The other day the UN Security Council passed Resolution 1851. The measure was introduced and strongly supported by the United States.
In its content Resolution 1851 is laudable. It authorises hot pursuit of those engaged in piracy and armed robbery on the high seas into the territory of Somalia--with the permission of the Transitional Government.
Secretary of State Rice hailed the Security Council's action. She averred that the measure would send a "strong signal" of international resolve to end the rash of maritime hijackings that has severely impeded trade in the Gulf of Aden.
There is only one fault with Secretary Rice's comment. It is out of touch with reality. To end piracy one does not send signals downrange. No. One sends bullets.
There is only one fault with Resolution 1851. The authority will not be used. The US Naval commander in the region has already strongly implied that the American assets detailed to the vast and growing "anti-piracy patrol" lack the specifics of intelligence and deployable forces to do more than escort and monitor.
The commander also raised another objection to hot pursuit or any other more robust measure. There is no court of competent authority available to try "alleged" pirates.
Experts in international law rushed to support this position. These worthies take the position that the various international conventions on the law of the sea which have taken effect following World War II nullified all the previous national laws and international customs and usages which provided for adjudication of acts of piracy. They maintain that none of the current conventions provide for a due process approach to trying and punishing pirates--even those caught in the act or with the tools of the pirate's trade.
Ad hoc arrangements have been made with Kenya for both the trial and incarceration of a handful of pirates captured while plying their bloody business. These deals are limited in both scope and effectiveness. Given the tenuous nature of both Kenyan and regional politics, it is highly improbable that they will be expanded.
Pirate boats have been stopped and boarded by several ships of different navies. Weapons and communications equipment were found. This constituted convincing evidence that the men (who have included nationalities other than Somali) were not out for a fun day of fishing.
Despite the evidence the pirates were released. Disarmed to be sure, but let go to try their luck some other day.
The reason?
No court of competent jurisdiction. No country which was willing to take on the burden of offering a semblance of due process and, following conviction, a reasonable imitation of secure confinement.
The UN Resolution does not change this reality. Neither does it change a related consideration. Robust actions whether or not they involve the new hot pursuit authority carry with them the real potential of killing persons who are not pirates. This causes unpleasant complications for the navy and government seen as being irresponsible trigger pullers.
There is another factor which renders the well-intentioned Resolution 1851 nugatory. Stepping ashore in Somalia, even for the brief time that might be required to free a ship, rescue a captive crew, or snatch some pirate band automatically involves the state undertaking the action in the blood soaked chaos called Somalia. An incursion would carry risks ranging from being denounced as an Islamophobic baby-killer to demands that the intervening force stay to bring stability to the country.
Like the oft-seen legend on old maps, "Here there be Tygers."
If Resolution 1851 sits as another dead letter act by the UN, that body will lose even more street cred with the bad actors of the world. This sort of "strong signal" is counterproductive. It weakens not only the UN in the eyes of Islamist outlaws such as the Pirates of Puntland, it does the same to nations such as the US which embraced and announced the hollow words of good intentions.
If the UN really, really wants to do something constructive regarding piracy in the waters off Somalia and (at least by implication) elsewhere, there is something it can do. There is a measure the Security Council can take which is real, germane, and relevant. There is an act of creation which will do more--much more--than simply send a signal'
The UN can ordain another of those special tribunals of which the organisation seems so enamored. It can create a court of competent jurisdiction to try cases of piracy and armed robbery on the high seas. It can give a holding pen for the sea going scum picked up by the vessels of the Great Gulf of Aden Piracy Prevention Patrol.
Sure, such a court may not be as high-vis or sexy as those dealing with war crimes, genocide, and other crimes against humanity. But, an International Piracy Tribunal would be useful. Even effective. It could do something real and beneficial.
That's probably why the UN hasn't done it yet. Signals are better than useful results in the Great House by the Hudson.
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2 comments:
Every nation performing anti-piracy patrols has the right and the jurisdiction, recognized by the law of the sea convention, to seize, try, convict and punish pirates and armed robbers on the high seas under their own laws and courts. In particular:
"On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith."
There is no requirement for an international tribunal, though politically it would be desirable to the developed countries not to be the jailer of more If that authority isn't used, it is not a fault of the LOS Convention, it is a greater problem of dealing with not just the actual pirates but the broader environment that provides havens for them.
Thank you for a well done comment. By and large the Geek agrees completely. As he has written in several previous posts on the piracy problem, he is of the view that ample provisions exist for arrest and trial of suspected pirates. He has been rather disgusted by the US, EU and others hiding behind the absence of proper laws and courts.
The only point you raise with which the Geek does not agree--or at least not in total--is the necessity for establishing a functioning government in Somalia before the piracy can be effectively addressed. But, if that is to be the starting point, he has recommended in the past that allowing the Islamists to set up a state would be the appropriate move.
Admittedly the notion of a reestablishment of the Islamic Court Union in a more extreme form is a less than appealing concept considering the record on human--particularly women's--rights. Still, it may be the only viable, short-term approach.
To err on the side of both repetition and accuracy, the Geek is of the view that raising the risks while lowering the benefits is the best approach to the jolly raiders of the Somalia coast. That is a job for naval force resolutely employed.
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