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.

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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.