What Do You Do with a Captured Pirate?

Sunday, March 1, 2009
Ruth Wedgwood

High-stakes piracy poses a serious threat to the ability of Persian Gulf states to ship oil to Europe and to the ability of Chinese workers to sell their manufactured goods in wealthy markets. It is a threat to the economy of Egypt, with the potential loss of annual canal tolls that reach $5 billion and constitute Cairo’s third-largest source of foreign currency. It is piracy that imperils Israel’s ability to obtain oil through the port of Eilat. And it is a contagious demonstration of smallbore technology that can incapacitate major operating systems.

So why is it so hard to stop?

Partly, it’s the headache that Somalia caused the last time the West tried to get involved. Somalia is falling apart. Clans and militias wield far more power than the government, and in late 2008, Somalia’s nominal president resigned. Once the current Ethiopian occupation force withdraws, the only source of outside order will come from 3,400 African Union peacekeepers, a mission that the UN secretary general has said requires 10,000.

There is no easy way to control a country that swallowed tens of thousands of UN peacekeepers and American combat personnel in the interventions of the early 1990s.

Certainly no Democratic president is likely to forget how Somalia damaged the Clinton presidency in its early years. In the face of a Somali famine, U.S. Marines landed on the beach in 1993, with the mission of distributing food and restoring a semblance of organized government. The mission morphed into an attempt to capture a disruptive Somali clan leader and former army commander named Siad Barre—and ended in the debacle of Black Hawk Down, when an American chopper was shot down over a neighborhood in Mogadishu and nineteen Army Rangers were killed in an attempt to rescue the pilot.

The trauma of that episode was so profound that Bill Clinton’s Presidential Decision Directive 25, which was originally designed to build an American role in UN peacekeeping, instead became a “just say no” checklist of prerequisites for any future mission. The debacle of Mogadishu was the immediate reason that the United States refused to intervene in the Rwandan genocide a year later.

U.S. Army studies about the cross-wiring of command that contributed to the Somalia disaster, and the reported involvement of Al-Qaeda in training the Mogadishu militia, have not lessened the trauma.

Fifteen years later, the situation on the ground in Somalia remains treacherous. Although the new form of offshore fishing for piratical booty was apparently an indigenous start-up, the collapse of Somalia’s government has left various Islamist groups jockeying for power. A radical Islamist militia called Al-Shabaab has seized control of several coastal towns in Somalia, including Merka and Kismayo. If it should reach as far north as the port city of Eyl, the most valuable quarry from the pirate captures would also fall into its hands, including the hundred-million-dollar cargo of the Saudi oil tanker and a Ukrainian vessel carrying thirty-three battle tanks. The decision of the upstart pirates to waylay a Saudi vessel has brought criticism from at least one Shabaab militia leader. But there are also reports that militia members have claimed part of the millions in ransom paid by nervous major shipping companies.

In this scenario, “merchant piracy” could morph into “terror piracy”—providing funds for Al-Qaeda and disrupting the civilized world’s logistical systems of product delivery.

The West watched for years as “conflict diamonds” fueled and funded the civil wars in Africa. In the same way, terror piracy could provide plump financing for local Islamist groups and their international affiliates and sponsors.

And there is the lure of chaos. Directly across the gulf, in the Yemeni port of Aden, an armed American destroyer was at anchor in October 2000, when a small skiff sailed up, loaded with explosives, and blew a forty-foot hole in its hull. The blast killed twenty-seven sailors and wounded thirty-nine. The USS Cole was sent to dry dock for eleven months. Pirates could target ships for sinking, rather than collecting ransom, including oil tankers that could threaten enormous environmental damage.

So why has the West’s response at sea been so anemic? In part it is logistical; in large part, it is a professional deformation of the law.

On the practical side, the maritime approaches in the Gulf of Aden are huge—as large as the state of Texas. Commercial vessels arrive in the gulf at a rate of sixty a day and vary widely in their maximum speed. The offshore reach of the pirate raids has surprised all observers, with recent attacks taking place as far as five hundred miles from shore in the Indian Ocean. Fishing boats regularly come from villages on the Yemeni and Somali coastlines, and there is no organized system of identifying them. The skiffs used in the pirate attacks sometimes lurk in the shadow of mother ships that can sail farther afield and look like fishing vessels.

Yes, there could be a safe-passage convoy system, of the type seen in the Persian Gulf during the Iran-Iraq tanker war in the 1980s. But hovering while a convoy muster takes place can pose its own hazards. And though naval ships have been sent by the European Union, India, China, Malaysia, Russia, Iran, and the United States, the total flotilla consists of fewer than twenty ships, deployed along a coastline that is more than two thousand miles long.

In the face of the threat, the police actions of participating states have been quite neurotic. The UN Security Council agreed in November 2008 that foreign states could target pirates within Somalia’s territorial seas—that is, within twelve miles of shore—as long as they had a letter of consent from the temporary provisional government of Somalia. In December 2008, the Security Council agreed, under the authority of Chapter VII of the UN Charter, that foreign states could take action ashore and in Somali airspace to root out pirate lairs, again as long as the transitional provisional government consented.

“Merchant piracy” could morph into “terror piracy” — providing funds for Al-Qaeda.

If that transitional government collapses, however, it will require another visit to UN headquarters in New York City. And the diffidence felt by ordinary governments toward the wreckage of Somali sovereignty is shown by a new form of UN-speak—namely, a recital in the resolution itself that nothing done pursuant to its authority can be seen as changing ordinary law or custom in the Law of the Sea.

Plenty of action could take place under this authority; the only trouble is that the West is still tangled in the postmodern confusion of the law of armed conflict, human rights law, solipsistic views of national jurisdiction, and a lack of common sense.

All this is quite surprising to any legal historian, for the history of international law shows that piracy was considered the gravest act against the good order of the state system. Although criminal sanctions are traditionally a local affair, the idea of “universal” jurisdiction first arose over issues surrounding piracy. From the eighteenth century onward, any state or sovereign could prosecute a pirate for his robberies at sea—even if the ship, crew, cargo, pirate, and location had no connection to the avenging state. As Justice Joseph Story explained in piracy cases heard in the U.S. Supreme Court, pirates were hostis humanis generi—enemies of all mankind. Therefore, any sovereign could prosecute them and, indeed, had an obligation to do so.

The first American Congress passed a long-arm statute in 1790, allowing federal authorities to prosecute any piracy committed on the “high seas.” This catch-basin penal jurisdiction was frequently exercised in the nineteenth century and is still good law. In the Gulf of Aden, a small complication may arise, as lawyers like to say, in the technical reach of the federal piracy law. Within twelve miles of a foreign coastline, the waters are not high seas but rather territorial seas. Commercial ships can sail in this zone by the right of “innocent passage” as well as “transit passage” through recognized straits. But the rule of lenity—a conservative rule in construing criminal statutes—could pose a problem in applying the U.S. piracy statute unless it is quickly broadened.

Other states may have difficulties of sensibility as well as law. On December 25, 2008, Somali pirates swarmed the Wadi al-Arab, an Egyptian cargo vessel, and shot a sailor. A German naval helicopter from the frigate Karlsruhe interrupted the attack and treated the wounded sailor. But in a stunning turnaround, the pirates were then released. EU task force commander Achim Winkler told a BBC reporter that Germany would detain pirates only when a German ship was attacked or German citizens were killed or injured. The BBC program was called, with no apparent irony, Europe Today.

What could possibly account for such self-defeating actions? A policy of “catch and release” may be good for recreational fishing. But it doesn’t provide either deterrence or incapacitation against the perpetrators of serious international crimes.

Yes, it is true we are back to gnawing issues familiar from the post–September 11 world and—still unresolved among NATO allies. Can states ever exercise the right of capture outside the limits of criminal prosecution, and if so, what is to be done with the prisoner? Only the U.S. Supreme Court and the new Democratic president of the United States may know the answers.

The West might ultimately have to take direct police action against the most notorious pirate ports, where the captive crews and cargoes are kept.

At a minimum, the UN Security Council, or at least states taking part in the gulf flotilla and all members of NATO, should fix this loophole quickly. A further council resolution could clarify the international right of prosecution of acts of maritime piracy in waters of various categories— including high seas, exclusive economic zones, and transit straits—especially in the situation of a nongoverning state. Treaty amendments should make such prosecutions the duty of the capturing state, unless it transfers the perpetrator to another state willing to handle the prosecution.

To be sure, a coastal sovereign usually takes care of its territorial waters. But in an age of ungoverned spaces and failed states, there should be no maritime zones of anarchy. (There is already a conditional right of entry into Somali waters, for purposes of prevention of piratical acts.) The Security Council resolution should explicitly authorize the capture and prosecution of the pirates by the entering power.

In the view of the United States and some other respectable governments, the only practical way of realizing this implied duty to prevent mistreatment is to seek robust and serious diplomatic assurances of proper treatment when a suspect is extradited or returned to his country of origin. Dozens of countries in the world have poor legal systems and violent modes of policing. When an illegal immigrant, criminal suspect, or military combatant is captured, any possible return should be conditioned on solemn assurances, at the highest level of political authority, that his or her safety and proper treatment will be guaranteed. This promise, obtained in writing if possible, can be supplemented by a promise that the person will be made available for private visits by a monitoring agency or power.

The offshore reach of the pirate raids has surprised all observers.

But the absolutist view has carried the day, at least among the courts and scholars that specialize in human rights: that diplomatic assurances can rarely and probably never suffice. Once a person has succeeded in escaping from a tendentious regime, this argument goes, no one has the right to return him against his will, even in the face of solemn diplomatic promises, because those promises may not be kept.

This expansive reading of non-refoulement has been applied implacably by the United Kingdom in its handling of suspects in the conflict with Al-Qaeda. Even an illegal immigrant suspected of plans for violent and catastrophic terrorism will not be returned to his country of origin, based on diplomatic assurances, if that country has a history of tolerating physical mistreatment. And the rule would be applied, seemingly, even when a noncitizen convicted of mass murder or bombing had finished serving his sentence.

It should not be a surprise—though it is shocking in the context—to see the consequences that flow from this rule. In a confrontation with pirates, it is permissible and lawful to use deadly force to prevent the pirates from succeeding in a violent attack. The Indian Navy blew a pirate ship out of the water during an attack in the Gulf of Aden. But what if the pirates cease and desist and, in the nick of time, shout, “We surrender” and manage to lay down their arms?

Then, as a former secretary of state might choose to say at the Gridiron Club revue, it’s yet another twist on the Pottery Barn rule, namely, “You caught it, you keep it.” The capturing state can attempt to prosecute the pirates for a crime and sentence them to a term of years. But all good things come to an end. And after the sentence is over, what then? A piratical “control order” in the British style, in which an ankle bracelet confines each brigand to stay in his new British flat and far away from motorboats?

It is not surprising how this story comes out. Various participating naval powers in the Gulf of Aden flotilla have refused to arrest pirates. An astonishing number of countries have decided that the only practical solution is to interrupt pirate attacks but then put the puzzled pirates back in their boats for a return to shore.

For example, according to the London Times, the Royal Navy was “told by the Foreign Office not to detain pirates” because of the “risk that captured pirates could claim asylum in Britain.” In addition, sending them back to Somalia might risk the imposition of harsh Islamic penalties such as hand-chopping or beheading. But the British Foreign Office apparently failed to consider the practical arrangement used for other interstate surrenders, namely, obtaining and monitoring a promise that certain penalties will not be imposed. Human rights law can be made to work, when it is not used as a political excuse.

To be sure, other useful things can be done. A UN consultative group has just toted up a sensible list, including economic aid to Somalia’s pastoral agriculture and fishing industry and strict enforcement against foreign fishing boats that poach in Somalia’s waters. The ordinary hopes for a poor and divided country also apply—including assistance in building up courts, police, and a stable government.

Registration of all fishing skiffs and a ban on high-speed skiff motors would also help. Violations could result in seizure. Merchant shipping could be outfitted with infrared systems to detect small fast targets and armed with sound and light cannons, high-pressure water hoses, and electrified perimeter fences—at least when passing Djibouti to enter the Gulf of Aden.

And the West might ultimately have to take direct police action against the most notorious pirate ports, where the captive crews and cargoes are kept. This is a last resort, for those who remember the events of 1993.

But, at a minimum, there is no excuse for the West to engage in a recurrent cycle of capture and release—in a confusion of military action, law enforcement, and passivity. Kabuki theater will not suffice to quell real-life pirates. International law was founded on the claim of freedom of the seas. We also believe in human rights. But the two can be enforced together.