A War on Piracy? (Part 1)

“The only way to fight piracy is to hang the pirates.” “The only language they understand is force.” “This is war.” So says, a veteran of Norway’s shipping industry, Jacob Stolt-Nielsen. He acknowledges that his company is arming guards on board their vessels and suggests that the pirates should be executed on the spot.

US NAVY: Suspected pirate skiffs burn from weapons fire from the guided-missile destroyer USS Momsen (Feb. 2011)

To be sure, if a commercial ship is under hostile attack by Somali pirates on the High Seas, the ship may exercise the right of individual or collective self-defense under Article 51 of the U.N. Charter. But it is a great extension of this principle to say that it permits preemptive action against suspected pirates who are not in the midst of an attack.

The so-called War on Terrorism provides a useful analogy here. In the wake of the 9/11 attacks, the second Bush Administration outlined its goals in the war on Terror in the National Security Strategy. That document provided:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.

The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.

The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

One might argue that Somali Pirates, armed with Rocket-propelled grenades and AK-47s pose an imminent threat to ships in the Indian Ocean, thereby justifying preemptive attack on pirate skiffs.  Such an analogy is flawed in several ways.

First, who are the parties to such a “War on Piracy?” According to the UN Special Adviser for Piracy’s report, there are around 1,500 Somali pirates and about 10 commanders. These are multiple enterprises; there is no single “Somali Pirate” outfit akin to Al Qaida. Second, against whom did Somali pirates declare war by attacking commercial ships, owned by companies in Norway, South Korea, India, and Malaysia, flagged in Malta and Liberia, and whose seafarers are nationals of the Philipines, India, and Kenya (to name but a few interested States)?

Second, the threat posed by piracy is largely financial. According to one estimate, the cost of Somali piracy to the world economy is between $7-12 billion per year. In addition, a large number of vessels and hostages remain captive. The International Chamber of Commerce reports that there are currently 33 Vessels and 712 Hostages being held by Somali pirates. But there are few reported incidents of civilian casualties. And certainly, the use of more destructive weaponry would be counterproductive for pirates as they can only ransom goods and hostages that remain intact.

Finally, this is not a battle of ideology as pirates and their victims are pursuing the same goal – that is to enrich themselves.  The difference is that pirates seek to enrich themselves illegally.

In short, even if one were to accept that a war on terrorism is a legitimate legal construct, the rationale does not extend to Somali piracy. For (1) there is no logical coherence to a war between disparate groups of pirates and the rest of the shipping world; and (2) piracy poses an economic threat, not a threat to the safety and security of the nations of the world.

This is not war; this is organized crime. And the scourge will only be eradicated when crime bosses are apprehended and prosecuted.

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