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 firstname.lastname@example.org for any questions or a copy of the article.