The world is hurtling into hyper-modernity, with science-driven innovation surprising even the technologically savvy. Events, from world politics to the global environment, seem thrown into general flux. But what postmodern armchair security strategist would ever expect to see the mid-ocean reappearance of something so antique as pirates? Pirates in the 21st century?The idea that piracy could flourish in critical international waterways, two centuries after the Barbary coast powers were trounced by the U.S. navy, may seem preposterous. Naval power underwrote America’s debut as a global actor. America’s first grand strategist, Alfred Thayer Mahan, stressed global mobility and freedom of the seas. How could the United States—which remains the greatest naval power on earth—be thwarted, along with its allies, by piratical raiding parties of Somali fishermen in souped-up motor boats? The answer is astounding, and lays bare the West’s difficulties in irregular conflicts. Each year, some 18,000 vessels travel between the Indian Ocean and the Mediterranean Sea via the Suez Canal, including oil tankers from the Middle East, container vessels laden with Chinese goods, and more humble craft whose hulls are filled with wheat and other commodities. They sail north along the Gulf of Aden and up the Red Sea to approach the Suez locks. As Mahan made clear with his straight talk about international straits—the “wormhole” routes between continents—the defense of key chokepoints in the worldwide delivery system is critical. Gibraltar, Hormuz and Malacca are strategic for navies and merchant vessels alike. So is the Suez Canal, as the man-made marvel of the 19th century, and its 20th-century cousin in Panama. Speed of transit is crucial in war as well as commerce, especially when margins are thin. This system of shortcuts has now begun to break down, as the problem of failed states morphs into the spread of anarchic shipping lanes. The collapse of civil order in Somalia has imperiled the maritime route to the Suez Canal, leaving the global supply chain, shipping companies and sea-borne crews in a state of tumult. Over the past year, Somali gangs have motored in small skiffs from the shore into the Gulf of Aden bearing GPS locators, satellite phones, rocket propelled grenades and automatic weapons to attack more than 110 merchant ships. Somali marauders have captured 42 cargo vessels that could not outrun the pirates’ cigarette boat motors, seizing 815 sailors as hostages. They extorted as much as $30 million in ransom payments during 2008 and millions more in prior years, and continue to hold more than a dozen ships. These pirates are not the lovable characters of stage and screen—neither Captain Hook outwitting Peter Pan nor the high-kicking musical Pirates of Penzance. This new species of merchant piracy is a deadly and disruptive business. The pirates are for-hire thugs from small Somali towns and remain perfectly willing to kill unprotected crewmen standing guard on the deck of a merchant ship. As a result, for the first time in decades, vessels traveling from Asia are turning south to circumnavigate Africa in order to get to Europe and North America, adding 6,000 miles to the journey, and thus multiplying fuel and crew costs, insurance rates, and time. The increased shipping costs will inevitably be reflected in product prices, including food staples in a world with a shrinking pantry and a growing appetite. Piracy also threatens the ability of Persian Gulf states to ship oil to Europe and the ability of Chinese workers to sell their manufactured goods in Western markets. It is a particular threat to the economy of Egypt, which could lose as much as $5 billion in annual canal tolls (Cairo’s third largest source of foreign currency). It imperils Israel’s ability to obtain oil through the southern port of Eilat. Things may get worse, too. The collapse of Somalia’s government has left various Islamist groups jockeying for power, and a radical Islamist militia, Al-Shabaab, now controls several coastal towns, including Merka and Kismayo. This Islamist fighting group is advancing on the northern port of Eyl, the mooring ground for the most valuable pirate captures, including a Ukrainian vessel carrying 33 main battle tanks. A Saudi oil tanker with a cargo of $100 million, also moored at Eyl, was recently ransomed for $3.5 million. Militia members are reportedly demanding a share of the tribute paid by nervous international shipping companies. In this scenario, merchant piracy could easily morph into terror piracy—providing funds for al-Qaeda as well as disrupting the civilized world’s logistical systems of product delivery. Even worse, Somali piracy is a contagious demonstration of how small-bore technology can incapacitate major operating systems. Piratical methods could evolve into direct terrorist tactics, targeting ships for sinking rather than collecting ransom. Across the Gulf of Aden, in the Yemeni port of Aden, it took only a small skiff with explosives to incapacitate the U.S.S. Cole. Somali pirates, obstructing the route to Suez, also serve to set the bait for attacks in other critical straits. The straits of Hormuz provide the only route for the maritime export of oil from the Persian Gulf. Indonesia’s straits of Lombok and Sumba are used in shipping from the Far East. And yet again in the commercially crucial straits of Malacca, where piracy has been quashed so far by the no-fooling stance of the Indian, Malaysian, Singapore, Thai and Indonesian navies, the folk practice of nautical ransom can recur. Why has this piratical pandemic been so hard to stop? Somalia’s long-standing political anarchy is unchecked by troops from the African Union. Washington is leery of using land forces to root out the pirates from their Somali seaside lairs, after the 1993 disaster in Mogadishu memorialized in Blackhawk Down. Partly it is a logistical problem. The maritime approaches in the Gulf of Aden are huge—as large as the state of Texas. Commercial vessels arrive in the Gulf at a rate of sixty per day and vary widely in their maximum speed. The offshore reach of the pirate raids has surprised all observers, with recent attacks taking place as far as 500 miles from shore, in the Indian Ocean. Skiffs used in the pirate attacks sometimes lurk in the shadow of far-ranging mother ships disguised as fishing vessels. The European Union, India, China, Malaysia, Russia, Iran and the United States have sent naval vessels into the area, but the total flotilla is some twenty ships for a coastline more than 2,000 miles long. The feeble response is also caused by lawyers. In the face of the piracy challenge, the UN Security Council voted in November 2008 that foreign navies could target pirates within Somalia’s territorial seas—that is, within 12 miles of shore—so long as they had a letter of consent from the Transitional Federal Government of Somalia. In December 2008, the Security Council voted that foreign states could take enforcement action ashore and in Somali airspace to root out pirate lairs, so long as the Transitional Federal Government again consented. Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense. This should arrest the attention of any legal historian. In the origins of international law, piracy was considered the gravest act against the good order of the state system. Any sovereign state could prosecute a pirate for robberies at sea, even if the ship, crew, cargo, pirate and location had no connection to the avenging state. American law reflected this understanding. Pirates are enemies of all mankind, hostis humanis generis, explained Supreme Court Justice Joseph Story in his 19th-century opinions. The first Congress passed a long-arm statute in 1790 allowing federal prosecution of any piracy committed on the “high seas.” This authority was frequently exercised, and it is still good law. But in the Gulf of Aden, there are complications, as lawyers are wont to say. Federal piracy law is limited to acts on the “high seas.” That zone begins 12 miles from shore. Closer to the Somali coast, the waters are “territorial seas” and ordinarily are policed by a coastal sovereign—but not here. While the United States can capture these coastal pirates under the Security Council’s decision, the high-seas federal statute has not been adapted to their prosecution.11.
The Act of April 30, 1790, section 8, is part of the modern U.S. criminal code, at Title 18, Section 1651. An amendment to the Federal piracy statute could also clarify that the modern nautical category of an “exclusive economic zone”, which extends 200 miles from shore, does not change the older definition of high seas for the purpose of criminal jurisdiction. Other states have difficulties of sensibility as much as law. On December 25, 2008, Somali pirates swarmed the Wadi al-Arab, an Egyptian cargo vessel, and gunned down a sailor. A German naval helicopter from the frigate Karlsruhe came to the rescue, interrupting the attack and treating the wounded sailor. But in a televised “reality show” stunner, the pirates were then released and sent back to shore. EU task force commander Achim Winkler told a BBC reporter that Germany would detain pirates only when a German ship was itself attacked or German citizens were killed or injured. The BBC program was called, with no apparent irony, Europe Today. Now, such a policy of “catch and release” may make sense for recreational fishing, but pirates are not fish. What’s going on here? The answer is that we are back to a gnawing issue familiar to the post-September 11 world: Can states exercise the right of capture outside the limits of their own national territories, and if so, how is the prisoner to be held? The Security Council, as well as the states taking part in the Gulf flotilla, need to address this matter quickly. Participating states should amend their criminal statutes to permit universal jurisdiction in the prosecution of pirates captured under Security Council authority. A Council resolution could clarify that all patrolling states are entitled to capture and prosecute maritime piracy in Somalia’s exclusive economic zone and transit straits, as well as in the high seas—since no coastal government can maintain order. In an age of ungoverned spaces and failed states, we cannot allow water-borne anarchy. Maritime treaties should require the prosecution of pirates by the capturing state, unless it transfers the pirate to a third state willing to handle the case. And where foreign vessels have been granted entry to Somali waters in order to prevent piratical acts, the Security Council should clarify their right and duty to capture and prosecute the nautical brigands. But there is another legal obstacle to the exercise of common sense. It is a modern reinterpretation of the duty of non-refoulement, which derives from the 1951 Refugees Convention. This rule was modest in its origin, protecting any refugee fleeing political, religious or racial persecution from mandatory return to the state that wished them harm. The Convention’s rule on non-return contained an exception in cases affecting national security. Lately, however, with admirable motives but highly impracticable effect, a strong movement to expand the rule has triumphed in many places, particularly in Europe. The European Court of Human Rights, international human rights groups and a good number of governments now hold that non-refoulement applies to any person slated for return to his country of origin, even if he is not the target of special animus or persecution and does not qualify as a refugee. In this view, no one can be returned to a country where he has lived most of his life, if standard police practices and prison conditions are predictably brutal and uncouth. The risk of mistreatment cannot be solved, in this account, even by a solemn inter-governmental guarantee of humane and proper treatment, supplemented by periodic inspections. Rather, any return is taken to be a culpable act that abets possible cruel, inhuman or degrading treatment, or worse. There is no exception for situations affecting national security, under the broad interpretation now adopted both by the European Court and by UN treaty bodies. Though the U.S. government has not accepted this impractical ban on returns, it is often the limiting rule for alliance warfare and counter-terrorism. Indeed, this reading of non-refoulement has been applied implacably by the United Kingdom in its handling of suspects associated with al-Qaeda. The British government will not return an illegal immigrant suspected of planning violent and even catastrophic terrorism, even after diplomatic assurances, if the country of origin has any history of tolerating physical mistreatment. The consequences that flow from this in the Somali case are stunning, though not surprising. When the pirates swarm your ship, it is lawful to use deadly force and firepower to thwart the violent attack, including by sinking the pirate skiff. But military patrol vessels cruising in the Gulf often demurely avert their nautical gaze when the pirates lay down their arms or flee toward shore. Their fear arises from the newest lawyer’s version of the Pottery Barn rule—namely, “You catch it, you keep it.” A capturing state may be able to prosecute and imprison the pirates. But what happens when the sentence is over? A piratical “control order” in the British style, in which an ankle bracelet will confine each brigand to his new British flat and far away from motorboats? This is why various naval powers in the Gulf of Aden flotilla have been so reluctant to arrest pirates. The only safe option, these mighty militaries have decided, is to interrupt pirate attacks and then put the mystified marauders back in their skiffs for a safe return to their families and pirate ports. According to the London Times, the Queen’s Royal Navy was “told by the Foreign Office not to detain pirates” because of the “risk that captured pirates could claim asylum in Britain.” Gordon Brown’s government also reportedly objected that an arrest at sea would require arraignment before a British magistrate within 72 hours of capture. One might question whether the unstinting time limits of the European Human Rights Convention should apply to a naval expeditionary force on pirate patrol, when there are no floating magistrates. But even assuming that a magistrate’s clock is running from the moment of capture at sea, a proceeding could be conducted by satellite telephone. Pirate hunting is not a winsome game of hounds and hares. And human rights law can be made to work, where it is not used as a political excuse for inaction. For the moment, the United Nations Security Council has side-stepped the debate about the rule of non-refoulement by deploying an arch-legal fiction. Each country contributing a vessel to the new flotilla is now entitled to take on board a creature called a “ship rider.” This is a device that only a lawyer could love. It is meant, in this case, to insulate the capturing navy from the ultimate act of placing the pirate under arrest and trying him for piracy. Instead, a cooperative gendarme from a neighboring African state is introduced on the top deck to perform the ceremonial act of arrest, after which the Somali pirate is taken into custody in the name of a friendly African government. It is hard to imagine why the ship-rider tactic should salve the conscience of anyone who is seriously committed to an absolutist version of non-refoulement. And in practical terms, it may not keep pirates away from shipping lanes for long if the ship-riding states have corrupt legal systems or underpaid prison guards. But this arch legal fiction has reportedly served the ticket in the hills of Afghanistan. The British army was told, via the Foreign Office, that they should embed a U.S. military officer with British combat units to handle the formal “capture” of enemy soldiers. Otherwise, the European Convention on Human Rights and the rule of non-refoulement might forbid any delivery of a Taliban combatant into the custody of the democratically elected government of Afghanistan. There can be ship-riders, apparently, even in the mountains of Central Asia. Lately, British maritime forces have indeed transferred pirates to Kenyan gendarmes. Nairobi still has a strong central government, and the common law system applies. This quick deposit window for pirates may not measure up, from the point of view of law enforcement or human rights. A prime suspect from the 1998 Embassy bombing in Nairobi has still not been prosecuted, for example, even a decade later, because Kenya does not have the requisite offense under its statutory law. Kenyan jails are in poor shape as well, with 3,400 unexplained deaths in a recent year. The ship-rider fiction illustrates a mordant lesson for moral realists—it makes little sense to invent an impractical standard for real life governance and then avoid its application by handing off responsibility to another agent. The trauma of the war in Afghanistan has thus had its lasting and visible effects. No major power is willing to take responsibility for the arrest and trial of pirates in the Gulf of Aden for fear that, once again, these swift boat prisoners will become the new judicial foundlings that no one wants. Germany justified its own hesitation by citing the legal uncertainties of the war against the Taliban. When Berlin’s Defense Minister, Franz Josef Jung, saluted 220 German troops bound for the Gulf of Aden aboard the frigate Karlsruhe, he added a caveat. The German soldiers would deter, but not capture pirates, he said. “It needs to be an international authority. . . . [N]o one wants a ‘Guantánamo on the sea.’” This is a false piety, with an unrealistic understanding of the rule of non-refoulement. And any number of states can try the pirates, if their parliaments permit, so long as witness statements are taken from the victim crew and criminal codes are amended to provide for universal jurisdiction over piracy and its preparatory acts. Perhaps attitudes will change and prosecutions will indeed occur if there is a major bloodletting in a pirate attack gone awry. But it should not come to that. There is a moral duty to protect the victims of international crimes, to which querulous states have not paid adequate attention. Piracy is not just an atrocity by ancient law. In its Somali form, it amounts to hostage-taking. A UN convention entered into force in 1983 imposing an absolute duty on treaty states to prosecute or extradite any perpetrators who have taken hostages and are found in their territory. No political motive in the kidnapping is required for the norms of the treaty to apply. Even with a crooked smile, a state catching pirates at gunpoint in the Gulf of Aden cannot claim that the pirates just slipped away, without breaching the good faith obligation imposed by the UN hostages convention. That is not all. The International Criminal Court and the United States have begun to cooperate, in an understated way, in trying to end the genocide in Sudan. That rapprochement may grow closer in the Obama Administration. If so, why not send some international piracy cases to the ICC, since piracy was the original form of universal crime? A review conference for the Court scheduled in 2010 could take up the matter. Meanwhile, a UN consultative group has composed a sensible list of ways to aid Somalia’s pastoral agriculture and fishing industry, and advocated strict enforcement against foreign fishing boats that poach their catch in Somalia’s waters. These remedies should be pursued without delay, along with helping Somalia to build up its courts, police and indeed its government. Registration of all fishing skiffs and a ban on high-speed skiff motors in the area would also help. Violations should make vessels subject to seizure and forfeiture. Merchant shipping can be outfitted with protective infra-red systems to detect small, fast targets, as well as sound and light cannons, high pressure water hoses, and electrified perimeter fences, at least while traversing from Djibouti into the Gulf of Aden. It is entirely possible that none of this will work. If so, the United States and its allies might have to take direct police action against the most notorious pirate ports, where captive crews and cargoes are hidden. But that unpleasant and dangerous possibility is made all the more likely by the impractical account of the law adopted by allies and friends. International law was founded on the claim of freedom of the seas, and it has advanced far to include human rights. The two can be enforced together. 1.
The Act of April 30, 1790, section 8, is part of the modern U.S. criminal code, at Title 18, Section 1651.