Multiple pirate attacks thwarted with no arrests made

A Portuguese naval officer monitors shipping traffic on board a NATO warship off the coast of Somalia. (Turner's Images)

Several attacks by Somali pirates have been successfully thwarted in recent days by NATO and other foreign warships patrolling in the region, unfortunately the pirates in those attacks were left still roaming the high seas, albeit minus a few weapons.  Here is a brief listing of the attacks thwarted that I know of and their outcome.

18 April – M/V Front Ardenne attacked  - Thwarted by HMCS Winnipeg – Weapons and Equipment thrown overboard – Suspects released after questioning.

18 April – M/T Handytankers Magic attacked - Thwarted by Dutch De Zeven Provincien – Freed Yemeni hostages, confiscated weapons & released suspects.

07 April – Convoy of 12 merchant ships – Thwarted by Chinese DDG-171 Haikou & DDG-169 Wuhan - No arrests or seizures

The general explanation for the lack of arrests is usually blamed on a lack of jurisdiction.  Warhips sailing under NATO command claim that NATO does not have authority to arrests, and warships from nations other than the flag of the vessel being attacked say that the pirates can not be prosecuted unless the attack was made directly on a vessel flagged by the same nation.

This problem persists despite a U.N. resolution passed in June of 2008 allowing members to use “all necessary means to repress acts of piracy and armed robbery.”  I would interpret that “all necessary means” means…well…anything, including use of deadly force or arrest, but not so quick.  U.N. resolutions do not necessarily trump the domestic legal interpretations of individual sovereign states.

Historically, piracy under international law normally falls under the concept of universal jurisdiction.  Essentially, piracy has been deemed to be a breach of jus cogens, a conventional peremptory international norm that states must uphold.

In the U.S., criminal prosecution of piracy is authorized in the U.S. Constitution, Art. I Sec. 8 c. 10 :

The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

Despite these legal clarifications, the prosecution of pirates by different nations proves extremely difficult.  In response to this, the IMO has initiated a review of the legal complications that pertain to the capture, arrest, prosecution and extradition of alleged pirates.  IMO issued Circular Letter 2933 in December of 2008, requesting Member States to submit copies of their respective national legislation along with additional information specific to domestic laws that aim at combating piracy and armed robbery against ships.

Giant multi-national organizations like NATO only complicate the legal quagmire already in existence with their own respective legal considerations.  In general NATO forces do not detain or arrest for later prosecution because member states treat irregular fighters or non0combatants as a criminal offense, much the same as a bank robbery or murder.

Questions

Can we fight piracy effectively without a reasonable ability to arrest and detain suspects for prosecution?  I would argue seizure of weapons and thwarting an attack in progress is certainly beneficial and worthy, but releasing suspects who were clearly involved in attempting a violent attack on a merchant ship is only prolonging an another attack at some point in the not-to-distant future.  Arms and ammunition are in plentiful supply in this region.

Do we continue attempting to solve the piracy problem with huge cumbersome international coalitions with limited legal permissions or do we need to identify states willing to take the most liberal legal stance, perhaps even accepting the historical concept of universal jurisdiction as it applies to pirates on the high seas.

In a ironic Catch-22, we find the lawlessness of Somalia enabling rampant piracy, and the lawfulness of organized nations preventing the disabling of piracy.  In this case, it appears the absence of law is trumping the rule of law…at least for now.

Read more

The New Atlanticist – NATO foils pirate attacks

The Wall Street Journal – Pirates Exploit Confusion About International Law