The Pirates of Turtle Bay

In a startling turn of events harking back to Thomas Jefferson and the Barbary Wars when our nation was in its infancy, the United States has been suddenly captivated by the sight of real, live pirates taking over our ships, capturing our sailors, and holding them for ransom.  Send in the fleet!

And then negotiate for several days.  Every American is glad that Captain Richard Phillips and his crew are returning to their families alive and safe and that three pirates are now feeding the fishes, but that's no better than a good start.

It's amazing how confused people can get about what to do about piracy, a problem as old as maritime transport.  Fortunately,  international pirate policy has already been nailed down, so there's no need to make things up as we go along.

Sen. John Kerry, in his unsuccessful 2004 presidential run, said that America should subject itself to a "global test" before using force.  More recently, Pres. Obama has said that the United States needs to do more listing to other countries and less ordering them about.  Even Supreme Court Justice Ruth Bader Ginsburg feels that American judges should carefully consider international and foreign law.

So, in the spirit espoused by our current crop of leaders, who as our President regularly reminds us did win the last election, let's take that global test, and examine international law and opinion.  As it happens, the laws about what to do about pirates were settled long ago.  The China Post reports:

... the international community should now finally take decisive action against the Somali pirates.

There is absolutely no question that under customary international law and the United Nations Convention on the Law of the Sea, all states have the unfettered right to capture pirates in international waters and subject them to trial and punishment in any jurisdiction. [emphasis added]

The right to go after pirates has been around for hundreds of years and indeed is one of the oldest issues in international law.  Along with slavery, piracy is among the handful of crimes violating jus cogens, a universally accepted international norm that all nations of the world must conform to.  Anyone who commits piracy becomes subject to "universal jurisdiction," under which all states have legal jurisdiction and a moral obligation to capture and try the pirates. Flag states of pirate ships have no right to protest when pirates are captured and tried.

Under the 1982 Law of the Sea, all states have even been granted the right to chase pirates in 'hot pursuit' into the territorial waters of any other state.

The website IntLawGrrls offers a cogent summation of, as their name might imply, applicable international law on the subject.  Based on a list of treaties including the 1958 Convention on the High Seas and its successor, the 1982 U.N. Convention in the Law of the Sea (UNCLOS), the authors state:

Piracy is one of the oldest international crimes, and its international prohibition in many respects gave rise to the principle of universal jurisdiction. [emphasis added]

Universal jurisdiction, quite simply, is the principle that any authority, anywhere, any time, may take action against a specified sort of miscreant.  Pirates are not merely the epitome, but are the defining example of universal jurisdiction under international law.  The Harvard International Law Journal asserts that pirates, but only pirates, can be captured and tried anywhere their captor prefers:

For hundreds of years, universal jurisdiction only applied to the crime of piracy.

There's no question what to do with captured pirates - they can be tried in the nation whose ships captured them or wherever their captors choose.  The pirate captured by the US Navy is going to be tried in New York - he was captured by an American ship and that's where the Navy decided to take him.  Neither he nor anyone else has any say in the matter.

If the Navy had preferred to convene a court-martial right there on the ship, try the pirate, and execute him by hanging - certainly a far cheaper solution that we should strongly consider next time - international law would be in full agreement.

America has a long tradition of taking vigorous action against piracy.  The Post reminds us that President Ford authorized military action against an earlier act of piracy against a US vessel:

In May 1975, just two weeks after the fall of Saigon, Cambodian Khmer Rouge forces captured and seized the U.S.-flagged container vessel SS Mayaguez and took it to the Cambodian island of Koh Tang.

U.S. President Gerald Ford immediately deemed the capture an "act of piracy" and dispatched a force to rescue the ship's crew and retake the Mayaguez.  Not knowing that the ship's 39 crew had already been handed over to a passing Thai fishing boat, hundreds of U.S. Marines landed on Koh Tang and waged a fierce gun battle with Khmer Rouge forces before finally boarding the Mayaguez and fleeing the island.

The Problem Is Catching Pirates, We Know How To Handle Them

One of the problems with Somali piracy is that there are a great many small boats in the parts of the ocean where pirates have been attacking; it's difficult to tell which ones carry sufficient armament to attack ships and which are innocent vessels.

Pirates are generally smart enough not to attack when naval vessels are nearby, and once they have the ship's crew as hostages, naval forces hesitate to attack them.

Ships could travel in convoys through that part of the ocean, but ship owners would not appreciate having to have their ships go at the speed of the slowest vessel in the convoy.  Convoying is similar in concept to the TSA solution to keeping pirates off of airplanes - make everyone suffer futile delays at great expense.

It might be desirable to send decoys through the area, that is, ships that look like slow cargo ships but have heavily armed crews.  The British Navy used that tactic from time to time during its illustrious past to good effect.

Failing that rather pricey alternatives of convoys or fake cargo ships, the solution is to arm the crews.  There is no doubt under international law that ships have every right to resist pirates by any means ready to hand.

Ship owners used to know how to deal with piracy and other threats to the safety of the ship.  A history of the White Star Line which was written in 1917 says:

The captain of a ship could marry people, but he was also entitled to use weapons to defend his ship from piracy or armed mutiny.  Even now [in 1917], most deep-sea ships carry an arms locker with sufficient sidearms to be issued to the ship's senior officers.

For a more recent example of ships being armed, Daily Press reports:

At the helm of several container ships for the now-defunct United States Lines, Crook [a long-term merchant ship captain] was in charge of a weapons cache that included eight shotguns and 15 pistols the ships carried for protection. Captains and some crew members were trained to handle small arms.

Five hundred years of seafaring history and international law clearly show that merchant vessels have every right to defend themselves against piracy and that any ship of any nation has full authority to kill pirates in combat or to arrest and try them however it pleases.

Why, then, is there all this bleating about international law getting in the way of doing what needs to be done?  Mr. Kerry's global test was established long before anyone alive today was even dreamed of: pirates are the enemy of all humanity.  If you catch one, try him and send him to Davy Jones' locker without further ado.  What's hard to understand about that?

Alas, the voices of victim disarmament are raising the usual objections.  But why?  When seconds count, the police are only minutes away - and at sea, the navy may be hours or days away.

The answer to piracy is the same today as it was in the days of Captain Kidd: a gun, a trial, a rope, and a yardarm.  Anyone arguing otherwise is saying more about their own political biases than about reality.

We know how to deal with the pirates of the Horn of Africa; the real problem is the New York-based pirates of Turtle Bay and Rockefeller Center - the U.N. and media elites who try to convince us that we can't.