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What to do with Captured Pirates

As the international community ramps up its fight against rampant piracy off the coast of Somalia, the patrolling naval forces have started to capture pirates. As recently as January 2, 2009, France captured pirates in the Gulf of Aden. Because this is not the Age of Sail and international law does not allow summary executions, an important question emerges: what should be done with captured pirates. This question was the topic of an article I recently authored, “Protections Afforded to Captured Pirates under the Law of War and International Law” published in volume 33 of the Tulane Maritime Law Journal (2008).

Pirates may be captured on the high seas or outside the territory of any state under international law. However, captured pirates are to be tried and punished under the criminal law of the state holding them in local courts, not under international law in an international tribunal. Pirates are somewhat unique in that they are arguably a hybrid between criminal and combatant. They are neither true civilians nor true belligerents. Therefore, it is not entirely clear whether they are protected by international humanitarian law, such as the Geneva Convention, or even by country-specific protections for the criminally accused, such as the U.S. Bill of Rights.

Michael Bahar recently authored an article, “Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations” published in volume 40 of the Vanderbilt Journal of Transnational Law (2007), in which he argued that the United States should ensure that pirates captured by U.S. warships are afforded protections under the U.S. Constitution. My article instead focused on whether international humanitarian law, specifically the Third and Fourth Geneva Convention and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, apply to pirates.

The Third Geneva Convention grants certain protections to prisoners of war. My article argues that pirates are generally not prisoners of war but, in certain very narrow circumstances, pirates may be prisoners of war. However, whether or not they are prisoners of war in the final analysis, they will sometimes be entitled to status hearings to determine if they are prisoners of war.

The Fourth Geneva Convention grants certain protections to civilians in times of war. My article argues that there are several textual problems with applying the Fourth Geneva to pirates, including the fact that the Fourth Geneva speaks of things like “occupation” and “war,” while pirates are captured outside any country (hence no “occupation”) and their acts are not really “war” in the colloquial sense of the word. Therefore, the Fourth Geneva affords no protections to captured pirates.

My article argues that the Convention against Torture bars a capturing power from torturing pirates. Perhaps just as important given the areas in which pirates often operate, the Convention against Torture bars a capturing power from turning pirates over for trial in another country if there are substantial grounds for believing that the pirates would be tortured there.

My article will be available on Westlaw shortly. The citation for my article is 33 Tul. Mar. L.J. 1. The citation for the above mentioned article by Mr. Bahar is 40 Vand. J. Transnat’l L. 1. I can be contacted at mickhp888@gmail.com for any questions or a copy of the article.

Michael Passman

7 Comments

  1. Darren Darren 6 January 2009

    Mr Passman,
    An interesting analysis and I look forward to reading the whole article.
    However, with respect, are we not in danger of over-complicating the situation? Aren’t pirates simply criminals who carry out their nefarious activities on the high seas and thus beyond the normal jurisidiction of any coastal state? Therefore international law allows any warship of any State to take action against them and the courts of the warship’s State to then prosecute and try them. It is in fact a “police action”. Just because the “arresting” vessel happens to be a warship rather than a police launch shouldn’t mean that we immediately reach for international humanitarian law treaties etc…
    Everything very much depends on the domestic law of the arresting vessel. Many countries do not endow commanding officers of their warships with any form of constabulary power (e.g. that of arrest/detention etc…) and those that do limit it. Perhaps a better way to tackle piracy is to embark law enforcement detachments (LEDET), who can arrest, detain and, more importantly, gather evidence to present before a criminal court (assuming, of course, that the doemstic law of the arresting vessel has extra-territorial scope); that seems to work in counter drugs operations in the caribbean. The LEDET need not, of course, be of the same nationality as the warship.
    Darren

  2. Michael Passman Michael Passman 6 January 2009

    In response to Darren, I appriciate the feedback. However, I respectfully disagree that things are as simple as you suggest.
    What you have correctly described is the law that governs the capturing of pirates. You are absolutely correct that ” international law allows any warship of any State to take action against them and the courts of the warship’s State to then prosecute and try them.”
    However, this does not mean that trying people for piracy is anything but simple. While piracy is a crime under the laws of most maritime nations, it is not at all clear that piracy is also a crime under international law. In fact, many leading scholars argue that piracy is actually merely a basis for jurisdiction under international law and must be separately criminalized by each nation that wants to bring charges for piracy. Therefore, the definition of piracy under international law is not the same as the definition under each nation’s criminal law, and those criminal laws are not consistent with one another. This creates the bizarre circumstance that no everyone who is a “pirate” under international law can be tried as a “pirate” under criminal law.
    A situation like this actually occured at one point when some pirates were captured on the high seas and brought to India for trial. India had thrown out or revised a lot of British laws since gaining its independance. One of the laws they got rid of, probably unintentionally, was the British criminal statute against piracy. So a curious situation arose: they had some people who were pirates under international law but they had no domestic authority to punish them. Eventually, the Indian courts held that India could apply the old British statute to punish the pirates.
    But that isn’t really the focus of my article. What I wrote about mainly was what to do with captured pirates once they are captured. Below are a couple of examples of questions that arise when pirates are captured.
    First, do we need to have a trial? While it may not have always been legal, pirates were often killed in summary executions. Modern international and humanitarian law rejects summary execution for pirates. Pirates have been put on trial in Kenya as recently as 2006, as detailed in Mr. Bahar’s article mentioned above.
    Second, are they prisoners of war? Some people argue that non-states can wage war and are thus entitled to prisoner of war status. For example, there is a lot of argument about the status of bin Laden’s followers and whether they are prisoners of war. Pirates are a somewhat unique situation because they actually fight against state warships but are not themselves a state power. Personally, I think pirates are very unlikely to be prisoners of war, but I can see the argument for the other side.
    Third, what if they claim they aren’t pirates and want to be prisoners of war? While the world would be simpler if every pirate ship flew a jolly roger like in Pirates of the Carribean, that is simply not reality. Somali pirates routinely argue that they are anything from innocent fishermen to Somali Coast Guard units bravely defending their waters from foreign encrouchment. Nigerian pirates often argue that they are in rebellion against the national government. Often these are self-serving lies to cover up their wanton acts of theft and murder. However, the capturing power must sort out the truth from the lies. Therefore, the Third Geneva requires that some pirates may be entitled to status hearings before they are shipped off somewhere for trial for piracy.
    Fourth, if pirates aren’t prisoners of war, aren’t they civilians? Many civilians are protected by the Fourth Geneva. However, I argue that even if pirates are “civilians” in some sense of that word, they are not the kind of civilians covered by the Fourth Geneva.
    Finally, what about “stress positions” and “enhanced interrogation?” The capturing power has to consider the level of treatment captured pirates should receive. Even if they aren’t prisoners of war or civilians, they are still human beings and can’t be tortured. But the Convention on Torture goes a step further and bars a capturing power from handing captured pirates over to another state for trial if there is substantial reason to believe that the pirates will be tortured. This means that the U.S. or China can’t capture pirates raiding North Korean vessels and then hand the pirates over to North Korea. This is very important because the U.S. has already taken the position that it is likely to hand captured pirates over to local states for trial (as it did in 2006 when the U.S. captured Somali pirates and gave them to Kenya for trial).

  3. Darren Darren 7 January 2009

    I appreciate the response.
    It all comes down, I think, to domestic law. If the pirates have committed no crime in the national penal code of the “arresting vessel” then under what authority are they being held, let alone arrested? If they have committed no (national) crime or are not reasonably suspected of committing such then, arguably, arresting and detaining them would offend, in a European setting, article 5 of the European Convention on Human Rights.
    You raise a very interesting point about the problems faced by India and how it responded. I think, perhaps, that the following is needed for the successful prosecution of pirates:
    1. Piracy to be a crime under national penal code.
    2. Extra-territorial jurisdictional effect (i.e. the offence although committed outside of the State’s territory can still be prosecuted by that State’s courts).
    3. Constabulary powers of arrest and detention given to Commanders of warships (let’s face it, few police forces have the range or means to tackle piracy in, say, Somalia) – unless you embark a LEDET.
    How pirates are treated once they are on board will once again depend on national laws but treating them as prisoners of war would give them a status to which they are simply not entitled. There is no armed conflict taking place; there are simply criminal acts committed by vicious and desperate people, who do not form an organised mass, who have no objectives beyond making money and who do not consider themselves to be in an armed conflict.
    What may be more of a problem is having pirates on board a warship who, on learning that they are not to be prosecuted, claim asylum. Now once again it all depends on domestic law; some countries view their warships as places in which asylum can be claimed, others don’t, but it may still prove a headache to the ship’s commanding officer. What if they claim refugee status? Refugee Convention contains non refouler obligations. Can they be returned from whence they came then?

  4. TS TS 24 April 2009

    I still do not see how we arrive at International Humanitarian Law. This is no war and I do not see it as an international conflict. Piracy has been described as a business acticity and thats what it is. Up until now their aim is not to injure,kill,gain power over territory- it is simply to make money. They are -and I think we agree on that entitled to international human rights (which of course forbids summary executions). The most elegant way to deal with them is ship them to the country who has captured them and try them there. If we go back and remember the Nuremberg Trials, they acknowledged the existence of international crimes -independent from national law. I do not think I can think of one offense for which character as a crime there is more state preactise and opinio juris, then for piracy. So it can be regarded as an international crime and should be dealt with by the nations who captured them. Of course they wont do that because they could not get rid of them after they have served there time or are acquitted under the doctrine of non refoulment. I believe an international body is the only solution. In Kenya (in my mind) human rights are not ensured and I dont think the agreement between the EU and Kenya (which obliges Kenya to adhere to European standards) will ensure those rights. So absent the willingness of nations to try pirates on their own, there will have to be an international authority.

  5. Michael Passman Michael Passman 26 April 2009

    In response to TS, it appears that both France and the United States have now shown themselves willing to try pirates on their own.

  6. James James 9 March 2011

    Just to make a comment, all of you have made valid points. But rather then writing up something important, I’ve just commented on this page after 2 years! Exciting!

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