Maritime Piracy: Changes in U.s. Law Needed to Combat This Critical National Security Concern

JurisdictionUnited States,Federal
CitationVol. 36 No. 01
Publication year2012

Washington Law ReviewVolume 36, No. 1, Fall 2012

Maritime Piracy: Changes in U.S. Law Needed to Combat This Critical National Security Concern

Daniel Pines(fn*)

I. Introduction

At approximately 7:15 a.m. on April 8, 2009, four pirates in a fast-moving skiff used grappling irons and a torrent of firepower to board an unarmed 508-foot U.S.-flagged vessel, the Maersk Alabama.(fn1) The Alabama was traversing the Gulf of Aden, between Yemen and Somalia, in order to provide food aid to Kenya.(fn2) The attack marked the first time that pirates had boarded an American merchant vessel since the early 1800s.(fn3) Once the pirates were on the vessel, the Alabama's captain and three other sailors distracted the armed pirates on deck, while the rest of the crew disabled the ship and then hid in safe rooms below.(fn4) With the pirate's skiff having been sunk during the melee, and the Alabama completely inoperable, the Alabama's captain convinced the pirates to retreat into the Alabama's lifeboat.(fn5) The pirates took the captain as their prisoner, hoping to ransom him for a reported $2-3 million.(fn6)

Events did not work out as the pirates had hoped. A U.S. destroyer trailed the lifeboat while negotiations for the captain's release dragged on.(fn7) After five days of futile discussions, the United States came to the conclusion that the pirates intended imminent harm to the captain. Deeply concerned for the captain's safety, and operating pursuant to authority provided by President Obama, the U.S. destroyer slowly came alongside the lifeboat.(fn8) On board the destroyer were three snipers from Navy Seal Team 6, one of America's top military operations units that would subsequently lead the successful raid of Osama Bin Laden's compound in Pakistan.(fn9) The three snipers, calibrating the rollicking of both the destroyer and the lifeboat, simultaneously fired one shot each, killing the three pirates aboard the lifeboat.(fn10) The captain, amazingly, was unhurt in the exchange.(fn11) The fourth pirate, who had earlier surrendered to U.S. authorities, was brought to the United States to stand trial on counts of piracy, hijacking, hostage taking, kidnapping, and conspiracy.(fn12) Pleading guilty to all counts except the count of piracy, this fourth pirate was sentenced to more than thirty years in prison.(fn13)

Ask most Americans to list the major national security concerns and the response inevitably will include issues such as terrorism, peace in the Middle East, and possibly even counter-proliferation and counter-narcotics. Unlikely to make the list, however, is maritime piracy. Those familiar with the problem of maritime piracy, including most authors who have written on the subject, typically categorize it as a law enforcement matter that impacts a small number of mostly non-Americans.(fn14)

Some go so far as to consider it a regional political concern primarily impacting Somalia and other nations in the Gulf of Aden, or perhaps a minor international economic problem, given its impact on the global transportation of goods.(fn15)

While all of these descriptions may be accurate, the Alabama incident and others demonstrate that the true threat posed by piracy, especially for the United States, is to our national security. George F. Kennan famously defined the term "national security" in 1948 as "the continued ability of this country to pursue its internal life without serious interference, or threat of interference, from foreign powers."(fn16) Under this definition, maritime piracy poses a clear national security threat to the United States.(fn17)

Piracy threatens, and has taken, the lives of American crews and civilians. It poses an enormous economic threat, both in terms of ransom payments and impact on global commerce. It enhances political instability in significant regions of the world, such as the Horn of Africa and the Straits of Malacca. Most critically, though, maritime piracy offers an easy and tempting conduit for terrorism. Terrorists have already used maritime options to advance their cause in several dramatic attacks, including the hijacking of a cruise ship (and murder of a Jewish passenger), the ramming of a boat into a U.S. destroyer (killing seventeen U.S. sailors), and attacks on numerous other maritime vessels. Other pira-terrorist attacks have been thwarted, while many more appear to be in the planning stages. Therefore, it is now time-indeed well past time-to consider piracy as the national security threat that it actually is. Aviation hijacking was not considered a significant national security concern untilal-Qaeda used hijacked airplanes to bring down buildings on 9/11. We cannot wait for a brutal terrorist attack at sea to occur before we realize the same risk that maritime piracy poses to our country.

This Article therefore articulates what international and U.S. law authorizes the United States to do and precludes the United States from doing to combat the national security threat posed by piracy, including the ability of the United States to militarily attack pirates, seize their vessels, prosecute them in the United States, and have them prosecuted outside the United States. It then provides suggestions as to how to augment these laws to better confront the threat.

In so doing, this Article takes a different tack from the other law review articles recently authored on the topic.(fn18) Rather than concentrating on what the international community is or should be permitted to do to combat piracy, and rather than looking at the matter as a primarily economic or regional geopolitical issue, this Article focuses on piracy as a U.S. national security matter and evaluates what U.S. statutes and regulations can and should permit the United States to do with regard to this threat.

To this end, Part II of this Article provides a background on piracy. It begins by offering a working definition for the often elusive term. It then proceeds to outline the history of piracy, before finally examining the current threat to national security that piracy poses. Part III then assesses what international law permits the United States to do to combat piracy. As piracy is considered a "universal" crime impacting all nations, and as piracy typically takes place outside U.S. territorial waters, international law plays a significant role in the American ability to thwart piratical attacks. Part IV then builds on the international law regime to describe the laws the United States currently has in place to use force against pirates. Part V continues the review of current law on piracy by evaluating the availability of the courts to prosecute pirates.

Finally, Part VI offers more than a dozen concrete and viable proposals for augmenting the U.S. ability to combat this national security scourge. Focusing on the need to deter piracy, as well as capture and prosecute those who engage in such acts, the suggested solutions include the following: passing legislation to allow for prosecution of those who materially assist pirates, as already exists in the fight against terrorism; expanding the rules of the International Criminal Court to allow for the inclusion of piracy claims; establishing bilateral agreements with various coastal nations to augment the ability of the United States to pursue pirates into other nations' territorial waters; and revising current U.S. regulations to better permit U.S. vessels to carry weapons and armed guards to combat pirate attacks. While these proposals appear to be simple and-hopefully by the end of this Article-obvious solutions to the problem, the United States nonetheless has yet to implement any of them even though they offer significant, pragmatic means to combat the threat in the immediate future.

II. Background on Piracy

Anyone who has seen a recent Johnny Depp film has a clear sense of what constitutes a "pirate": parrot on the shoulder, eye patch, bad accent, and a general disregard for bathing. Beyond this colloquial understanding, however, an examination of the elusive legal definition and long history of piracy is necessary to understand the national security threat now posed by piratical activities.

A. Definition of Piracy

As many commentators have noted, there is no universally accepted definition for the term "piracy."(fn19) A close evaluation of the scholarship and case law in this area, though, reveals three key facets of piracy, which together suggest an appropriate definition.

First, there must be an intent to rob or plunder.(fn20) Or, as U.S. courts have colorfully stated, there must be a "piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property."(fn21) Thus, there is no piracy if the activity is due to "mistake, or in necessary self-defence, or to repel a supposed meditated attack by pirates."(fn22) Second, the act must take place at sea or in a seaport; otherwise, the matter involves merely a common robbery or burglary. Thus, the traditional definition of piracy, which combines these first two criteria, is "robbery, or forcible depredations upon the sea,"(fn23) with depredation defined as the "act of plundering, robbing or pillaging."(fn24)

This traditional definition, though benefitting from brevity, misses the third major component of piracy, namely, that it is performed by stateless actors.(fn25) After all, if a ship operating under the flag or at the direction of a sovereign nation robs or...

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