Catch and Release

Criminal gangs operating out of a failed state with a popu­lation the size of greater Chicago captured at least 97 ships, kid­napped 600 seamen, and raised insurance rates in the Gulf of Aden last year from about $500 to as much as $20,000 for a single trip. But the solution to piracy off the coast of Somalia, according to U.S. Navy lawyers James Kraska and Brian Wilson, isn’t simply sending in a few more warships. It is nearly impossible to police 2.5 million square miles of ocean. What is needed is not only the sword but the ­pen—­better communications, faster legal responses, and improved ­treaties.

The typical vessel attacked by Somali pirates is registered in one nation (such as Greece), owned by a corporation in another nation (such as South Korea), and operated by a crew hailing from other places (such as the Philippines and Pakistan), and it is transporting cargo owned by corporations based in the United States and elsewhere. Chances are that the protective vessel that foils the attack will be from yet another country (such as India or Denmark), or be manned by a private military security contractor (such as Black­water, based in North Carolina). The multiple jurisdictions blur the lines of legal responsibility for bringing suspected pirates to ­justice.

National interests are so en­tangled that some countries have adopted what is derisively called a “catch and release” policy. Last September, the Danish Navy dropped off 10 captured pirates on a beach because jurisdiction was unclear and Somalia lacked the ability to prosecute them. In 2006, the U.S. Navy blew up a fishing vessel after the pirates piloting it fired on two U.S. warships. When the fishing craft caught fire, U.S. seamen had to rescue 12 Somalis, five of them wounded, provide the men with medical treat­ment, and hold them aboard ships without functional brig facilities for several months before the U.S. govern­ment decided not to prosecute them and set them ­free.

The ­long-­term answer to regional piracy, write Kraska and Wilson, is the establishment of law and order in Somalia, which has been without a functioning government since 1991. In the meantime, piracy must be fought by “coordination, not kinetic action aimed at sinking pirate mother ships and destroying coastal havens.” Shipping nations must develop agreements to tem­porarily detain suspected pirates, make victims and witnesses available, and sort out where a case will be ­prosecuted—­before incidents occur. Under the auspices of the United Nations, warships can now go in “hot pursuit” of pirates into Somali territorial waters, to deny them a safe haven while they await payment of ransom for their ­prizes.

Like cities that fail to erect stop lights at dangerous intersections until someone is killed, the world’s maritime nations have generally moved lethargically or not at all until tragedy occurs. The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation was signed three years after Leon Klinghoffer, a ­wheelchair-­using American vacationing on the Italian cruise ship Achille Lauro, was shoved over­board by terrorists. After the 2001 World Trade Center attacks, 90 nations agreed to adhere to rules designed to counter the prolif­eration of weapons of mass destruc­tion on the seas. New international protocols have been written to establish a legal framework for criminalizing the maritime trans­port of terrorists or weapons of mass destruction at sea, but they have been ratified only by Com­oros, the Cook Islands, Estonia, Fiji, Spain, Switzerland, the Re­public of the Marshall Islands, and ­Vanuatu.

International maritime officials point to the successful resolution of a 2006 piracy case as proof that obstacles can be overcome. When an Indian dhow was overtaken in international waters by Somali pirates armed with grenades and assault rifles, USS Churchill, which was in the vicinity, seized control of the pirates’ vessel and detained the pirates. Kenya eventually stepped forward, tried the male­factors in court, and con­victed and sentenced them to seven years in prison. After Kraska and Wilson wrote their article, the United States, Britain, and Kenya signed legal agreements under which Kenya will try a “limited” number of cases in its courts. The first 16 alleged pirates to be covered by the agreement were captured in mid-­February.

But other than Kenya—which itself is wary that its courts will become overwhelmed—most of Somalia’s neighbors in the Horn of Africa lack sufficient lawyers, judges, confinement facilities, and even basic office supplies to handle piracy prosecutions. Without an effective system of punish­ment, there is little to deter unemployed Somali fishermen, as well as politically and financially motivated buccaneers, from seizing ships for ransoms that can run to millions of dollars. The resulting piracy not only impinges on freedom of the seas but undermines basic econom­ic develop­ment and the rule of law in one of the poorest areas in the ­world.

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THE SOURCE: “Fighting Pirates: The Pen and the Sword” by James Kraska and Brian Wilson, in World Policy Journal, Winter 2008–09.

Photo courtesy of the Dutch Ministry of Foreign Affairs