The bizarre case of pirates’ human rights

We are told that the reasons we have such a hard time stopping the pirates is that our forces have a very hard time locating them in the vast sea. An odd statement, given that the pirates have no trouble locating our ships in the same sea, and they have no drones, satellites, AWACS, and all the other means of modern technology. Moreover, we hardly need to look for them; they present themselves to us, quite regularly. Most recently they captured six ships with a few weeks.

The main reason pirates roam freely is only whispered in the corridors of power, because it is very politically incorrect to openly state that pirates are protected by a radical interpretation of human rights. The various navies involved are operating (or more precisely, are not operating) because of one or more of the following points:

•    Do not capture the pirates because if you do, they will have to be brought to trial in some national court. There are no international courts in which they can be tried. To try them, you will need evidence that will hold up in such courts. Most ship hands do not have the kind of police training needed to collect evidence properly, observe the chain of evidence, and so on.

•    Once brought to your homeland, the pirates may seek—and possibly be granted—asylum. (In several European countries one can gain asylum by showing that he or she is coming from a part of the world in which there is a sufficient level of indiscriminant violence that one’s life would be in danger by remaining there. One need not show that he or she was specifically persecuted.) Thus, courts may let them walk and you would then have dozens of Somali marauders roaming free in your country.

•    You will be unable to ship them back to Somalia for trial because there they would likely be subject to torture or execution.

•    Piracy is a crime and crimes are a matter for the police to deal with, not armed forces. But national police forces have no jurisdiction, a high seas catch-22.

•    Pirates cannot be shot when they close in on your ship because they may be fishermen engaging in their peaceful business. The fact that they are armed cannot be used as evidence because in these parts of the world practically all men are armed.

•    If you fail to respect their rights, you may be hauled in front of one or more of your national courts, the European Court of Human Rights, condemned by United Nations, and excoriated by the parts of the media and by human rights activists.

Ignored is the fact that human rights—which ought to be observed—must be balanced with concerns for the common good, as they are in the domestic courts of all free nations. No reasonable interpretation of rights allows them to trump all other considerations, especially gross violations of the safety of innocent people going about their business, business which, in the case of the Maersk Alabama, consisted of carrying humanitarian aid destined for Somalia! Thus, while even pirates, if captured, should not be tortured or held indefinitely without a hearing, a ship’s sovereignty should be extended to an area around it. Any armed party entering this zone, should be asked to leave or surrender; if they refuse and do not heed a warning shot, they should be treated as a hostile force. Civilian airlines have armed marshals. Our commercial ships and cruise ships may need some of those now, equipped with a 007 license.    

At least the way I see it, to treat human rights on the high seas the way we do at home is a much preferred alternative to the desperate suggestion—now increasingly mentioned—that we ought to invade Somalia, in order to get at the pirates’ bases. Such a land-based operation is surely going to involve killing many innocent Somalis, aside from inflicting a considerable number of casualties on our own troops.   
   

Amitai Etzioni professor of international relations at The George Washington University and the author of Security First (Yale 2007). For more, go here.

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