Thursday, April 1, 2010

US Navy Captures Pirates: Now What?

USS Nicholas (USN photo)

In the wake of today’s gun battle between suspected Somali pirates and the American frigate USS Nicholas, which resulted in the apprehension of five individuals, the question now arises as to what the U.S. government intends to now do. Catch and release does not appear to be an option, not after the frigate sank the would-be pirates’ mothership and skiff, so it would seem the suspects could be facing a tribunal somewhere.

One idea of how the United States will proceed with prosecuting pirates comes from a speech given yesterday by Andrew J. Shapiro, the US State Department’s Assistant Secretary for Political-Military Affairs. Shapiro was speaking at the American University Law Review Symposium in Washington about how he believes international judiciary can address piracy. Early into his talk, entitled ‘Counter-Piracy Policy: Delivering Judicial Consequences’ (full text available here), Shapiro quotes Secretary of State Hillary Clinton’s comment from a year ago – after the Maersk Alabama incident – in which she said, “We may be dealing with a 17th century crime, but we need to bring 21st century solutions to bear.” Given today’s events, one would hope that the Assistant Secretary’s talk would reveal some new ideas about how the international community, including the U.S., can deal with the problem.

Unfortunately, Shapiro’s speech failed to lay out anything particularly new or groundbreaking in terms of American policy vis-à-vis piracy. There are the usual ideas about involving the international community more actively, getting the shipping world to take better precautions and supporting nations like Kenya and the Seychelles as they undertake criminal proceedings against suspected pirates. If this is the best that can be put forth a decade into the 21st century by the world’s most powerful nation, then this observer thinks we’ve got some work to do.

Good intentions and international politics are a dicey mix. In speaking of an international Working Group led by Denmark that is looking at, “[E]nhancing our ability to bring pirates to justice”, Shapiro made the following comments: “The United States is among many countries actively engaged in this group’s effort to enhance our collective ability to prosecute pirates. Unfortunately, at this moment in time, that ability appears to be quite limited.”

Shapiro does offer one idea: Allowing for the possession of piracy-related equipment on, say, a skiff to infer the intent to commit a criminal act. But taking a Devil’s advocate perspective here, this seems a surprising concept. A ladder or Kalashnikov lying in a small boat off the Horn of Africa could definitely be pirate tools, but unless seen by witnesses to have been used in an attack, what court would consider them sufficient evidence to prosecute suspects.

He also makes reference to the oft-repeated problem of dealing with the multi-national nature of international shipping: “…[P]rosecuting pirates can be an incredibly complex proposition in today’s globalized world. The realities of international shipping and global commerce are such that in any given piracy case you could have suspected Somali pirates intercepted and apprehended by a British naval vessel after trying to attack a Liberian-flagged ship, owned by a Canadian company, crewed by Ukrainians, Indians, and Filipinos, with a Russian captain and carrying cargo owned by a Turkish company, en route for delivery to a company in Dubai. And the case could be taking place in a courtroom in yet another country, like Kenya or the Seychelles, which are both currently prosecuting piracy cases. The logistical and diplomatic challenges presented by such a scenario are immense.”

Now just imagine this scenario for a moment: An American-owned jet airliner under contract to an Italian firm is carrying Nigerians to Saudi Arabia. It is crewed by Canadian and Dutch citizens, and has in its holds equipment owned by a German firm. It is hijacked over the Sudan and diverted to Egypt. (Except for the hijacking part of this scenario, this is something that a colleague of mine was involved with.) Would no one deign to prosecute the hijackers? Of course not. The craft is not the issue; the crime is. And with piracy, international law does allow for the apprehension and prosecution of individuals suspected of committing such acts on the high seas (in international waters).

We must prosecute these criminals, wherever we can. If it takes bringing them thousands of miles from Somalia to face a judge, then so be it. Hoping they’ll be dealt with in an East African courtroom is wishful thinking – especially as Kenya has today announced they won’t be accepting anymore suspected pirates in their country. Besides, I – for one – do not believe the Kenyan judiciary is transparent enough to begin with.

The core issue is that thousands of mariners are being predated upon by criminal organizations who are managing to elude effective prosecution because of the fear of bringing the problem to the First World. The double standard that says that maritime piracy is less important than aerial hijackings is misguided and ignores the fact that far more people have been – and will be – the victims of pirates.

Also, a reader queried me about comments made by my colleague Roger Middleton, a British expert on East African issues, who categorized the pirates caught by the US Navy as “unsophisticated”. This may seem at odds with my own views that the pirate organizations operating from Somalia are actually quite sophisticated and that the men attacking passing vessels have considerable nautical skills. But I don’t actually think the perspectives of Middleton and I are that dissimilar: I do think the pirate groups are sophisticated, yet I agree with Middleton that some of those doing the actual attacks may be unsophisticated.

The ability to mount maritime operations up to a thousand miles from shore and the manner by which multi-million-dollar ransoms can be negotiated reveal a degree of organizational expertise that has been built up over the years. Four guys with a skiff, some fuel and AKs can’t just set out from the Horn of Africa and hope to succeed on that level. On the other hand, few – if any – of the operational pirates out there are rocket scientists. What was running through the minds of this particular group when they fired on the USS Nicholas is beyond me, but it is far from the first time that the foot soldiers of an organized criminal entity screwed up. And you can bet that their bosses back in Somalia are mightily pissed at losing five men, a mothership, skiff, weapons and other material in a supremely stupid incident.

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