The threat of piracy has been around as long as ships have been carrying goods across water. Recent events on the high seas show that the days of dramatic attacks and heroic rescues live on today, sans eye-patches and wooden legs. Earlier this month, Somali pirates attacked an American cargo ship and took Captain Richard Phillips hostage. After failed negotiations and repeated requests from the Defense Department to use force, President Obama authorized Naval snipers to shoot and kill the pirates if the captain’s life was in “imminent danger.” The Navy Seals, upon hearing gunshots from the pirates’ vessel, took aim and fired.
This incident is one of many that has caused anxiety in the international community. Policymakers and citizens alike want to know: what causes pirate activity and how do we catch them? Even if pirates are caught and detained, however, procedural and substantive legal questions continue to arise. Pirates’ trademark use of force and intimidation has sparked a debate over whether pirates should be treated as terrorists. While occurrences of piracy and terrorism on the high seas have both swelled in the past few years, the increasing rate of seaborne piracy has eclipsed that of terrorism. According to a study conducted by the Rand Corporation, the number of piracy incidents has far outpaced terrorist attacks and plots between 2000 and 2006. Not surprisingly, these grim statistics have shifted the attention of policymakers back to the pre-Internet days of old-school piracy law. Should seaborne pirates be prosecuted as pirates or as terrorists, and why does it matter from a legal standpoint what we call them?
A growing number of shipping companies do not report incidents of piracy in order to avoid the risk of higher insurance premiums and costly investigations; consequently, actual statistics of piracy are unknown. The International Maritime Bureau (IMB), however, estimates that pirates have successfully hijacked 61 boats since beginning of 2008, with 19 coming just in the first few months of this year.
Several high-profile piracy incidents in the open sea off the Horn of Africa over the last decade have caused some experts to point to lawlessness in Somalia as the root of the piracy problem. In a country where half the population is in need of food aid, the potential reward and relatively high probability of success generally outweigh any fears of capture for most Somali pirates who long for a taste of the high life. Additionally, patrolling the commonly pirated area off the coasts of Kenya and Somalia (an area of over a million square miles) has proven to be a difficult task.
The debate over whether pirates should be prosecuted under anti-terrorism laws is ongoing. Many experts and law firms liken piracy to terrorism–especially after incidents like the one seen earlier this month. Douglas R. Burgess Jr., author of The Pirates’ Pact: The Secret Alliances Between History’s Most Notorious Buccaneers and Colonial America, draws a parallel between piracy and terrorism: “both crimes involve bands of brigands that divorce themselves from their nation-states and from extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction . . . ‘for private ends.’” Further, international laws treat the two criminal offenders similarly as “enemies of the human race.”
Others argue that piracy and terrorism are different because the former commits crime for personal financial gain while the latter commits crime for political reasons. Democratic Senator Russ Feingold (Wisconsin) acknowledges they are different, but argues that they share the same roots. Clearly, the question of whether crimes committed for political reasons should be punished more severely than those committed for financial gain is still an unresolved policy issue. Either way, enforcement requires actual legal authority. Although pirates and terrorists may share commonalities, they are in fact prosecuted differently in the United States. Determining whether an enemy combatant is a pirate or a terrorist, therefore, is an important issue that affects the treatment of detainees.
In the United States, Article 1, Section 8 of the Constitution gives Congress the authority “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” Congress’ first anti-piracy law (passed in 1790) banned murder and robbery at sea. Both were punishable by death. The U.S. Supreme Court in 1818, however, ruled in United States v. Palmer that the law did not cover foreign pirates targeting foreign citizens. Congress responded the following year with a law that extended U.S. jurisdiction over all pirates—American and foreign.
The principal source of anti-piracy law in the United States today is embodied in 18 U.S.C. Chapter 81. Section 1651 states: “[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.” Section 1652 invokes the same penalty for U.S. citizens who engage in piracy, and Section 1653 does the same for pirates who are citizens of other countries. Authorization to prosecute pirates of any nation comes from universal jurisdiction, an age-old international law principle that “allows any nation to try certain offenders who have committed international crimes, even if the crime, the defendant and the victims have no nexus with the state carrying out the prosecution.”
The international community, through the United Nations, developed thirteen international counter-terrorism instruments during the last fifty years to address growing concerns over terrorism. One of the most notable is the United Nations Convention on the Law of the Sea. Enacted in 1982, this Convention establishes guidelines for governments and businesses in their usage of marine resources. A year later, the U.N. General Assembly introduced the International Convention Against the Taking of Hostages. Article Three of the International Convention provides that “[t]he State Party in the territory of which the hostage is held by the offender shall take all measures it considers appropriate to ease the situation of the hostage, in particular, to secure his release and, after his release, to facilitate, when relevant, his departure.” The recently amended Convention for Suppression of Unlawful Acts Against Safety of Maritime Navigation is another U.N. instrument aimed at curbing piracy and terrorism. Enacted in 1988 and amended in 2005, this counter-terrorism measure forbids a person from unlawfully and intentionally seizing or exercising control over a ship by force, threat, or intimidation.
Currently, terrorists detained under the notorious Bush-era Authorization for Use of Military Force (AUMF) have little hope of being released, let alone tried. Before enactment of the U.N. instruments, pirates faced similar fates as “international criminals and enemy combatants.” Today, in accordance with the U.N. Convention on the Law of the Sea, pirates are afforded the luxury of being judicially punished while enjoying the protections and privileges of the Geneva Conventions. Even with these humanitarian protections, pirates often escape unscathed by claiming to be “simple fishermen.” Unfortunately, most pirates are in fact fishermen-by-day and pirates-by-night. Since universal jurisdiction only applies to pirates, these “simple fishermen” typically slide through the legal loopholes because it is not an international crime to have guns on a boat.
Although international laws typically forbid governments from interfering with foreign vessels, universal jurisdiction gives the U.S. government and foreign governments the authority to apprehend pirates of any nation and punish them under their own laws. Unfortunately, these laws do not always produce the intended result. According to Burgess, “[t]he legal confusion extends to what happens once pirates have been caught. In theory, any nation can shoulder the burden of prosecution. In fact, few are eager to do so.” This is largely due to the fact that prosecuting and punishing pirates imposes a substantial financial burden that few governments are willing to bear.
The impracticability of policing every square mile of the open seas reinforces the unfortunate conclusion that “only a ship can guarantee its own security.” The U.S. Navy has made an effort to increase patrolling coverage and may attempt to get other countries on board. The bottom line, however, is clear: piracy will likely continue so long as the benefits of committing the crimes outweigh the risks of capture. Since most pirates are citizens of countries where starvation and poverty are commonplace, the international community must increase efforts in patrolling the high seas to outweigh the financial benefits to pirates. Until then, ship owners may want to consider making friends with sharpshooters in the U.S. military to deter pirate attacks and effectively protect their booty.