Attaining optimal deterrence at sea: a legal and strategic theory for naval anti-piracy operations.

• Author: Bahar, Michael

ABSTRACT

On January 21, 2006, a guided missile destroyer accomplished the U.S. Navy's first capture of suspected pirates in recent memory. As the Staff Judge Advocate for the NASSAU Strike Group, the Author advised the seizure, led the onboard investigation, oversaw the shipboard detentions, and testified at the trial in Kenya.

Drawing upon this experience, the Author constructs a comprehensive legal and strategic theory for piracy, defining the legal status of pirates and deriving the due process rights that should be afforded them.

The Article also analyzes the evolution of customary and positive international law to demonstrate that, contrary to conventional wisdom, sufficient international law exists to counter the reemergence of piracy. It is sufficient to tackle the growing threat of piratical terrorism as well.

Finally, given the state of international law and the status of pirates as international maritime criminals, the Author argues that the United States should initiate seven domestic reforms and two regional reforms to achieve "optimal deterrence," a naval posture sufficiently robust to minimize the economic, environmental, and humanitarian costs of piracy through strong multi-lateral and unilateral deterrence efforts, while maximizing the due process rights for detained individuals.

TABLE OF CONTENTS I. INTRODUCTION II. ENEMIES OF ALL MANKIND: UNIVERSAL JURISDICTION AND THE BASIC DEFINITION OF PIRACY III. THE THREE PERCEIVED "GAPS" IN THE BASIC DEFINITION A. Piracy, for which Universal Jurisdiction Applies, Cannot Exist in Territorial Waters--Nor Should It B. Terrorism on the High Seas Can Equal Piracy Under International Law C. Piracy Without a Second Vessel Can Remain Piracy D. Conclusion IV. THE LEGAL STATUS OF PIRATES AND THE SEVEN DOMESTIC REFORMS THAT DERIVE FROM IT A. Affording Fourth Amendment Protection Rights at Sea B. Affording Fifth Amendment Rights While Maintaining Effective Investigations C. The Limited Role of AIS Within the SOLAS Convention D. Adding Greater Law Enforcement Training to VBSS Teams E. Exploring the Q-Ship Option F. Limited Authorization for Entry Within Twelve Nautical Miles of Somalia G. The Information Operations Campaign V. REGIONAL PROPOSALS A. Regional Security Arrangements with Direct U.S. Participation B. Regional Courts VI. CONCLUSION I. INTRODUCTION

He knew what those jubilant crowds did not know but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture or linen-chests; that it bides its time in bedrooms, cellars, trunks and bookshelves; and that perhaps the day would come when, for the bane and the enlightening of men, it would rouse up its rats again and send them to die in a happy city. (1)

On January 21, 2006, fifty-four nautical miles off the coast of Somalia, the U.S. Navy caught its first band of suspected pirates in recent memory. Ten Somali pirates had attacked an Indian dhow from three speedboats five days earlier, swarming the Indian vessel in the early morning hours and causing paralyzing fear with AK-47 bursts and shouldered rocket propelled grenade (RPG) launchers.

The Indian navigator reported that once onboard, the pirates herded the crewmembers into groups. They punctuated otherwise unintelligible orders with blows from the butts of the AK-47s and rusty pistols. The pirates made the sixteen crewmembers cook for them and directed that they take the dhow further out to sea to hunt for larger ships. It was the third of these attacks, against the motor vessel Delta Ranger, which proved their undoing. (2)

On January 20, the Delta Ranger reported shots fired from a dhow and three speedboats in tow. The ship managed to escape, and the U.S. Navy was called to intercept the alleged assailants. After launching helicopters, broadcasting warnings, and firing warning shots, the USS WINSTON S. CHURCHILL, a guided missile destroyer attached to the NASSAU Strike Group, managed to capture the pirates. Eight days later, the USS NASSAU flew the suspected pirates from its deck to Mombasa, Kenya, where their trial for piracy began. In October 2006, the ten Somalis were convicted of piracy and sentenced to seven years in Kenyan prison.

Three months after apprehending the ten pirates, NASSAU Strike Group assets engaged thirteen other suspected pirates, killing one and wounding five others in a high seas firefight that began when the suspects raised their weapons against the warships. (3)

Like Camus' plague, piracy has skulked behind cliffs and within coves for the past century, always present yet ever patient, biding its time before re-emerging with renewed fury. According to the London-based International Maritime Bureau (IMB), there were 329 reported cases of piracy worldwide in 2004. (4) In 2005 the number of reported cases actually dropped 16%, due in part to increased naval presence, but there was also a marked increase (from two to thirty-five reported attacks) in the number of piratical attacks off the anarchic and violent coast of Somalia. (5) Additionally, a total of twenty-three vessels were hijacked in 2005, the highest in four years, and 440 crewmembers were taken hostage, the highest number since IMB started compiling statistics in 1992. (6) And these attacks are not at all like the romanticized swashbuckling of Hollywood buccaneers. Rather, they are often as brutal and sad as the lands from which these pirates hail.

While crews are beaten, sometimes killed, and often held hostage for long periods of time for ransom, the global economic consequences are similarly dire and extend far beyond the small dhows and cargo ships actually attacked. The IMB estimates that piracy costs transport vessels $13-15 billion a year in losses in the waters between the Pacific and Indian oceans alone. (7) Small cargo dhows, for example, are extending their routes to remain at least 200 miles off Somalia's east coast per IMB's guidance. (8) They have complained that the excess fuel and opportunity costs associated with "the long route" are crippling, tempting some to cut corners, gambling against the house with their lives. (9) While the chilling effect on international trade is substantial, pirates have also begun to directly target tourists. In November 2005, passengers on the cruise ship Seabourne Spirit described the horrors as Somali pirates in speedboats attacked them with AK-47 bursts and shouldered RPG launchers. (10)

Worse is the potential for piratical terrorism. As one commentator has warned, "[j]ust as terrorists learned to be pilots for 9/11, terrorists may now be learning to be pirates." (11) Citing the example of the March 2003 hijacking of the chemical tanker Dewi Madrim in which the Indonesian-speaking attackers "seemed primarily interested in practicing to steer the ship down the congested waterway," Burnett has noted that intentionally grounding a crude carrier hauling 2 million barrels of oil at a place like Batu Berhanti, where the Straits of Malacca are a mere 1.5 miles wide, would close the waterway indefinitely. (12) The resultant "delay in oil supplies to China, Japan, and South Korea could devastate their economies, setting off a global economic crisis." (13)

Unlike prosecutions for crimes against humanity, the fight against piracy is occurring every day. Unlike traditional naval battles, maritime security operations (MSOs) of the counter-terrorism and law enforcement variety are the way of the present and future. Thus, legal theories are needed, just as much as are the strategic options that flow from them.

What follows, therefore, is just such a legal and strategic theory for piracy, closing a serious gap. As the first point of order, it is crucial to recognize that contrary to the assertions of many commentators, authors, and practitioners, sufficient international law exists to enable the military and diplomats to counter piracy, as well as its more virulent strain of piratical terrorism. The first two Sections of this Article comprehensively explore the crime of piracy and piratical terrorism and stress that few, if any, legal changes need to occur at the international level to effectively combat the problems. Most important, this Article demonstrates that terrorism on the high seas can equal piracy under international law.

On the domestic front, this Article advocates a series of domestic reforms that reside at the intersection of international and domestic law and at the crossroads of law and strategy. Most critical, Part III defines the legal status of pirates and the optimal set of rights that flow from that status.

Pirates are not combatants or enemy prisoners of war, but they are international maritime criminals entitled to international and constitutional due process protections while in U.S. custody. Overall, the defined status and proposed reforms will increase the overall efficacy of anti-piracy efforts while maximizing the rights of those captured.

Part IV offers a pair of regional solutions, again taking the established state of international law as a given. First, the United States must promote regional security arrangements consisting of not only coordinated patrols, but joint patrols as well. Second, the United States should advance a regional court to prosecute pirates on the basis of universal jurisdiction. These specialized courts would acquire the necessary expertise and resources, the appropriate rules of evidence, and would exploit such economies of scale for efficient and just prosecution throughout affected regions, while helping spread the value and example of the rule of law.

Ultimately, this Article calls for a regime of optimal deterrence, a determined point between the poles of maximum military pursuit and neglect. International law will support a robust high seas military presence coupled with domestic prosecutions that will deter pirates and thereby save the industry vast sums of money and mariners...