Do today's pirates have inalienable human rights?
There is some good news on the pirate front of late — hijackings off the coast of Somalia are down slightly since late December when at least a dozen countries began deploying their navies in the nearby waters.
The International Maritime Bureau, the world's premiere anti-piracy watchdog, attributes the slight drop to the recent effort by members of the international community to confront the buccaneers head on.
On the other hand, the IMB also reports that 2008 was the worst year on record for sea piracy with an 11 per cent increase over 2007.
But that increase only tells part of the story: in 2008, 49 vessels were hijacked (including for the first time a huge supertanker), another 46 were fired upon, 889 crew members were taken hostage and 32 were reported killed or missing. The average ransom demand was in the area of $2 million.
Most of this activity occurred in the Indian Ocean off the east coast of Somalia and to the north in the vital Gulf of Aden, the gateway for supertankers transporting the bulk of the world's oil supplies from Saudi Arabia.
It is in these waters that the European Union and the U.S. are now deploying special, heavily armed armadas of their own to help other nations including Canada, which dispatched the frigate HMCS Ville de Quebec there for a six-month tour last fall.
One might be tempted to think that these vital shipping lanes are about to become a whole lot safer. Think again.
A drop in the ocean
In its weekly piracy report, the IMB notes that in the first two weeks of 2009, there were more than a dozen pirate sightings, not only off Somalia but also in shipping lanes across the globe, from Togo to Brazil to Haiti and Vietnam.
Water covers almost three-quarters of the globe and it is home at any given time to roughly 5,000 large ships, which together carry 80 per cent of the world's traded cargo.
Clearly the international navy assembling in the Arabian Sea, as welcome as it is, will be unable to police all of these vital waterways. Faced with this assembled firepower, pirates simply move to another region.
In the fight against this scourge, the UN has taken the unusual step of authorizing warships to enter Somalia's territorial waters and use "all necessary force" against the pirates.
The authorization is conditional, however. Not only does it run out in April but it is also contingent upon the wishes of Somalia's transitional government, a tenuous proposition at best.
But some kind of action is crucial as international piracy is costing ship owners in excess of $5 billion a year in losses, ransoms and rising insurance premiums, a cost that is passed along to all consumers.
Looking to the past
Two hundred years ago, the world's trading lanes had also fallen prey to the systematic plunder of pirates. Initially, states responded by paying ransom, as is being done today.
In 1815, when the United States led the world in crushing the pirates off the Barbary Coast, retribution was swift and final. They either went down with their ships, were executed on the spot or they were taken back to England or Jamaica for trial where they were usually hanged and left dangling on posts along piers as a deterrent to others.
This action had a long precedent. As far back as the dawn of the Roman Empire, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis (enemies of the human race).
For more than 2,000 years, pirates have been considered non-citizens, without rights and subject to universal jurisdiction, meaning that they are subject to the legal sanctions of any state that captures them.
This understanding of piracy as an international criminal act that every state is obliged to prosecute is echoed in the UN conventions on the law of the sea as well as in a host of other global treaties, including the convention against the taking of hostages and the European convention on the prevention of terrorism.
What can be done?
International law is unequivocal in treating pirates much in the same way it now treats terrorists, as enemies of humankind. Remarkably, after centuries of dealing with the problem, the question of what to do with the individual pirates themselves remains an open question.
Making matters worse is the fact that more and more of today's pirates are Islamic, operating with an agenda often more complex than merely securing ransom. This agenda has helped push the threat of piracy farther and farther along the globe's waterways, according to the Institute for the Analysis of Global Security, a Maryland-based think-tank.
States may be reluctant to prosecute for fear of violent reprisal, or they may not wish to undermine vital economic interests. Either way it has created an almost embarrassing situation in which certain countries, Germany and England among them, have actually set some pirates free.
What's more, it now appears that pirates, like any other arrested individual, may now have inalienable rights as human beings, which can pose problems for modern democracies.
British warships patrolling the waters off Somalia have been advised not to detain pirates. To do so might mean sending them back to Somalia, which could expose them to the possibility of torture or worse (a violation of their basic human rights); while bringing them to England for prosecution might mean they could claim asylum (on the basis of the persecution they might expect to receive in their homeland).
The situation is not likely to improve then until prosecuting nations and the UN adopt some rules allowing for pirates to face the law under internationally accepted conditions.
One solution would be for the UN Security Council to pass a resolution setting up an ad hoc criminal tribunal, much as it did after the violent dissolution of Yugoslavia and the genocide in Rwanda. That would relieve any one state from shouldering the burden of hosting a trial on its own, with all the attendant appeals and incarcerations.
Putting in place such a court, the world could then go about the business of establishing a more permanent mechanism to deal with this scourge and exactly which rights these modern-day marauders actually have.