous advantages. It escapes the embarrassment of having to release capture pirates, as Denmark has repeatedly done. In Kenya, the pirates do not benefit from European asylum law or the other expensive protections of the European Convention on Human Rights. The proceedings are relatively speedy and informal, with accusations of torture brushed away by the judge with the observation that the defendants don’t appear to be bleeding.74 It is less obvious what Mombasa benefits from this. One might speculate that Britain has promised some sort of foreign aid or other benefits in exchange for the prosecutorial assistance.
C. The free-rider problem
Finally, there is the problem of incentives to prosecute. Policing against piracy faces a significant free rider problem. The nation taking action, either by apprehending or trying pirates, bears all the costs itself. Yet it enjoys just a small share of the global benefit of lower shipping and commodity costs. Nor does the deployment of a multinational force significantly reduce this problem. Each nation chooses whether to prosecute the pirates it apprehends. Indeed, the presence of warships from many nations in the Gulf of Aden actually increases the free rider problem.
Moreover, in individual cases, a nation will know whether a ship being attacked is of particular or direct interest to it. Nations will accept the high costs of prosecution only when their interests are directly affected, such as when its vessels or nationals are targeted by pirates. Thus the two instances where Somalia pirates have been taken to Europe for trial, neither involve UJ. In one case, pirates seized a French yacht. Paris responded with extraordinary vigor, sending commandos into the mainland of Somalia to liberate the passengers and crew, who were being held hostage.75 France identified the pirates, and brought them back to Paris for trial.76 Similarly, Holland plans to try pirates that attacked a Dutch vessel.77 The suspects are being held by Denmark, which says it will not exercise UJ over piracy. Thus, while pirates legally are called enemies of all mankind, in practice states act as if they are enemies of the countries they attack.
The abject failure of the international response to piracy in the Gulf of Aden is a cautionary tale about the limits of international law and the genuine lack of interest nations have in enforcing international law norms when doing so is costly for them. At first glance, the piracy problem has all the hallmarks for a successful international legal response. The scale of the problem is truly international — any country with commercial interests is adversely affected by the endangerment of shipping in an area through which much of the world’s maritime traffic travels. (The seizure of Saudi oil tanker in November sent crude oil prices up by a dollar a barrel). Moreover, those responsible for the problem are a few thousand disorganized, illiterate, poorly armed brigands.78 The only state whose sovereign interests are involved – Somalia – has made it clear that it has no intention of intervening on behalf of the pirates.79 The most august institutions of international law making have focused their attention and authority on the problem. The Security Council has passed five resolutions dealing with Somali piracy in 2008 alone, all under the solemn Chapter 7 authority to permit the use of military force.80 No issue – not even the Israel/Arab question – has been the subject of as many resolutions last year.81 The piracy problem has enjoyed the advocacy of important international organizations such as the International Maritime Organization.82 Finally, piracy is the paradigm crime for which international law authorizes enforcement and punishment. Moreover, in a genuine act of international cooperation the major powers have committed significant naval forces to deal with the problem.83
Thus the spectacle of the international community wringing its hands, looking for a legal solution to the piracy problem, can be understood only as unwillingness to use the international legal tools due to the costs involved. This is ironic given, under the slogan “an end to impunity,” universal jurisdiction has in recent years been presented as a solution to any crime, regardless of the nationality of the alleged perpetrator or victim and regardless of the connection of the state exercising its jurisdiction in the manner.84 European counties have launched prosecutions against political and military leaders of the various countries.85 In all of these cases, the inevitable political overtones always call into question the motives for the prosecution.86
Yet these countries cannot bring themselves to prosecute a single case of piracy universal jurisdiction, even though it means allowing a major ongoing international problem go unchecked. Indeed, the United Kingdom’s decision to render all pirates it seizes to Kenya underscores the strength and weaknesses of the current international regime.
Many of the difficulties involved in apprehending and prosecuting pirates parallel those involved in making cases against detainees held by the United States in Guantánamo Bay. The possibility of a criminal model for dealing with international terrorists seized abroad has been much discussed.87 The apparent rejection of such a model by all Western nations as applied to piracy suggests there is little reason for optimism when it comes to the more politically fraught context of terrorism.
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Eugene Kontorovich is an associate professor at Northwestern University law school and senior research fellow at the Global Law Forum at the Jerusalem Center for Public Affairs. He has written numerous scholarly articles on universal jurisdiction and piracy.