Somalia pirates' clash with Russian navy reveals a gap in rule of law
The pirates attacked the merchant ship early on the morning of May 5. The crew locked themselves in the engine room with a stock of food and water. A naval destroyer came steaming to the rescue and demanded that the pirates give up the ship. When they refused, the destroyer attacked with guns and cannons and, after a brief firefight, the pirates surrendered. Had this been a story from a children's book -- the kind with a skull and crossbones on the cover and a foldout treasure map inside -- the pirates would then have walked the plank. But it wasn't. This was 2010. The merchant ship was not a schooner but a Russian tanker, carrying 86,000 metric tons of crude oil worth $52 million. The pirates were not colorful figures with cutlasses but Somalis led by professionals who knew what this cargo was worth.
As for the Russian destroyer, it was not operating according to an 18th-century code of honor but according to international law, such as it is. Theoretically, the captain was supposed to hand the detainees and the evidence over to regional police. Not wanting to involve himself in legal wrangling, however, he decided to "release" the pirates instead. And thus they were "set free" in a tiny inflatable raft, with no navigation equipment, 350 miles off the coast of Yemen. The raft has disappeared. In the 21st century, this is how pirates walk the plank.
In fact, the Russian destroyer wasn't the first to hit upon this solution. Asked last weekend, the commander of the European naval force that coordinates military operations off the Somali coast said there had been "similar instances" involving Dutch and Danish ships but declined to elaborate. He also noted that of 400 pirates captured in the past three months, only 40 have been prosecuted. The rest have been released. Or "released."
Why? Pirates are hard to convict because evidence at sea is hard to collect, because ship captains have other priorities and because the nearest working courts, in Kenya and the Seychelles, are overwhelmed by pirate cases. Pirates are also being released because they are learning to work the international legal system: Last month, pirates captured by the German navy sued the German government on the grounds that they could not be guaranteed a fair trial in Mombasa, Kenya. As for Somalis who have landed in Germany itself -- or the Netherlands, or Britain -- they are rapidly learning that they can claim political asylum. Captured pirates can also be brought to the United States, of course, but that is expensive, time-consuming and at some level absurd. Eleven Somalis were indicted in Norfolk last month -- all men who cannot speak English, cannot read or write any language, and do not know their birth dates. When asked their dietary preferences, they requested camel or buffalo meat. How can they be judged by a jury of their peers, as American law requires?
In fact, captured Somali pirates present the Western world with a perfect storm of legal complications: As the legal scholar Ruth Wedgewood put it, they leave us "tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense." It is simply illogical to treat them as domestic criminals or to try them in national courts: They should be considered a special category of international terrorist, not as domestic criminals. On the other hand, there are no international courts or international prisons equipped to cope with them: Last month the U.N. Security Council called upon the secretary general to look into the idea of creating some, but of course any U.N. system would take months or years to come into being.
In the meantime, we have a few other options. We can take the Somali pirates more seriously as a military and terrorist threat, go after their backers in the Persian Gulf and East Africa, and systematically attack the "motherships" from which they launch pirate boats. We can step up the international coordination of navies in the region: Russians help Russian tankers and the U.S. Navy helps U.S. ships, but there are many countries with ships and sailors in the region -- Greece comes to mind -- without real navies. A few months ago, a Greek-flagged tanker was ransomed for $7 million. That sort of money buys a lot of new Kalashnikovs around the Gulf of Aden.
But until we, together with the Russians, the Chinese, the Europeans and others, can reach some agreement about what we call them and how we treat them, each captured pirate -- like each captured terrorist -- will invariably be dealt with ad hoc. Leaving them to float away on a rubber dinghy might not be the best solution, but it's the only one we've got.