The Volokh Conspiracy - "Why Don't We Hang Pirates Anymore?"

Piracy appears to be on the rise in the Indian Ocean. Is it because international law and individual nations are too light on pirates? Bret Stephens thinks so.

By the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: "A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained."

Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century — a civilizational achievement no less great than the elimination of smallpox a century later.

Today, by contrast, a Navy captain who takes captured pirates aboard his state-of-the-art warship will have a brig in which to keep them securely detained, and instantaneous communications through which he can obtain higher guidance and observe the rule of law.

Yet what ought to be a triumph for both justice and security has turned out closer to the opposite. Instead of greater security, we get the deteriorating situation described above. And in pursuit of a better form of justice — chiefly defined nowadays as keeping a clear conscience — we get (at best) a Kenyan jail. "We're humane warriors," says one U.S. Navy officer. "When the pirates put down their RPGs and raise their hands, we take them alive. And that's a lot tougher than taking bodies."

Does this mean we should return to 18th Century standards? Not at all. An automatic death sentence for pirates could cause violent escalation of confrontations and increase the loss of innocent life, among other things. But it may be time for the international community to take a more aggressive stance against piracy so as to defend freedom of the seas.

UPDATE: This story illustrates the perils of a shoot-first approach to piracy.

A Thailand-based fishing company has claimed that the pirate 'mother ship' the Indian Navy destroyed in the Gulf of Aden last week was one of its deep sea fishing trawlers and was being hijacked by pirates when it was blown up by INS Tabar.

To be clear, I have no concern for pirates. Piracy is one of the oldest, and most serious, crimes under international law, and should be treated as such. Yet it is important to ensure that anti-piracy actions do not harm innocents -- such as those mistakenly identified as pirates or those victimized by pirates.

	[Jonathan Adler, November 25, 2008 at 6:32pm] Trackbacks "Why Don't We Hang Pirates Anymore?" Piracy appears to be on the rise in the Indian Ocean. Is it because international law and individual nations are too light on pirates? Bret Stephens thinks so. By the 18th century, pirates knew exactly where they stood in relation to the law. A legal dictionary of the day spelled it out: "A piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgment may be obtained." Severe as the penalty may now seem (albeit necessary, since captured pirates were too dangerous to keep aboard on lengthy sea voyages), it succeeded in mostly eliminating piracy by the late 19th century — a civilizational achievement no less great than the elimination of smallpox a century later. Today, by contrast, a Navy captain who takes captured pirates aboard his state-of-the-art warship will have a brig in which to keep them securely detained, and instantaneous communications through which he can obtain higher guidance and observe the rule of law. Yet what ought to be a triumph for both justice and security has turned out closer to the opposite. Instead of greater security, we get the deteriorating situation described above. And in pursuit of a better form of justice — chiefly defined nowadays as keeping a clear conscience — we get (at best) a Kenyan jail. "We're humane warriors," says one U.S. Navy officer. "When the pirates put down their RPGs and raise their hands, we take them alive. And that's a lot tougher than taking bodies." Does this mean we should return to 18th Century standards? Not at all. An automatic death sentence for pirates could cause violent escalation of confrontations and increase the loss of innocent life, among other things. But it may be time for the international community to take a more aggressive stance against piracy so as to defend freedom of the seas. UPDATE: This story illustrates the perils of a shoot-first approach to piracy. A Thailand-based fishing company has claimed that the pirate 'mother ship' the Indian Navy destroyed in the Gulf of Aden last week was one of its deep sea fishing trawlers and was being hijacked by pirates when it was blown up by INS Tabar. To be clear, I have no concern for pirates. Piracy is one of the oldest, and most serious, crimes under international law, and should be treated as such. Yet it is important to ensure that anti-piracy actions do not harm innocents -- such as those mistakenly identified as pirates or those victimized by pirates.