We’ve talked about piracy a few times – it’s certainly been one of the primary unlawful uses of force in global news over the last year. Of course, this week we have some very good news: US Navy Seals rescued the captain and crew of the Maersk Alabama, an American cargo ship seized by pirates.
However, since the rescue, pirates have stepped up operations, seizing four ships and kidnapping at least 60 people over the last 48 hours. Foreign Policy Passport has this exceptional map of global piracy.
Meanwhile, Eugene Kontorovich – an international law specialist who’s written on the history of piracy law – has these posts at the Volokh Conspiracy detailing the problems with prosecuting pirates (as Julian Ku notes, it isn’t even clear where the lone survivor of the attack on the Maersk Alabama will be tried). Ruth Wedgwood has another piece here, and Charli Carpenter analyzes what might be next. Noam Schachtman doesn’t think any of the options are very good.
Without pretending to be an expert in piracy law, I’ll merely note that I think (as Kontorovich seems to) that this is a pretty good microcosm of the difficulties nation-states have had in enforcing criminal law against armed non-state actors; the rules of engagement are unclear; it’s not entirely clear who has a compelling enough interest to take the risks associated with enforcement or whose responsibility enforcement is; post-enforcement, international criminal procedure recognizes considerable protections; and prosecuting states will inevitably be villified by defendants and defense attorneys to change the narrative away from very serious allegations. (As Kontorovich points out, the difficulties with prosecuting pirates exist even though piracy is the original international crime – Douglas Burress cites Cicero for the oft-repeated proposition that pirates are “hostis humani generis,” the enemies of all mankind). Remarkably, millenia later, numerous international navies have adopted a catch and release policy that reflects a distressing underestimation of the threat, in part out of fears that the pirates will claim asylum.
An international force in the Gulf of Aden was a useful first step to combat piracy, but there are a number of steps that will have to be taken to really cut into pirate threats in the Gulf and elsewhere; developing the rule of law in Somalia, where many of the pirates are based and improving monitoring throughout the Gulf are certainly among them. However, one immediate priority has to be beginning the end of catch and release by establishing a coherent international legal framework for prosecuting and imprisoning captured pirates. The legal status quo is not working and, as often, inadequate legal structures are creating poor policy incentives. The international community must do better.
