Piracy on the High Seas

The recent capture of the Maersk Alabama off Somalia put a spotlight on a problem that the shipping industry has been dealing with for years. For most people, piracy is something from the history books, but may I recommend John S. Burnett’s Dangerous Waters: Modern Piracy and Terrorism on the High Seas for a more up-to-date look. Burnett focuses on the piracy problems in and around the Straits of Malacca, between Indonesia and Malaysia, which will lead to some interesting observations.

Piracy exists because piracy pays. Modern ships, and modern cargos, are enormously expensive, and no ship moves without insurance. Given a choice between paying a $2 million ransom and risking a $100 million ship and cargo, the cost/benefit answer is easy. Of course, paying the ransom just tells the pirates that they have a good business model—that crime pays.

An interesting aspect of piracy is that it is one of two crimes defined universally. The other is human trafficking (a.k.a. slavery). In other words, it is defined as a crime worldwide, and every nation has jurisdiction under the International Convention on the Law of the Sea. The United States hasn’t ratified ICLOS, but the UN assures us that the treaty has become customary international law. Interesting, but it doesn’t really matter, because Title 18, US Code, defines piracy as a crime punishable by life in prison.

So, what is piracy? Well, obviously, taking over or robbing a ship on the high seas. But, an important aspect is that if a ship is captured by pirates, it becomes a pirate ship. So, you don’t have to “catch them in the act” of taking over a ship. And, since a captured ship becomes a pirate, its flag no longer matters—you don’t legally have to ask permission from the ship’s flag state to take action.

Then, why is piracy so politically charged? Well, the first problem is that no one wants to take the pirates into custody. While any nation can legally prosecute pirates, few want a bunch of Somali teenagers in their prisons. Kenya is an exception—it has recognized that piracy will affect it directly. If insurance companies insist ships take the long route around the Cape of Good Hope, the ships no longer call at Kenyan ports. So, Kenya has been willing to take captured pirates and put them on trial. (There are other nations that will take them, but they skip the trial part before passing sentence. That discourages a lot of countries from letting their navies participate in counter-piracy operations.)

The other problem is the worry about injuring or killing the merchant crew. If they are hostages, then even though a warship has a legal right to intervene in the pirate situation, it gets diplomatically complicated when a warship from nation A injures a crewman from nation B are on a ship flagged in nation C, owned by a company in nation D. And warships, generally, don't like anything that smells like "law enforcement"--even when they're allowed to do it.

There are also some limits. For instance, under ICLOS, only a warship can investigate an unknown vessel to determine whether it’s a pirate. Any ship not flying a flag on the high seas may be investigated, but only a warship can determine whether the suspect is a fishing trawler or a pirate mother ship (or a drug runner).

Who besides a warship would want to do that? That’s more interesting. The US Constitution authorizes Congress to define piracy and felonies on the high seas, and to grant letters of marque—which is a government authorization for a private ship to conduct specific warlike activities (boarding, seizing, sinking, etc.) At the Treaty of Paris, signatory nations declared that privateering was abolished, but the United States—and a lot of other nations—aren’t signatories, and abolishing privateering was more about ending commerce raiding than anything else. US law still describes how to obtain a letter of marque.

What’s really interesting is that under Title 33, US Code (Chapter 7, Section 386, if you want to look it up), the President is specifically authorized to use warships or private ships to deal with pirates!

So, what happened to piracy in the Straits of Malacca? It still happens, but this is the most important lesson: Malaysia decided it had had enough, and sent its navy to deal with the problem. It didn’t take long for pirates (many from across the strait in Indonesia) to get the idea that the business model had changed. That tells us that this isn’t an impossible problem—it isn’t a war on drugs, or poverty, or whatever. Piracy can be solved, or at least contained—after all, murder is illegal, but it happens. But it will take more than talk and hand wringing. It will take international will, or at least the will of a few nation states, for that to happen.

The Trouble with Closing Gitmo

In one of his first acts upon assuming office, President Obama ordered the Guantanamo Bay prison closed within a year. The detainees there were to be…well, that’s still a little unclear. The President seems to have run into the same problem as his predecessor. President George W. Bush also wanted to close Gitmo, but said, essentially, that no one could figure out what to do with the people there. Apparently, President Obama’s staff decided they were much smarter. If only the lawyers had bothered to read a little law, first.

Let’s run a thought experiment. Suppose, for the sake of discussion, we all decide the folks at Guantanamo are all prisoners of war. That gives them certain protections, but also establishes that they may be held until hostilities are over. Hostilities, quite obviously, are not over in Afghanistan or Iraq. A reasonable person could argue that hostilities in Afghanistan may last for decades.

Can we keep these people in prison for decades? Without trial? Without any right of habeas corpus?

Um, yes. That’s the whole point of being a POW. You aren’t a criminal, but you will be held until the war is over. It’s also possible to be held by a neutral party (think Switzerland in WWII)—who has an obligation to inter you until the war is over.

But, you say, this war may last generations? Correct—that’s exactly what former President Bush said. It's not our fault that the enemy decided on a strategy that could take generations.

Wait, though—Bush argued that the detainees weren’t POW’s. They were “unlawful combatants.” What’s that about?

Well, the problem is that there are combatants and noncombatants. People in uniform are combatants. They have a right under international law to engage in combat, and to kill when operating under the lawful orders of their nation-state. When they kill, it isn’t a crime. (It goes back to the Treaty of Westphalia.)

Civilians are non-combatants. They have a right to be protected, and combatants must conduct themselves in a way that avoids unnecessary harm to non-combatants. But, here’s the key: non-combatants do NOT have the right to kill. They may NOT participate in combat. If they do so, not only do they forfeit their protections, but they may be considered criminals, and charged with war crimes.

The problem arises when people who wouldn’t normally have any right to be combatants decide to take up arms. The Geneva Conventions acknowledge this possibility, but they don’t really explain what to do. But, just ask the question logically—if a person with the right to engage in combat can be legally held for decades (as a POW), then why would a person with a questionable right to engage in combat get more consideration? That just doesn’t follow.

Bush tried to solve that problem with war crimes tribunals, specifically authorized by Congress, as specifically directed by the Judicial branch. The reason the tribunals don’t look exactly like US court trials is because they aren’t US court trials. Sorry to break it to the lawyers, but there is more to the US Code than Title 18. Specifically, there’s Title 10, which governs military operations. (There’s also Title 33, but we’ll talk about that next time.)

President Obama has stopped the tribunals, and is insisting that the detainees can be given trials under the US criminal system. Lots of folks have argued we should simply give them trials. Okay, then here’s my question…

What do you do when the jury finds a detainee “not guilty”? That’s the point of a trial, right? You have to consider that the accused might be “not guilty.” If you don’t seriously consider that, then you are engaged in a show trial.

If you start with the premise that the detainees are unlawful combatants, then “not guilty” simply means they had a right to engage in combat operations. They are not guilty of war crimes. That makes them POW’s. But, POW’s may still be held until hostilities are over, after which they will be repatriated. This isn’t a game; those are the rules of armed conflict. If you start with the premise that the detainees are ordinary criminals, then “not guilty” means you let them go. Immediately. Are we seriously considering that?

Suddenly Bush's argument doesn't seem so stupid, does it? It almost seems like he really thought about the problem. Maybe he shouldn't be the only one.