The Times (London) reports (thanks to Overlawyered for the pointer):
The Royal Navy ... has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.
Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.
The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.
In 2005 there were almost 40 attacks by pirates and 16 vessels were hijacked and held for ransom. Employing high-tech weaponry, they kill, steal and hold ships’ crews to ransom. This year alone pirates killed three people near the Philippines....
Britain is part of a coalition force that patrols piracy stricken areas and the guidance has troubled navy officers who believe they should have more freedom to intervene....
A Foreign Office spokesman said: “There are issues about human rights and what might happen in these circumstances. The main thing is to ensure any incident is resolved peacefully.” ...
Can this possibly be a correct summary of the Foreign Office directive? It's one thing not to return the pirates to Somalia, but it's quite another to instruct the Navy "not to detain" them. (They may, after all, be tried in places other than Somalia.) Can anyone point me to a more complete summary of the situation, or to the text of the Foreign Office directive? If the story is reasonably accurate, then this is just appalling.
Also, can it really be the case that "[t]he main thing is to ensure any incident is resolved peacefully"? I would think that the main thing should be to minimize harm caused by this incident and the others that are likely to follow. If resolving each incident as peacefully as possible leads to an increase in the number of incidents (some of which will inevitably not be resolved peacefully, and all of which will involve robbery, kidnapping, and other harms even if they don't lead to death or serious injury), and modestly increasing the risk of violence in any particular case will help kill off some pirates, capture others, and deter still more for future cases, then the "resolve[] peacefully" principle may do more harm than good.
Related Posts (on one page):
- "Captain Kidd, Human-Rights Victim":
- "[Don't] Detain Pirates Because Doing So May Breach Their Human Rights"?
That about sums up the two sides in my mind. It's really a pathetic situation. And it actually quite sad how drastically Britain has declined as a great nation over the last couple of decades.
A commenter on the Times site has what I think is an elegant solution, though. He notes that the Royal Navy should heed the Foreign Office's directive to a tee by sinking every pirate vessel on sight with all hands on board. This would live up to the Foreign Office's "no detention" directive and is perfectly compatible with maritime law's treatment of pirates.
Perhaps, then, instead of blood sucking foreign nations, Gordy et al realize that poverty is at the core of mass crime (including piracy). Perhaps, investing overseas for the good of local people is cheaper then runnig at home The Prison Industry.
Hey look here the French are having some pirate trouble. It's right here in the paper! Hmmm, you know, this is a good time to issue some guidance on piracy.
When my son was in high school, one of his textbooks (for a religion class) had a question about what to do when hijackers demanded money to release captives. The "right" answer, according to the book, was to pay, so that no one got hurt. I believe another option was to risk harm to the hijackers with no danger to the captives. (The same book had a story about prison life in which convicts put on plays and poetry readings, while mean guards watched.) The book was published by Ave Maria press, which I think specializes in religion textbooks for Catholic schools. I don't think any of the students took it seriously, but it does show that there really are people who think that peace in the short run is all that matters.
Legally speaking the Foreign Office policy makes sense, but the ECHR is really unsound and should be scrapped.
(Really, do you have a better explanation?)
"Oh, better far to live and die, under the brave black flag I fly"
The Foreign Office is correct that refoulement to Somalia would violate the ECHR, but that is not the only alternative. Piracy is a crime of universal jurisdiction, so Britain can try the pirates itself. Or, as suggested above, save the trouble of a trial and sink pirate ships on sight.
The principle enunciated by the court in its Soering judgment is not fact specific to the death row phenomena. The court in Soering enunciated a broad rule under which a contracting state could breach Article 3 (prohibition on torture and inhuman or degrading treatment and punishment) by extradition or deportation of any person to a situation where it would be foreseeable that he would suffer treatment or punishment forbidden by Article 3. That principle is absolute and is not subject to any derogation by the contracting state, and is applicable regardless of the conduct or culpability of the individual.
The principle first outlined in Soering v. United Kingdom was subsequently extended by the court in its Chahal judgment. In Chahal, the British government sought to extradite an Indian national on the assurance of the Indian government that he wouldn't be tortured, but the court was not impressed.
Whether Somalia has a functioning government is not material to the applicability of the Soering principle, because the protection of Article 3 is not subject to any state action like limitation. The ECTHR has in fact ruled on other occasions that a contracting state must provide some minimal protection to individuals against third party private conduct violative of Article 3.
And the court has even ruled that the government may breach the human rights of respect for private and family life by not restricting private speech by third parties, see CHAMBER JUDGMENT IN THE CASE OF VON HANNOVER v. GERMANY [Newspaper publication of facts about applicant breached right to respect for private and family life under Article 8], and Chamber judgment in the case of PFEIFER v AUSTRIA [Publication of defamatory facts about applicant breached applicant's right to reputation under Article 8].
Well, even putting the pirates on trial wouldn't change the outcome under ECHR, the only result after completion of sentence I can imagine would be asylum granted on humanitarian grounds and likely lifetime welfare , of course paid by the taxpayer.
Sinking pirate ships on sight is a nice idea, but since it's not an armed conflict, it's likely that a deliberate take no prisoners policy might equally violate the proportionality principle under Article 3 limiting the permissible circumstances for the depirvation of human life.
And even if the court is willing to accept sinking of a pirate ship is taking place in the context of an armed conflict, other caselaw has applied usual Article 3 proportionality to armed terrorists,
see judgment in the case of McCann and others v. The United Kingdom. It's therefore unlikely that the British government could avoid the human rights quandary simply by instituting a take no prisoners policy which would either subject pirates to refoulement in violation of the Soering principle or to depirvation of life in violation of other aspects of Article 3.
The government is really stuck in the mess created by the ECHR. Norway has a similar problem with mullah Krekar whom a court has ruled constitutes a threat to national security, but can't nonetheless be deported to Iraq, because deportation would violate the ECHR.
the permissible circumstances for the deprivation of life and its correlary proportionality principle is of course not found in Article 3 but in Article 2.
Haven't you heard? Dead men tell no tales. Arrr!
@Alan Gunn: I'm not a Christian myself, but that textbook seems to make sense from a "What would Jesus do?" POV:
As for the legal problem, the correct answer seems to be to try them in the UK, since, indeed, piracy is a crime of universal jurisdiction. I can imagine, though, that the UK government would rather not have that hassle, since these pirates could most likely never be returned to Somalia, not even after they've served any prison sentence they might receive.
Military policy against pirates and Jihadists should be to take no prisoners.
Hey, this is fun!
[i keed!]
Referencing an earlier point above - it is probably just coincidence that Lord Halifax was Foreign Secretary in 1940 (though Gaius Marius, your history is seriously deficient if you think Churchill was on the only politician in Britain willing to fight on in 1940 - hyberbole tends to fall flat when it is utterly inaccurate).
Not an armed conflict? Pirates are often armed, frequently heavily so (e.g., with RPGs, heavy machine guns, etc.) See ICC Commercial Crime Services, Weekly Piracy Report, at http://icc-ccs.org/prc/piracyreport.php.
The bearing of such heavy arms in a demonstrated manner with hostile intent on the high seas should be cause enough to summarily sinks those ships. The British Navy use to be some of the toughest sea dogs on the waves; today they've apparently been virtually neutered by political patsies back on land.
Sex Offenders are the other form of terrorist according to the government, because you don’t know who they are or where they are. So the government says to protect us and our children they will implant V Chips, not only in us, but in our cars, passports, identification, and run surveillance on our streets, homes, friends, and conversations
96.5% of sex offenders are family members or friends to the victim, 97% are male, and only 3.5% of convicted sex offenders reoffend sexually... Therefore the odds are YOU are more of a threat to commit a sex offense than a "sex offender". So what will the government do next???
How can we prosecute people for life knowing how easy it is to be charged and convicted of a sex offense? Do you realize how many death row inmates and sex offenders have been found innocent due to D.N.A. every year? They convict sex offenders every day with merely ones word against anothers, today, a simple lie can wreck your life!
How do V Chips, satellites, surveillance, and treating us like criminals stop our children from having a sexual encounter, or save us from terrorists?
I have lost confidence in our system and I will not judge a man because of the ugly pictures they paint of sex offenders by means of using horrible crimes other men committed in the past.
Common sense should tell us you can’t judge a person with something someone else has done, it doesn’t even make sense, and to let them "bend" or ignore our rights in order to punish better or protect us is equally absurd.
I've had enough of these laws that can only work if Americans rights are ignored!