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The Somali Pirates:
Strategy Page, one of the very best websites on military matters, explains why the pirates are immune from attack, and, under current conditions, will never be suppressed. (Further explanation here.) Ironically, while international law does not deter the pirates, it does deter their victims, and thus encourages piracy. Which is but a small example of how contemporary international law has been perverted into a tool against international commerce and civilization, whose protection was the very purpose of the creation of international law.
UPDATE: Wonderful essay by Mark Steyn on the same topic, noting, inter alia, the effect of U.K. government interpretation of the European Human Rights Act.
The Piracy Problem.
Consider two approaches—
The Stick. If the United States and other countries simply blew up any ship captured by pirates, including the crew and the pirates themselves, then, after a few demonstrations, piracy would no longer be a profitable activity. The pirates, rational profit-maximizing agents that they appear to be, would conduct backward induction and then find something else to do with their time. After the short term costs are incurred, the sea lanes would be safe until memories faded.
The Carrot. Pay the pirates to stop engaging in piracy. That was the approach of the United States and other maritime powers in the early nineteenth century; for a number of years, they paid ransom as necessary; eventually, the process was formalized as tribute payments, which made the initial capture of the ship and crew unnecessary. As Michael Oren’s recent book makes clear, this practice was entirely rational; when the United States finally decided to destroy the pirates, the naval costs were far greater than the tribute payments had been. The various U.S. administrations paid the ransoms as long as they could but eventually bowed to popular pressure incited by a sense of national shame.
Each approach has characteristic costs and benefits. The stick lacks credibility. The pirates know that no government will kill its own people, nor can governments or shipping companies refuse to pay ransoms. The problem is not so much the doctrine of double effect as the political difficulty of inflicting harm on innocents even to advance the greater good. The carrot gives pirates incentives to invest in more destructive capabilities and draws more people into the labor market. Depending on just how costly piracy is for the pirates, the implicit tax imposed on shipping could end up significantly suppressing economic activity. At approximately $100 million per year, however, we are far from reaching that point.
One significant problem is the low cost of entry into the piracy business. It would be much better if a single pirate leader controlled entry. Then we could do business with him, paying him a tribute (we might prefer to call it a “toll”) in return for a promise not to molest our ships. As a monopolist, he would have an incentive to limit “production” of piratical activity, relative to the unregulated market we currently live in. The monopolist essentially would be selling passage off the coast of Somalia, and would be constrained by competition from people who control alternative routes (which, unfortunately, seems limited). We might even expect the pirates to start organizing, or fighting among themselves, in an effort to establish a single firm that could obtain these monopoly rents. In the happy event that an organization emerged, we could call it a “state” and deal with it as we deal with any other state—paying it or pressuring to act as we want it to act, in light of its interests and capacities. We could even call this state “Somalia.” If the gains from rational management of this newly discovered resource—the power to block important sea lanes—provide sufficient incentives for Somalia’s warring clans to make a deal and reestablish a state that can control entry into the market, we should be sure to keep paying Somalia money (we might call it “foreign aid” if “tribute” or even “toll” is too irksome) rather than yield to the temptation to smash it to pieces. In the state system, sometimes you do better with an enemy than without one.
But that outcome is a long way off. In the meantime, governments will have to employ an unsatisfactory combination of carrots and sticks—mounting expensive patrols that spot and pick off pirates on occasion, while paying ransoms to those pirates who succeed.
Everyone thinks that President Obama will put together an international coalition that will solve the piracy problems. So far skeptics have emphasize the costs of patrolling, which are extremely high. But there are other reasons for skepticism. Clearing the sea lanes is a public good, and no state has much of an incentive to help others. Indeed, we have already seen that states take their own nationals far more seriously than the nationals of other states. The French attempted to rescue a French crew. Piracy was considered a joke among the American public until an American crew was captured; now President Obama is “personally involved,” according to the papers, as he never was before. These conflicting incentives will contaminate all aspects of an international operation. Some states may hope to pay tribute payments to pirates so that the pirates will go after other states (akin to putting bars over your windows so that burglars will go next door). The current practice of responding more forcefully when one’s own nationals are involved will have a similar effect. Obama will have no more luck persuading states to overcome these incentive problems than he has had in so many other areas—economic stimulus, contribution of troops to Afghanistan, assistance in relocating Guantanamo Bay detainees.
Obama has good reason to become personally involved in the current hostage crisis. Despite the relative insignificance of the problem up till now (ransom payments of $100 million per year are a pittance), the pirates’ main tactic—hostage-taking—has a way of capturing the public imagination. It also has a way of sucking the air out of normal politics and destroying presidencies. That is what happened to President Carter, when Iranian militants took over the U.S. embassy in Tehran. And that is almost what happened to President Reagan, who launched his cockeyed arms-for-hostages scheme in order to secure the release of a handful of hostages in Lebanon. The scandal nearly destroyed his presidency. President Obama has every reason to be concerned.
He also has little room to maneuver. Having just returned from a trip promoting internationalism, he has raised expectations that any anti-piracy endeavor will have an internationalist flavor. This will mean costly, time-consuming negotiations for the sake of largely symbolic contributions by other countries, if history is any guide. Having also raised expectations that his administration will act with the utmost respect for legality, Obama will either have to direct American forces to walk on eggshells or risk exposing his words as empty. If the pirates continue to take American hostages, he will have trouble maintaining these commitments while giving satisfaction to the inevitable nationalist backlash driven by the mounting sense of powerless and humiliation that we haven’t seen since the Carter years.
Piracy and Al Qaida.
We all knew that President Obama, like President Bush, would have to defend Americans from a ruthless foreign organization—actually, a cluster of similarly motivated foreign organizations—that takes advantage of the chaotic conditions of failed states to hide and regroup, and that therefore cannot easily be handled with ordinary criminal process. We just didn’t realize this group would consist of Somali pirates rather than Islamist terrorists. It is eerie testimony to the unpredictability of events, yet there is an underlying theme: the dangers posed by the confluence of three trends—the advance of crossborder economic activity, the improvement of weaponry, and the disintegration of states.
There are differences, of course, but these are less significant than they first appear. Al Qaida is (was?) more dangerous, but that could end. Al Qaida is a terrorist group that seeks political ends; the Somali pirates are robbers who seek profits. Legally, this distinction matters, but only at the retail level. Laws against terrorist financing prohibit ransom-paying to terrorists, not to (profit-making) kidnappers, and, for similar reasons, you’re less likely to get in trouble if you donate money to the pirates (in case you sympathize with their plight, as many people apparently do) than if you donate money to Al Qaida. But the distinctions blur. Revolutionary and other politically motivated organizations have often resorted to common crime to finance their operations, and criminal organizations often adopt political causes to spread their appeal. If the Somali pirates hire a PR firm and announce an intention to form a revolutionary government dedicated to the oppressed and firmly opposed to American empire, and finance some nursery schools from the ransom money, soon Noam Chomsky will be on their side. Yes, they will be terrorists under the law, but they will also be an oppressed group with legitimate grievances that appeal to anyone who rejects the existing order.
The Obama administration has not repudiated the Bush-era theory that members of Al Qaida may be detained indefinitely with minimal process, as enemy combatants in fact if not in name. And it has enthusiastically carried on the Bush-era practice of blasting them to pieces when they appear on the “battlefield.” Yet it would be awkward, to say the least, to apply these precedents to the pirates, even though it would be easy enough to classify them as a nonstate entity with which the United States is at war. (Congress would surely supply an AUMF if that is necessary.) Obama has, in word if not in deed, repudiated these Bush-era practices. But there seems to be little effective alternative.
All the old problems pop up in new form. Criminal trials of pirates in the United States are likely to be expensive and impractical. The current detainee, caught red-handed, may not pose much of a challenge (putting aside the awkward question of whether he is a juvenile). But imagine what would happen if the U.S. detained pirates in the act of attacking a ship from Malaysia: the crew, the only witnesses, are not going to travel to district court in New York City, and the sailors involved in the detention will be on the other side of the world. If the U.S. is actually to make headway with the pirates, it will have to detain hundreds or thousands of people, not just a few. This would overwhelm American logistical capacities, not to mention those of the Kenyan courts, a twelfth-best option that has been explored but that is costly and raises the same set of problems for crews who do not live in the area. (The Somali justice system is not considered a serious option.) And any serious effort would mean shooting to kill long before the type of imminent threat that is necessary under domestic and international criminal law involving civilian suspects. Of course, none of this would solve the problem; it would at best reduce the risks to shipping by a small amount. Soon nation-building in Somalia will appear the only viable option as it has in Afghanistan. History has never before repeated itself so quickly.
People talk now of an international court. Perhaps, such a court will be constructed on a platform that floats along the currents of the Gulf of Aden. The important thing to see is that the purpose of an international court would be to compromise the due process protections that the pirates would otherwise receive. If it instead hews to western standards, and provides lawyers, translators, and security in a chaotic environment, and demands that transient crew members from all over the world appear and testify, then this court will be like all international criminal courts—an unbelievably cumbersome and expensive monument to the fear of action.
So we will have the closest thing to a controlled experiment that one can ever have for such matters—two administrations, two parties, one type of problem. Will the Obama administration swallow its pride and pursue the military option that has apparently addressed the Al Qaida threat for the time being? Or will it pursue a criminal law enforcement strategy more in line with prevailing rhetoric? Much depends on how strong the pirates become, and how quickly. One suspects that, like the Bush administration, Obama will use military and law enforcement approaches as needed, but, unlike Bush, will avoid warlike rhetoric, and sing the reassuring but uninspiring poetry of legal process.
Piracy bleg:
The VC discussions on anti-piracy policy in the last several days have raised the question of whether it would be a good idea for crews to be armed to resist the pirates. I invite commenters to supply specific answers to any of the following questions:
1. Which particular ports have rules against entry by a ship with firearms on board? Do these rules apply in territorial waters, so that a ship would not be allowed to enter a nation's waters while carrying firearms, and then transfer the firearms to a storage ship before proceeding into port?
2. Which specific shipping companies or maritime organizations have rules forbidding sailors to possess defensive arms? Are their other rules which generally forbid or restrict resistance to hijackers?
3. Which international laws, if any, might restrict or prohibit armed resistance to pirates? Does the legal analysis change if the pirates have a credible and well-known policy of not killing their captives?
3.5. What about the Law of the Sea Treaty, particularly articles 107 and 110?
4. What is the historical record about armed resistance to piracy by commercial ships?
5. In the past, when some arms have been allowed on ships, what kind of policies have been adopted to prevent mutinies or other misuse of arms? For example, having the guns locked in storage, with the only key in the possession of the captain? Were these policies generally successful?
Laws regarding military ships owned by a government are different; I am not asking about such ships. Only about ships engaged in commerce, or other non-government ships, such as private yachts.
Eugene Kontorovich, Guest-Blogging on Prosecuting Pirates and Terrorists:
I'm delighted to report that Prof. Eugene Kontorovich (Northwestern Law School) will be guest-blogging for the next several days about prosecuting pirates and terrorists. Here's his quick summary of his plans:
Many of the issues about the legal regime for responding to and prosecuting pirates that have arisen in the wake of the capture of a U.S. vessel this week are discussed at length in my forthcoming scholarly essay entitled “A Guantanamo on the Sea": The Difficulties of Prosecuting Pirates and Terrorists, to be published in volume 98 of the California Law Review. I wrote it several months ago, before the piracy problem had attracted major attention, but due to the slow production schedules of law reviews, it won't be published for some time, so I thought it would be appropriate to share the central ideas informally now. (For background on the issue, one can consult a short briefing paper I wrote for the American Society of International Law, International Legal Responses to Piracy off the Coast of Somalia.)
The essay explains the legal and practical difficulties to taking both military and criminal approaches to the piracy problem. Because pirates are not combatants but rather civilians -– yet civilians operating in a highly organized armed manner outside the control of any country -– international law and the criminal procedure rights of Western countries make any solution challenging. The Article’s principal contention is that many of the difficulties in dealing with pirates are exactly the same ones presented by terrorists and Guantánamo detainees. If anything, prosecuting pirates should be easier because they have no obvious political constituency. Thus, the piracy fiasco has cautionary implications for the idea that terrorists can easily be dealt with through regular civilian law enforcement mechanisms.
(The difficulties of prosecuting pirates are illustrated in a recent Ninth Circuit case last year -– the first universal jurisdiction piracy case decided by America in hundreds of years, and the subject of a short piece of mine forthcoming in the American Journal of International Law. The little noticed case also demonstrates the difficulties involved: The entire crew had to be detained on material witness warrants, translators found for everybody, and more.)
I write on public law generally, including constitutional and public international law. Because of my interest in jurisdiction, I have been studying piracy since the beginning of my scholarly career. Piracy is the first and paradigm universal jurisdiction crime -– one that can be punished by any nation, even without a nexus to the offense. Given the rise in universal jurisdiction over human rights offenses, studying how it worked for hundreds of years in the context of piracy could teach a great deal about modern universal jurisdiction, as I’ve shown in The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation and other articles. I have also followed the current piracy problem closely since it began in 2005, for an ongoing project empirically analyzing universal jurisdiction to see how often nations are willing to exercise it. Unfortunately, this area of knowledge has become too relevant as of late.
I'm much looking forward to seeing the other Eugene's posts.
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.
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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.
Why Crews Don't Resist
In answer to Dave Kopel's bleg below, there are as far as I am aware no international legal restrictions to crews resisting pirates. A ship is governed by the laws of the flag state, and the relevant regulations would come from there.
However, the crew has no incentive to resist. The crews are not military personnel. They are just working on a ship for a living, and not getting paid much. They would not risk their lives to save the insurers/owners some money. This is exactly what pirates bank on. In the age of sail this was also the case: merchant crews almost never resisted, and thus there was little occasion for the pirates to be violent.
Nor do shipowners want their crews to resist. Shooting could result in the loss of the ship, a massive financial blow. The payments to pirates are minor in the big scheme of things (in comparison) and more easily dealt with on an actuarial basis. My understanding is that insurers insist crews be unarmed.
The resistance by the crew of the Alabama was extraordinary and unusual. I would love to know why they did it. It may be linked to the vessel being a government-chartered ship; this voyage was not about making money. Or maybe its that Southern spirit.
Just an Honest Fisherman
A professor of piracy often deals with eye-patch and hook jokes. Many people who find this academic specialty intriguing lose interests when they learn that modern pirates wear jeans, tee-shirts and flip-flops, or when they’re feeling natty, fatigues. They certainly don’t fly a black flag. They have very bad personal hygiene: forget Johnny Depp and Cary Elwes.
Yet the ordinary appearance of pirates leads to a potentially serious problem in prosecuting them.
Universal jurisdiction only applies to pirates. Captured Somalis are likely to insist in court that they are not pirates but rather simple fishermen, erroneously seized by a foreign navy. What makes the claim compelling is that most pirates are in fact fishermen. Piracy is not a full-time job. Simply having weapons on a boat would not distinguish the pirates from many other Somalis. Establishing the very identity or even nationality of captured individuals will be difficult, as they are unlikely to possess identification. (This will also make it hard to know whether a captured pirate is a minor; or even what nation he comes from, making consular rights and other issues quite difficult to administer.)
Such challenges must be taken seriously, because the alternative is the detention of innocent civilians. To be sure, treating the detainees as civilians would require giving credence to some dubious factual claims. However, the same is true of many Guantanamo detainees captured in Afghanistan and elsewhere. They have claimed that they were innocent passers by, aid workers, tourists, minors, or simply ignorant of the nature and aims of the organization for which they worked. Regardless of their plausibility, these claims won significant sympathy for the detainees. Moreover, U.S. courts have held that because the power to detain depends on the foreigner’s status as a combatant, detainees can appear before tribunals to challenge the factual basis for being classified as a combatant even before a full trial for their alleged crimes.
Quite simply, making a criminal case against armed foreigners seized in remote parts of the world is very difficult. These concerns are not speculative. Evidentiary problems have already forced the U.S. Navy to release most of the pirates it seized in the wake of its January 2009 agreement with Kenya. Even though they were caught in response to a distress call from a commercial vessel, the evidence was “not ironclad.”
The Administration's Pathetic Piracy Policy, or Freezing Asses
The attention focused on the arraignment yesterday of the surviving Alabama pirate in federal court yesterday should not divert attention from the absolute failure of Western efforts against Somali piracy. The situation is not likely to improve, given the anti-piracy measures dramatically promised by the Obama Administration.
(In my too-slowly-forthcoming but particularly timely essay, “A Guantanamo on the Sea”: The Difficulty of Prosecuting Pirates and Terrorists, 98 Calif. Law. Rev., I predict many legal difficulties with policing and prosecuting piracy, which I argue explains the lack of aggressive action in the field or in the courtrooms. The new anti-piracy proposals are in keeping with this.
In the wake of the sudden public attention generated by the seizure of the U.S. vessel, both the president and Secretary of State Clinton vowed to crack down on the international criminals. But the measures they promised are pathetic. The highlight of Clinton’s four-point anti-piracy plan is to “seize pirate assets.” I admit when I first heard this I thought it was a joke. Pirates do not have money in London or New York banks. Somalis are more likely to have asses than assets. The pirates put in their booty into mansions, cars, multiple wives and qwat. How will Clinton freeze that?
Apparently “freezing assets” has become part of a rote litany of soft power diplomacy, along with travel restrictions and the like. The problem with such measures — and with things like universal jurisdiction, which often rely on them as enforcement tools — is that they're much more effective against leaders of Western democracies than a variety of Third World thugs. Somali pirates, like the North Korean Politburo, are not signing up for the Grand Tour of Italy, or a trip around England’s maze gardens. Such sanctions will be largely ineffective against them.
One can only hope that when such measures are discussed the sanctions against Iran to prevent them from acquiring nuclear weapons, it is not meant to be such an obvious commitment to do nothing.
I am not being unfair to Clinton’s plans. The asset freeze is the most aggressive of her proposals, the rest of which include holding “meetings,” a “diplomatic team to engage” Somalia’s transitional government; and tasking other officials to “work” with the shipping industry on their self defense measures.
This is not the first time an administration has boldly announced it would put an end to Somali piracy and is not the first time in such announcements would be in vain. Last fall, after the hijacking of a Ukrainian ship, the Faina, carrying dozens of battle tanks, the Bush administration and other nations declared that the pirates have finally gone too far. Secretary of State Rice devoted considerable time and her last months in office working this issue at the United Nations. Yet those pirates got a ransom too, and the piracy epidemic has only increased.
Indeed, as I've recounted elsewhere, since the beginning of the piracy epidemic last summer the United Nations has passed five Security Council resolutions on the subject– all under its binding Chapter VII authority. No other issue, not even the Israeli-Palestinian conflict (to say nothing of the bloody civil war in Sri Lanka or the ongoing genocide in Darfur) has commanded as much of the Council’s attention. Yet the piracy epidemic has only increased apace. In the days after Obama announced that the U.S. would be getting tough on pirates, as if to mock his words several more vessels were seized, including another American ship.
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