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[Eugene Kontorovich, guest-blogging, April 14, 2009 at 3:55pm] Trackbacks
Piracy Blogging

In my essay, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 California L. Rev. __ (forthcoming, Feb. 2010), I discuss why both legal and military responses to piracy are failing, despite the avowed commitment of all leading nations to deal with the problem, and the massive naval forces devoted to it. The following is adapted from the introduction; at the end of the post, I will say a few words about the direction of subsequent posts.

The unprecedented epidemic of piracy that broke out in the Gulf of Aden last summer lead to a response that at first appears to be the model of international cooperation. An unprecedented naval force from over twenty powerful nations has assembled in the Gulf of Aden. The U.N. Security Council has acted with unusual vigor, unanimously authorizing the use force against pirates even in sovereign Somali territory. This could be seen as a high point for a new international legal order.

Yet the international response to piracy has by all accounts turned out to be a dismal failure. The countries policing the Gulf of Aden refuse to attack or arrest pirates. As the National Security Council put it a few months ago, “Somali-based piracy is flourishing because it is . . . nearly consequence-free.”

Whatever the difficulties of catching pirates, diplomatic and military officials make clear that prosecuting them is even more daunting. This is supremely ironic: piracy is the paradigmatic and oldest of international crimes, and one of the few offenses which international law requires nations to take active measures to suppress. However, a variety of second-order international legal rules, norms, and expectations that pull in the opposite direction have completely frustrated the effort. International rules make detention and prosecution so costly that even the most powerful nations prefer to let the criminals go free, leaving them to continue looting the one-third of world trade that passes through the Gulf of Aden.

Many of the legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. Pirates are fighters in some sense, but they are not state actors or guerrillas as traditionally defined. Thus the “War on Piracy” and the “War on Terror” both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates’ prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of “targeted killings” of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in the just first few months of the recent Somali campaign.

The legal obstacles come from international humanitarian law, including the Geneva Conventions, a variety of human rights treaties, international refugee law, the U.N. Convention on the Law of the Sea, and other sources. None of these measures were designed to obstruct anti-piracy efforts. Indeed, all were promulgated with no thought about piracy whatsoever. But the growth of international legal norms that limit state authority and provide greater protections for individuals have the combined effect of preventing nations from performing the oldest and perhaps most basic law enforcement function in international law: preventing piracy.

The current failure of the piracy campaign offers lessons about one of the most prominent and contentious issues of the day: the most appropriate legal ordinary criminal process or some adaptation of it can effectively deal with alleged terrorists captured abroad. The Obama Administration plans to replace the military commission proceedings at Guantánamo with trials in civilian courts. The failure of an identical scheme in the battle against piracy has important implications for those plans. The refusal of countries involved in the anti-piracy campaign to even attempt prosecution suggests that the legal issues pose daunting and perhaps insurmountable challenges. In short, problems with modern piracy suggest that the criminal approach to suspected terror detainees may prove quite difficult.

***

Subsequent posts will look at the possibility of trying the pirate captured this week in Kenya, as well as some specific difficulties raised by trying pirates, difficulties I suspect the Justice and State Departments are wrestling with right now.

The problems of the piracy campaign also have broader lessons about universal jurisdiction and the over state of public international law today, issues which I hope to explore at the end of this series of posts.

NOTE: I will not be responding to posts or emails from Tuesday to Thursday night due to the Passover holiday, though I will still be posting through an automated feature.

Tracy Johnson (www):
It seems that Ragnar Danneskjöld has finally come to life. Not as a singular person, but an amorphous set of non-state persons that can't be stopped by any navy.
4.14.2009 4:07pm
Dumble:
I suggest that part of the hesitancy and caution is that ambiguity serves the interest of some powers, and court cases that could potentially be decided unfavorably are too much of a risk w/r/t issues more important to those powers than the current state of piracy. For example, look at the situation with Jose Padilla, who was moved into civilian prosecution in order to moot an ugly appeal and vacate a decision that went against the administration. Several articles have opined of the usefulness of the ambiguity w/r/t power distributed between Congress and the White House and between the parties in Congress (i.e. the "nuclear option" on judicial nominees) -- that such ambiguity is an incentive to compromise that would be removed if a bright-line decision was imposed by the courts.
4.14.2009 4:11pm
Brett Bellmore:
It seems to me a new "transnational norm" could resolve the problem: That all pirates should be killed on the spot without exception. That would neatly resolve the problem of trying them, wouldn't it?
4.14.2009 4:17pm
Gabriel McCall (mail):
The legal similarities of piracy and terrorism have been discussed for several years. In The Dread Pirate Bin Laden, Douglas Burgess made the argument that long-established law dating back to the Roman Empire regarding "hostis humana generis" could readily be applied to terrorists, and that was back in 2005. The idea that we now need to turn to a few years of terrorism legal tradition to deal with the millennia-old question of piracy seems very much to have gotten things backwards.

(The crisis ratchet response by which government expands dramatically in response to events of piracy/terrorism is also the subject of some interesting articles, including this one reminding us how the Lex Gabinia, an anti-piracy law, led to massive growth of the Roman government and, shortly, to the downfall of the Republic.)
4.14.2009 4:21pm
Mark Buehner (mail):
Can't we just parachute them into The Hague?
4.14.2009 4:29pm
Oren:

The legal obstacles come from international humanitarian law, including the Geneva Conventions, a variety of human rights treaties, international refugee law, the U.N. Convention on the Law of the Sea, and other sources.

UNCLOS:

Article 105 Seizure of a pirate ship or aircraft

On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. (emphasis mine)

I see absolutely no obstacles from the UNCLOS, aside from the duty to return seized ship to the rightful owner, which was something we do anyway.
4.14.2009 4:35pm
martinned (mail) (www):

Can't we just parachute them into The Hague?

I seem to recall hearing that the Dutch (who have a navy ship in the area) were going to try some of these pirates. But I couldn't find any details when I looked earlier today.
4.14.2009 4:36pm
My Middle Name Is Ralph:

Whatever the difficulties of catching pirates, diplomatic and military officials make clear that prosecuting them is even more daunting. This is supremely ironic: piracy is the paradigmatic and oldest of international crimes, and one of the few offenses which international law requires nations to take active measures to suppress. However, a variety of second-order international legal rules, norms, and expectations that pull in the opposite direction have completely frustrated the effort. International rules make detention and prosecution so costly that even the most powerful nations prefer to let the criminals go free, leaving them to continue looting the one-third of world trade that passes through the Gulf of Aden.


I look forward to your subsequent posts elaborating on the legal and practical difficulties of prosecuting pirates in future posts. I just don't see what they are. Why can we not simply try them as criminals, the same we do with any armed robbers?
4.14.2009 4:51pm
Oren:
MMNIR, robbers have the right to confront any witnesses in favor of the prosecution in court. The sailors will be a world away and unable to testify and the pirates will walk.
4.14.2009 4:52pm
martinned (mail) (www):

MMNIR, robbers have the right to confront any witnesses in favor of the prosecution in court. The sailors will be a world away and unable to testify and the pirates will walk.

Why not schedule the trial so that the witnesses will be able to attend? They have to be in the US sometime. And if neither the ship nor its crew has any connection to the US, have the pirates tried in a country that does have such a connection.
4.14.2009 4:59pm
Oren:

Why not schedule the trial so that the witnesses will be able to attend? They have to be in the US sometime. And if neither the ship nor its crew has any connection to the US, have the pirates tried in a country that does have such a connection.

This is a logistic nightmare. Better to try them in courts martial.

After all, if the procedure of a court martial is good enough for our sailors, it's good enough for pirates.
4.14.2009 5:02pm
martinned (mail) (www):
@Oren: Not exactly. Being subject to the jurisdiction of a court martial is the inevitable consequence of enlisting, which is something "our sailors" voluntarily did. Subjecting someone to the jurisdiction of a court martial could be reasonable given the circumstances, but it is hardly a no brainer.
4.14.2009 5:05pm
Oren:
martinned, courts martial have been used to try foreigners guilty of military offenses.
4.14.2009 5:09pm
martinned (mail) (www):
@Oren: Aren't those Military Commissions? Even then, I'd still say it is dubious unless it is seriously impraticable to put the defendant in front of a normal court.
4.14.2009 5:12pm
Gabriel McCall (mail):
martinned: there is no "normal court" which has jurisdiction over international waters. That's what makes them international waters. If you choose to engage in criminal activity outside of the confines of any state's controlled territory, by what right would you claim the protection of any state's laws?
4.14.2009 5:25pm
My Middle Name Is Ralph:

MMNIR, robbers have the right to confront any witnesses in favor of the prosecution in court. The sailors will be a world away and unable to testify and the pirates will walk.


I confess ignorance of constitutional criminal law procedure. Are video depositions not allowed to be used in crim cases, even where the accused had notice of the depo and the right to cross examine?

What do we do now for crimes committed on the high seas by civilian sailors aboard US merchant ships? Seems like whatever system works for them would also work for pirates.
4.14.2009 5:25pm
martinned (mail) (www):
@Gabriel McCall: You may want to look at the sections of UNCLOS that Oren quoted above. Piracy is a crime against all nations, meaning that all ordinary criminal courts of first instance have jurisdiction. In the US, that follows from the clause in Art. I (8) of the Constitution that gives Congress the power "to define and punish piracies", which Congress has done. (The US Code citation is in this thread or the old one, somewhere.)
4.14.2009 5:39pm
jackson:
I'm with He Whose Middle Name is Ralph

Piracy is a violation of 18 USC 1651 (among other sections) with a penalty of life imprisonment, and also attendant crimes (such as 924(c)). The logistics of keeping a few witnesses on hand and the maintainance of a chain of custody for weapons, video and audio evidence do not seem that daunting. I'm sure that there are more complex cases than this last one, but when you have a group of people sitting in a boat in the ocean holding the captain of a ship at gunpoint, you have a straigthforward criminal case.
4.14.2009 5:40pm
Oren:

I confess ignorance of constitutional criminal law procedure. Are video depositions not allowed to be used in crim cases, even where the accused had notice of the depo and the right to cross examine?

Video depositions (in the sense of pre-taped statements) are never allowed. Video testimony (in the sense of live testimony through a link) are allowed only sometimes, and usually not.
4.14.2009 6:19pm
Harry Eagar (mail):
Whatever the abstract possibilities, the US administration already offered to let the pirates, if they had surrendered, be tried in a Somali court.

Good luck with that.

I have mentioned before that in a closely similar situation, the West Africa Patrol, the rules required that USN captors deliver slavers to thge closest US port for trial. Since these were southern ports, juries would not convict.

When possible -- this is, when a Royal Navy ship was near -- the solution was an extraordinary rendition. English captains just hanged slavers.

It would be good to withdraw from the Geneva Convention and similar chimeras of law that are not really law as we understand it because not evenhanded and get about our business.

From what I hear, the US expended its entire stock of inbternational prestige and good will up througth Jan.9, so what's to lose?
4.14.2009 7:15pm
martinned (mail) (www):

Whatever the abstract possibilities, the US administration already offered to let the pirates, if they had surrendered, be tried in a Somali court.

That depends: Which Somali court? It's not like there's such a thing as an official Somali court system. If they had something like these guys in mind, we might see a few more handless pirates soon.
4.14.2009 7:27pm
Justin Levine:
Given that:

1. Somalia has no legitimate/effective government to speak of.

2. The ocean territory in question is far too vast to constantly patrol with military resources.

Why don't we just quarantine the Somali ports and declare that any ship taking off from them will be presumed to be hostile and fired upon?

This would literally starve the pirates out of their operations. While the Somali coast is admittedly long, this plan would certainly seem to be more doable than constantly monitoring the vast shipping lanes on the open seas.
4.14.2009 9:20pm
Richard Aubrey (mail):
Justin.

You have seen the cries of "blockading Gaza", right?
How long would this last before the left, the world, and most of the VCers roared and sobbed about the atrocity?
4.14.2009 9:25pm
martinned (mail) (www):

Why don't we just quarantine the Somali ports and declare that any ship taking off from them will be presumed to be hostile and fired upon?

Because that would be an act of war, and therefore illegal under the ius ad bellum, including the UN Charter.
4.14.2009 9:36pm
Richard Aubrey (mail):
martinned.
Does the UN charter apply to pirates?
Somehow I figured you'd be the one to make the case that, not only can nothing be done, nothing should be done.
4.14.2009 9:47pm
martinned (mail) (www):
@Richard Aubrey: I'm in favour of most things that have so far been suggested, although I'd prefer some suggestions (trials) over others (just simply shooting a lot). Blocking a country's ports is an act of war against that country, in this case Somalia. The fact that Somalia does not have a government, doesn't mean that the Charter rules on ius ad bellum no longer apply.
4.14.2009 10:27pm
Richard Aubrey (mail):
martinned. Yeah. You'd prefer trials, just as long as the conditions imposed precluded their ever happening.
A country is responsible for its borders. If it cannot or will not manage its borders, to the detriment of others, others are not bound to respect those borders, either. To take it another step, if it cannot manage its borders, is it really a country?
With a couple of exceptions such a Gaza and Antarctica, every dry spot on the globe belongs to a nation state. That means we think of nation state borders necessarily having a nation state on the other side. Why? I'm sure somebody could find a legal cite presuming it, but in practical terms, why must it be true?
4.14.2009 11:09pm
cubanbob (mail):
On the other hand Somalia is engaging in acts of war by simply not attempting to control the pirates.The fact that Somalia does not have a government, doesn't mean that the Charter rules on ius ad bellum no longer apply. The door swings both ways.

As the pirates and the terrorists are outside of any recognized legal system they should simply be executed on the spot when captured.
4.14.2009 11:17pm
Justin Levine:
martinned -

I think you've given short shrift to my first point:

Somalia has no legitimate central government to speak of. So the notion of it being an 'illegal act of war' is somewhat specious.

Also - aren't you forgetting that the U.N. already specifically authorized nations to go ashore in Somalia to fight piracy?

http://www.msnbc.msn.com/id/28258830/

Are you suggesting that its OK to invade Somalia by land in order to fight piracy (based on the UN vote), but its still somehow illegal to block its ports?

I hope you don't find me rude when I tell you that honestly don't understand your response at all. It seems more like a reflexive knee-jerk response rather than a serious rebuttal to my proposal.
4.15.2009 3:05am
martinned (mail) (www):
@Justine Levine: Thanks, I'd overlooked that UNSC resolution.

The key paragraph is this one:


6. In response to the letter from the TFG of 9 December 2008, encourages Member States to continue to cooperate with the TFG in the fight against piracy and armed robbery at sea, notes the primary role of the TFG in rooting out piracy and armed robbery at sea, and decides that for a period of twelve months from the date of adoption of resolution 1846, States and regional organizations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia for which advance notification has been provided by the TFG to the Secretary-General may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG, provided, however, that any measures undertaken pursuant to the authority of this paragraph shall be undertaken consistent with applicable international humanitarian and human rights law;

(TFG is the Transitional Federal Government of Somalia.)

I think that if one were so inclined, this paragraph could be read as authorising some pretty drastic measures, but if I were the legal advisor of a government considering blocking the ports, for example, I´d advise to ask for an explicit authorisation resolution.

BTW, I´m always pretty sceptical about the claim that a series of criminal acts by private parties adds up to an act of war. That is only rarely the case when we´re talking about terrorism, and in this case it seems quite unlikely.
4.15.2009 5:54am
Richard Aubrey (mail):
martinned.
Missed again. The series of criminal acts does not add up to an act of war. The failure or reluctance of the government to control them is the point.
4.15.2009 7:52am
martinned (mail) (www):

Missed again. The series of criminal acts does not add up to an act of war. The failure or reluctance of the government to control them is the point.

Nit picking. How much crime does a government have to fail to stop before it amounts to an act of war? And does it matter whether the government in question realistically is able to stop said crime? All of this is a very blurry question, and imho only in exceptional circumstances should any of this add up to an act of war.
4.15.2009 8:11am
Richard Aubrey (mail):
martinned.
Not nitpicking. It's the point.
"How much?" As much as the victims feel like standing, I guess. The folks who would be going to war, the nations, I mean, know there's a cost now and in the future. In the meantime, there's a cost now and in the future exacted by not acting. Both will have to be compared and considered.
So the victims aren't going to go to war, so to speak, for minimal reasons.

I recall, studying subSaharan Africa decades ago, that there was a great deal of whining there and here that the borders of the various countries were laid out by mean ol' European colonialists, many at the Congress of Berlin, with no consideration of tribal boundaries, cultural issues, or resources sufficient to make a nation at least partly self-sufficient. When you consider the extent of straight-line borders on a map of Africa, compared to that in Eurasia, that seems pretty obvious. The implication is that the borders were in some way illegitimate.
Maybe I'll agree to that. "Somalia. You were put together by people who had no business making you a country. Presto. You're not a country. Sure as hell aren't acting like one."
Or not. But the folks complaining about borders either knock it off or follow their own logic. The latter might put Somalia as a nation-state in some doubt.
4.15.2009 10:33am
martinned (mail) (www):
@Richard Aubrey: First of all, Somalia is certainly not a state. Or - if one will - it is a failed state, which amounts to the same thing. Whether it is a nation, I have insufficient knowledge to say.

Secondly, there is a very simple framework for dealing with this kind of thing. This piracy situation is certainly a breach of the peace under art. 39 of the Charter, meaning that the Security Council may authorise whatever measures are necessary to remedy the situation. Several such resolutions have already been passed, most importantly resolution 1851 of December last year. Get the UNSC to sign off on it, and you're good to go, free to blockade whatever ports the pirates use.

Alternatively, it might be useful to start from the reality on the ground. The UNSC resolutions tend to treat the Transitional Federal Government of Somalia as the representatives of the country, the de jure government. To the extent that they exercise sovereignty over the ports in question, but are unable to effectively police them, their authorisation would be sufficient for foreign navies to come in and do it for them. (Resolution 1851 refers to several TFG requests for assistance.)

To the extent that the pirates use ports in Somaliland or Puntland, it would be possible to send the authorities of those territories a "fix it or let us fix it" message, even though no one recognises these "states". (Here's a full map of the political situation in Somalia.)

My point is, there are plenty of ways to deal with this situation. Unilateral use of force against Somalia, however, is not OK.
4.15.2009 10:55am
Richard Aubrey (mail):
martinned.
If the use of force is not authorized by whoever owns the Somali government building in Mogadishu this week, what now?
You presume the Somalis would authorize outsiders to fix the problem. What's in it for them? Even presuming the government isn't getting a cut, they have far more immediate issues on hand, like seeing the sun come up tomorrow, and the pirates'buddies in Mogadishu could certainly make that unlikely if they felt like it.
So if the Somali government either denies outside force or doesn't respond at all, that leaves unilateral action.
The UNSC includes at least three countries which have thwarted us out of spite or self-interest in the recent past, Germany, Russia, and China. So if we can't get them to go along, we are screwed and so is every seafaring nation?
I think you think far too much of the legitimacy of the UN.
4.15.2009 11:19am
martinned (mail) (www):

The UNSC includes at least three countries which have thwarted us out of spite or self-interest in the recent past, Germany, Russia, and China. So if we can't get them to go along, we are screwed and so is every seafaring nation?

Read the resolution they already agreed upon in December.



You presume the Somalis would authorize outsiders to fix the problem. What's in it for them?

More control over more territory.
4.15.2009 11:45am
Richard Aubrey (mail):
martinned.
Wrong about the control. If we clean out the pirates, we clean out the pirates. The local gunsels keep control of the land.
Unless you think we'll be hired by the Somali government to do the controlling.
4.15.2009 11:50am
martinned (mail) (www):
@Richard Aubrey: To the extent that the nominal ruler of a piece of territory is having difficulty taking on the pirates that operate out of said piece of territory, us coming in and doing something about those pirates would increase the ability of the aforementioned ruler to actually control the piece of territory he is supposed to rule.
4.15.2009 12:26pm
Richard Aubrey (mail):
martinned.
The Somalis aren't being buffaloed by the inhabitants of the Somali seashore with their writ running everywhere else.
They can't control their capital. If we clean out everything in Somalia that a realtor could plausibly claim has "beachfront access", nothing would change.
If the government was caught helping or asking the US to do it, they'd be toast at the hands of one or another clan/gang running the show outside the government building's gates.
I don't mean to use "toast" as a metaphor, either.
4.15.2009 12:59pm
ohwilleke:
Epidemic of piracy, yes. Unprecedented, no.

Just a few years ago there was a major wave of piracy in and around Indonesia and Malaysia. Much further in the past Central American based piracy was common place. It has had multiple waves in the Mediterranean.

Indeed, I doubt that there has been a single generation of humanity that hasn't have at least one wave of it somewhere in the world in the past three hundred years.
4.15.2009 6:42pm
Guest12345:
I think the solution is to designate the various warlords as the government of regions of the failed state of Somalia. Then just declare war on any of the new nations that engages in piracy. I think it's a different situation to have to deal with a recognized country than to try and pick through the random countryside for outlaws.

Seems like it would bring some stick and carrot onto the warlords to legitimize. With an onus on them to bring about lawfulness in the area and raise the standard of living. Etc.
4.15.2009 8:56pm
Richard Aubrey (mail):
Guest. You make some good points--fleshing them out would give Tom Clancy another couple of million hardcover sales--about the intersection of civilized law and western military doctrine, with areas which are not the nation-states anticipated in the former.
The barbs are acting in the interstices with enthusiastic help from western liberals and lawyers who are bored with doing wills and deeds.
4.16.2009 10:04am

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