The Volokh Conspiracy - Urging the Obama Administration To Kill Pirates:

Sounds like good advice from Kenneth Anderson (Opinio Juris):

["]International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked. The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks.["]

I'll post more on this later, but let me put out a query now: Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law? ...

Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain. I am not alone in thinking this an ignominious day for Britain. But it is a double whammy for unintended consequences: it is unlikely that it was ever intended that asylum law would be read to create a municipal duty for Britain regarding detentions for piracy off the coast of Africa -- but it was equally unlikely that it was ever contemplated that a state would appeal to asylum law in order to abandon what might otherwise be seen as an affirmative international law duty to maintain the law of the seas....

I had a conversation with a US Navy officer ... who suggested that the best military course of action would be to equip some number of civilian vessels as decoys -- heavily armed and carrying marines. The best thing, he said, would be for Somali pirates to attack, and then be aggressively counterattacked, in a battle, not the serving of an arrest warrant -- sink their vessel and kill as many pirates as possible. It would send a message to pirates that they could not know which apparently civilian vessels might instead instead counterattack....

[T]here are a number of ways in which an Obama administration might make its mark here.

One is to act in a way to demonstrate that the operation is a military one within the traditional law of the sea responding to piracy -- one fights and detains any who survive in order to prosecute, but the operation is not law enforcement as such. (And the law used to prosecute could usefully be the traditional law of piracy -- common enemies of humanity, etc.)

Second, the US can demonstrate the traditional US commitment to the rule of international law on the high seas and freedom of the seas.

Third, it can act with allies and friends -- India, for example -- to create patrols and the reinforcement of multilateral sovereign duties; many countries find their vessels and interests at stake here. It might even manage to re-acquaint the British government with its international law obligations, by making clear through joint declarations of states undertaking patrols that asylum is not an option.

Fourth, it might even find a way that the US could support the ICC without triggering the usual issues for the US, by sending (or at least opening discussions on sending) captured pirates to trial at the ICC. (I should report, full disclosure, that I am, alas, one of those recalcitrants who think the US should stay out of it, support the servicemen's protection act and oppose its repeal, oppose de-de-signing of the Rome Statute, etc., but am interested in seeing ways in which the US might still usefully cooperate with the ICC on mutual matters of international justice; although I think a traditional customary law court-martial of pirates at sea followed by (televised) hanging has its advantages, too.)

Read the whole post.

Thanks to InstaPundit for the pointer.

	[Eugene Volokh, November 17, 2008 at 2:27pm] Trackbacks Urging the Obama Administration To Kill Pirates: Sounds like good advice from Kenneth Anderson (Opinio Juris): ["]International Maritime officials say at least 83 have been attacked off Somalia this year, with 33 of them hijacked. The pirates are currently holding about 11 ships, including a Ukrainian cargo vessel carrying 33 tanks.["] I'll post more on this later, but let me put out a query now: Might piracy be a relatively easy place for the Obama administration to demonstrate its approach to use of force, multilateralism, and international law? ... Meanwhile, the British have instructed their navy to ignore pirates, out of the remarkable fear that any captured Somali pirates might have asylum claims on metropolitan Britain. I am not alone in thinking this an ignominious day for Britain. But it is a double whammy for unintended consequences: it is unlikely that it was ever intended that asylum law would be read to create a municipal duty for Britain regarding detentions for piracy off the coast of Africa -- but it was equally unlikely that it was ever contemplated that a state would appeal to asylum law in order to abandon what might otherwise be seen as an affirmative international law duty to maintain the law of the seas.... I had a conversation with a US Navy officer ... who suggested that the best military course of action would be to equip some number of civilian vessels as decoys -- heavily armed and carrying marines. The best thing, he said, would be for Somali pirates to attack, and then be aggressively counterattacked, in a battle, not the serving of an arrest warrant -- sink their vessel and kill as many pirates as possible. It would send a message to pirates that they could not know which apparently civilian vessels might instead instead counterattack.... [T]here are a number of ways in which an Obama administration might make its mark here. One is to act in a way to demonstrate that the operation is a military one within the traditional law of the sea responding to piracy -- one fights and detains any who survive in order to prosecute, but the operation is not law enforcement as such. (And the law used to prosecute could usefully be the traditional law of piracy -- common enemies of humanity, etc.) Second, the US can demonstrate the traditional US commitment to the rule of international law on the high seas and freedom of the seas. Third, it can act with allies and friends -- India, for example -- to create patrols and the reinforcement of multilateral sovereign duties; many countries find their vessels and interests at stake here. It might even manage to re-acquaint the British government with its international law obligations, by making clear through joint declarations of states undertaking patrols that asylum is not an option. Fourth, it might even find a way that the US could support the ICC without triggering the usual issues for the US, by sending (or at least opening discussions on sending) captured pirates to trial at the ICC. (I should report, full disclosure, that I am, alas, one of those recalcitrants who think the US should stay out of it, support the servicemen's protection act and oppose its repeal, oppose de-de-signing of the Rome Statute, etc., but am interested in seeing ways in which the US might still usefully cooperate with the ICC on mutual matters of international justice; although I think a traditional customary law court-martial of pirates at sea followed by (televised) hanging has its advantages, too.) Read the whole post. Thanks to InstaPundit for the pointer.