The recent deaths of four Americans at the hands of Somali pirates is leading military and legal scholars to question the ways in which the United States and the world community attempt to prosecutes pirates. The recent standoff involved Somali pirates shooting a rocket propelled at naval forces and abruptly firing on board a vessel in which they had four Americans as hostages. By the time special forces arrived on deck two hostages were already dead and the remaining two died shortly thereafter. Fifteen alleged pirates were in the United States' custody after the U.S. Navy was unsuccessful in bringing a peaceful end. The Department of Justice is looking into what charges it can bring against the pirates and the Federal Bureau of Investigation is looking into the incident itself.
The first internationally recognized crime was in fact piracy. The United States has been facing piracy problems for nearly 200 years ever since Thomas Jefferson decided to go to war with the Barbary pirates instead of continuing to pay tribute to allow American ships to cross the Meditarion without getting hijacked. Piracy was believed to be mostly eradicated through international efforts, but has seen a resurgence in the last view years.
The United Nations Convention of the Law of the Sea (UNCLOS) continues the tradition of condemning piracy in Articles 100, 107, and 110. Piracy is defined internationally under the UNCLOS Article 101as “(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft.” Any State that suspects a vessel to be a pirate ship has the right to board the ship, and verify if it is pirate ship and if pirates are on board. If the suspicions are reasonably confirmed then the visting States may take the alleged pirate ship and pirates into custody and may decide on the penalties owed under Article 105 of the UNCLOS.
Despite the international legal support to prosecute pirates, the strategy of dealing with pirates has been mostly to either negotiate or, if possible, engage in a rescue operation. The deaths of the four Americans demonstrates how this strategy can easily turn deadly. Moreover, the price of hostages and the number of attacks is on the rise. Last week 815 hostages from 50 vessels remained in pirates’ custody. Nikolas Gvosdev, who teaches at the U.S. Naval War College said, “The question is whether or not we've reached that tipping point in the waters off Somalia, where shipping companies and governments and the public say we can't tolerate this anymore.” He went on to state, “This isn't simply a price of doing business, that you accept some extra insurance payments and the cost of ransoms are spread out throughout the system, but something actually has to be done.”
Part of the problem with prosecuting pirates is the diffic
ulty in procuring witness and producing enough evidence to prosecute. “Depending on the case, the vessel may be flagged in one location, be owned by people in another location, and captained and crewed by people from another location,” saysMichael Passman, a lawyer with the Chicago firm Cassiday Schade and author of articles on piracy and the law, “And you may have to call all those people as witnesses.” Also, the trial proceedings can be lengthy and expensive. Many countries are reluctant to try pirates because at the end of their jail sentences they will seek asylum. It may even be a fruitless enterprise to prosecute pirates because there is a low deterrent factor. For pirates there is a high possibility of receiving a high ransom for hostages and the low probabilty of being brought to justice. Finally, it can be difficult to even capture pirates without extraordinary risk to those rendering assistance and the hostages.
There has been some prosecution of pirates recently in the United States. For example, the United States successfully prosecuted five pirates who fired on the USS Nicholas last November. While expensive and lengthy, the prosecution of pirates has a likely success rate. One possible solution is to have a more aggressive strategy of prosecuting those of conspiracy to commit piracy. Some Somalia fishers carry AK-47s to protect themselves, but if someone is found with rocket propelled grenades and grappling hooks it may be easier to prosecute the pirates before they attack. Those with these other types of weapons could potentially face a conspiracy or attempted piracy charge.
Perhaps the greatest way to deter pirates is to further engage the international community in the prosecution and eradication of piracy. The United Nations has given broader legal support to current international law through the passage of SC Resolution 1816 of 2008. This provision authorizes certain states to enter the Somali territorial waters in a manner consistent with action permitted on the high seas so that Somali pirates cannot hide in the territorial sea of Somalia. However, security resolutions in themselves are unhelpful unless properly executed.
The United States and other nations are pouring millions of dollars in Somalia’s transitional government so that it can become more stable. A stable Somalia would certainly take away much of the economic incentive of pirates, but Somalia has not had a central government since the early 1990s. There are two basics steps the United States can do in the interim. First, the United States and other nations can create economic and other incentives so that the Somalis can have a functioning coast guard and are able to police themselves. Of course, the United Nations, the United States, and other allies would have to oversee this fund and the newly minted coast guard to make sure it would not be used in a corrupt manner. Second, the United States could team up with other nations to create a more streamlined process for the prosecution of pirates. Criminal justice only works as a deterrent if individuals know there is a high likelihood they will pay for their crimes and this outweighs the benefits of attempting to perpetrate those crimes.
The problem of piracy is likely to get worse as ransoms get higher and until the legal issues
surrounding piracy are addressed. Unless the United States and other nations begin to prosecute pirates, more incidents, such as the recent deaths of the four Americans, are likely to occur.
Listen to NPR's story on the legal problems of prosecuting pirates here.