XV. Commentary-Maritime and Coalition Operations: Kenneth O'Rourke

• Author: Kenneth O'Rourke
• Pages: 297

I well remember the day, during Operation ENDURING FREEDOM, that General Tommy Franks2 called me into his office and stated that intelligence indicated there were four vessels containing al Qaeda members departing Pakistani waters on their way to Northern Africa. His question was, what are we authorized to do? My response was that we are within our rights to intercept them-with some quick coordination, maritime interception operations (MIO) were born. I based my response primarily on Article 51 of the UN Charter and articulated that we had the right to intercept vessels containing terrorist leaders who represented an immediate threat to our country. Since this initial intercept, I have heard many argue that maritime intercepts are nothing more than piracy and interference with freedom of the high seas. Piracy it is not. The coalition is not interdicting every vessel on the high seas, nor stopping every vessel at gunpoint. Interdiction measures are limited in nature and 1. Commander Kenneth O'Rourke is a US Navy judge advocate serving as the Deputy Staff Judge Advocate for US Central Command.

2. General Franks is the current commander of the US Central Command. The Central Command geographic area of responsibility includes Afghanistan.

   designed to address a specific threat, including what is ultimately a threat even to maritime safety.

   There are a number of legal authorities used by various nations to conduct these operations. Two of the legal justifications for conducting MIO used by many of the coalition partners are the consent of the master and/or the consent of the flag state to conduct a visit/search. In that regard, the United States has bilateral agreements with various countries permitting such boardings. The belligerent right of visit and search is yet another authority some nations rely on. Of course, however, Article 51 of the UN Charter has come to be accepted as the primary basis for undertaking such operations.

   In this war on terror there is a nontraditional enemy. This war does not have many of the characteristic associated with a traditional war. There is an enemy that blends with civilians, a criminal enemy in the case of al Qaeda, operating with an unrecognized sovereign, the Taliban. Neither of these enemies operate within a recognized chain of command that conforms to the laws of armed conflict, nor do they have traditional target sets such as military infrastructure and armored vehicle formations to engage. This is a new...