35 Pages Posted: 1 Apr 2009 Last revised: 27 Mar 2010
Date Written: March 30, 2009
As a surge in pirate attacks in the seas around the Horn of Africa threatens to seriously damage international trade, the nations of the world have refused to enforce international law against these criminals. The dozens of nations patrolling the Gulf of Aden have ample legal authority to detain and prosecute pirates. Yet the United States and other navies have, as a matter of policy, been releasing apprehended pirates because of the difficulty of detaining or successfully prosecuting them. These fears are not unwarranted. As this Essay shows, while on the one hand international law requires all nations to fight pirates, a variety of other international legal rules - ranging from the Geneva Conventions to refugee law to the Law of the Sea Treaty - are in tension with this goal. These tensions are daunting enough to keep nations from even trying.
The legal issues that prevent states from effectively dealing with pirates are precisely the same as those that have plagued responses to international terrorism. The War on Piracy and the War on Terror both raise questions about the legal status of conflicts between traditional states and diffuse multinational networks. Pirates, like terrorists, fall in the gray zone between military combatants and civilians. But the similarities between the legal problems of piracy in Somalia and those of the battle against international terrorism do not end there. Lack of clarity about pirates' prisoner of war status, the use of prolonged detention, rendition to countries with poor human rights records, claims of abuse by the detainees, accidental killings of innocent civilians, the difficulty of proving cases arising from the field of active military operations in civilian court, and the legality of targeted killings of suspected wrongdoers are just a few of the issues that have plagued both legal efforts against international terrorists and against piracy in just the first few months of the current Somali campaign.
The legal response to terrorism has been among the most contentious public issues in recent years. It is widely asserted that trying foreign terrorists in civilian courts is a workable response. However, the failure of this same strategy in the case of piracy - indeed, the refusal of the very nations that promote such an approach for terrorism to even attempt it with piracy - suggests that the civilian approach to terrorism will be extraordinarily challenging. For a variety of reasons, piracy would be far easier to deal with than terrorism. Thus, the legal impediments to dealing with piracy serve as an ideal case study for the future of terrorism prosecutions.
Keywords: terrorists, piracy, detention, unlawful combatants
JEL Classification: K33, K19
Suggested Citation: Suggested Citation
Kontorovich, Eugene, 'A Guantanamo on the Sea': The Difficulties of Prosecuting Pirates and Terrorists (March 30, 2009). California Law Review, Vol. 98, p. 234, 2010; Northwestern Public Law Research Paper No. 09-10. Available at SSRN: https://ssrn.com/abstract=1371122