Piracy, the law, and funding militias to stop them

Jeremy Scahill

I have been in touch with two well-respected legal scholars, Francis Boyle from the University of Illinois College of Law and Scott Horton, a military and constitutional law expert. Both agree that the US had legal justification to use lethal force against the “pirates.” Boyle said, “Technically, piracy is a felony under US law. And deadly force can be used against someone involved in the commission of an ongoing felony.”

However, the killing of the three pirates may, and probably will, escalate violence in the area.

John Robb suggests funding an open-source counter-insurgency using Somalia militias who raid the pirates on land as the cheap[est, most effective method, even if the militias would probably present their own problems too.

  • Today alone, the American government killed more innocent civilians than Somali pirates have in their entire existence.

    • And your point is?

    • Nylarthotep

      So you’re saying forced armed kidnapping in the process of pirating a ship and threatening to kill the hostage makes these individuals innocent?

      What color is the sky in your world?

  • woody


    So some US lawyers think the US acted correctly according to US laws in Somali waters? I’m sure Russian lawyers thought that their troops acted correctly according to Russian laws in Georgia last year too. Lawyers saying people followed their own laws in foreign countries is not commonly acceptable as a defense, especially in a case where people wind up dead. This is where Somali laws and international laws come into play. Were we asked to handle this problem, or did we ask permission to handle this, via the government of Somalia? Was a diplomatic solution even explored? What is the current Somali governments take on this? (Regardless of weather you think they’re corrupt, or functional…)

    The point that Eli makes is pretty sharp, if a little misguided via the embedded link. So far pirates have stolen goods and held a hostage or two, but never killed anyone. The US just killed 3 people in what was a tense, but until now bloodless conflict. Do you think the other pirates out there will be as careful about not hurting people now? Do you think they may even start targeting and killing people on US vessels? This was something that could have been worked out diplomatically. Now it’s a hot mess, and the US once again we be recorded as having fired the first deadly shot.

    • I can think of no country anywhere that would prohibit, or even object to, killing a kidnapper who is threatening a hostage’s life. It’s called self-defense.

      The government of Somalia has apparently just welcomed Obama’s overtures.

      They negotiated for days to no avail. It didn’t work.

      What would you do, just let them continue?

      Yes, it probably will escalate. How could it not. But the pirates aren’t fighting for the people of Somalia, they aren’t a de facto Coast Guard, instead they’ve simply been stealing stuff and kidnapping people and keeping the money for themselves.

  • Decatur

    I hate to disrupt some of this discourse with factual information, but sometimes it can’t be helped.
    First – “off the coast of Somalia” does not equate to “Somali waters” All of the events took place over 100 miles offshore in international waters.
    Second – The Maersk Alabama is a US flagged vessel. As such, it is an an extension of the United States. The “pirates” (the quotes are so cute) attacked the territory of the United States.
    Third – Piracy is a crime. The Somali pirates are not dispossessed fisherman, they are well heeled and successful gangsters. Eyl is a world away from Mogadishu. Several tens of millions in ransom money made that difference in the respective economies.
    Finally – There are 20-some ships and over two hundred crew being held for ransom in Somalia. We can deal with the issue rationally and proportionally or we can watch the problem continue to grow. Paying ransom and rationalizing the behaviour will guarantee the latter.
    Flattening coastal villages as advocated by some would be neither rational, proportional nor effective in the long run.
    The historical parallel to the 150 year run of the Barbary Pirates (actually an early example of State-sponsored terrorism) from the 1660’s until 1815 merits a good read, if only to learn the signifigance of the name Bainbridge.

    • UJ


      First – sovereign nations have a responsibility to ensure the safe passage of friendly/neutral vessels not only in their respective coastlines, but yes, also in international waters. See: the war on drugs.

      Second – an attack on a flagged vessel is not automatically an attack on the host country itself. See: German U-boat attacks

      Third – Piracy is only a crime if it can be proven. For instance, the Geneva Conventions, the most readily applicable jurisdiction, specifies that piracy is an act of private gain, not public. If the pirates can prove in court that their piracy is not entrepreneurial, but rather a necessity for political/economic/military means, such as a response to crumbling economy due to illegal overpollution, then the charge of piracy would fail.

      Finally – the direct parallel to the Barbary Wars is inaccurate, because as you point out, the war against North Africa was in response to state sponsored terrorism. If you’re looking to make the Barbary wars connection, the Indian invasion of Kashmir or the Turkish bombings of Kurdistan would be much more appropriate. As historical references go, the piracy problem on the horn of Africa is very similar to the native raiding parties on American settlements in the western United States in the 19th century. The pirates are a symptom of a “failed state,” not a state sponsoring terrorism such as Pakistan and its Kashmir militants, or an armed state within a state, such as Hizb’allah in Lebanon.

  • Decatur

    UJ –
    Interesting response.
    My point was that the US Navy did not act in Somalian territorial waters, as asserted by an earlier writer. If Somalia had the capacity and the capability to guarantee safe passage of vessels in adjacent international waters, this discussion would not be taking place.

    My second point was not well stated, but now restated is that US law applies to crimes committed on US vessels, which would include the Maersk Alabama and its lifeboat. The US Navy was the appropriate entity to address the situation, with force if necessary. There was no indication now, but may be in future incidents, that attacks on US vessels were intended as attacks on the US.

    So piracy is only a crime if it can be proven? How would that differ from any other crime? The act of piracy is a crime, but one can only be convicted of piracy (in the US) if it can be proven to the satifaction of the appropriate civilian or military tribunal that the conduct met the statutory elements of piracy. In most courts, the demand for ransom by the Somali pirates would create a presumption of economic motive, but we digress. As an aside, English Admiralty law used to, and may still, provide for summary execution of pirates captured in the act of piracy by the master of the intended victim. However, by doing so, the master and owners reliquished any claims against the pirates.
    Back to the point, military action by the US Navy to secure the safe release of US seamen seized on the high seas is appropriate under US and International law. Whether the dead pirates were indeed Freedom Fighters or Economic Vigilantes is immaterial, since they will not face charges. The lone survivor will be the subject of much international legal hand-wringing, to be sure.
    Finally, I never maintained there was a direct parallel to the Barbary pirates, only that there were interesting parallels. The Barbary pirates were acting on behalf of their sovereigns, obviously placing them in a different category than true pirates in Somalia. Perhaps they could be retroactively considered “enemy combatants.”

  • Ed

    So the answer is that we should train a Somali militia to take care of the problem?
    OK… in other words, we’re going to train MORE Somalis to become BETTER PIRATES?….are you insane?

  • DJ

    There was a government in Somalia that had the power to go up against the pirates if it chose to– the ICU. But we didn’t like them, so (with Ethiopia’s help) we returned Somalia to chaos. Talk about insanity!

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