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On Point

Legalistic Nonsense Thwarts Anti-Pirate and Anti-Terror Efforts


by Austin Bay
April 15, 2009

Richard Phillips, captain of the Maersk-Alabama, combines discipline and courage with a cool and calculating mind. Likewise the three U.S. Navy SEAL snipers who -- firing from a destroyer's fantail in rolling seas -- killed the three Somali pirates who attacked Phillips' ship, held him hostage and were prepared to murder him.

This dramatic American operation ends with three dead thief-kidnappers (criminals employing terror as a business tactic) and a freed American hostage. We are fortunate. Skill, courage, experience, vastly superior military forces and fortunate circumstances produce a satisfactory denouement -- at least satisfactory for the sensible who know pirates and, yes, their close kin, terrorists, threaten peace, economic development and the fundamental concepts of international order.

Dead pirates and a politically rewarded American president, however, aren't the usual outcomes when pirates perpetrate violent hijackings in the Gulf of Aden and around the globe in seas and straits bordering weak, corrupt and failing states. The more common result: Pirate syndicates receive millions in ransom for crews and ships and literally get away with murder. Direct action to free hostages and arrest pirates -- to rescue the innocent and impose a basic rule of law -- can spill innocent blood. Recently, a French hostage was killed when French commandos stormed a yacht captured by Somali pirates.

The Maersk-Alabama incident does reinforce several old lessons whose demonstration ought to inform crews threading pirate-infested sea lanes. For example, crews trained to resist pirate attacks -- even unarmed crews -- can sometimes thwart pirate raids and buy time for armed response by naval forces. Precise lethal force, in this instance guided by U.S. Navy air and sea sensors and provided by SEAL sharpshooters, can save lives and demonstrate a sane and sensible will to resist criminal terror, and is a necessary tool in combating armed men who are desperately invested in their violent enterprise.

These lessons make the case for sea marshal programs that place armed security teams on ships in threatened areas.

But sea marshals, SEAL snipers and even punitive expeditions destroying pirate strongholds won't stop 21st century piracy. U.S. Secretary of Defense Robert Gates fingered one of the wicked problem's larger facets: anarchic regions whose hapless governments cannot fight pirates and terrorists even if they have the will to fight them. Somalia has a national government, the Transitional National Government (TNG), but it controls little territory. At the moment, the Somali Islamist organization al Shabaab (an al-Qaida affiliate) holds greater sway -- and several press sources mention financial links between al Shabaab and Somali pirates.

Contemporary pirate gangs and contemporary terrorist groups exploit ungoverned voids. While 17th century pirates pulled the same trick, in those days nation-state navies could hunt them and hang them. One can make an argument that fighting pirates helped promote what we know as codified international law.

            Today's pirates and terrorists, however, find surprising safety in complex legal tangles, where human rights laws, definitions of sovereignty and claims of jurisdiction produce a crazy quilt of restrictions, qualifications and functional contradictions that frustrate rational programs to combat the killers.

Sept. 11 gave former president George W. Bush the opportunity to convene a new international conference to create a legal framework for confronting the new class of enemy al-Qaida represented. The Geneva Convention did not foresee transnational actors with potential access to nuclear weapons and the millenarian nihilism to use them to beggar or destroy entire nation-states. Bush didn't do it -- that was a mistake, and he ended up in the quagmire of "lawfare" battles.

While pirates have existed for millennia, access to high technology, bases in failed states, potential alliances with transnational terrorists and a global economy dependent on secure commercial shipping magnify their contemporary threat.

If the civilized want unarmed ships to safely sail the seas, then our international legal framework must permit swift, harsh police and military action against pirates. Convicted pirates must also face certain punishment.

International laws addressing both piracy and terror are dated and inadequate. If Barack Obama wants to stop both, it's time to make new laws and enforce them.

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