The Pirates of Somalia_ Inside Their Hidden World - Jay Bahadur [72]
But to judge the effectiveness of the naval forces based solely on the number of attacks prevented is not entirely fair, as the statistics do not reflect the coalition’s multifaceted deterrent effect. First, the forces indirectly prevent attacks (for instance, pirates breaking off pursuit because they fear a response from a warship). Second, they reduce the overall number of attacks by maintaining the Gulf of Aden safety corridor, by interdicting pirate groups before they have a chance to carry out hijackings, or by simply discouraging potential pirate recruits from taking up the trade in the first place. But the failure of the coalition forces to react to actual attacks in progress is disappointing. Though their numbers have mounted steadily since 2008, the warships are still spread far too thin—particularly in the vast Indian Ocean—to consistently respond in a timely manner.
Despite hundreds of millions of dollars in annual net operating losses, the international fleet is unlikely to sail away anytime soon. The naval presence is a classic exercise in defence theatre; for political and humanitarian reasons, home governments must demonstrate that they are making an effort to protect their own nationals, as well as to safeguard international commerce. The optics, in short, are more important than the results. Meanwhile, the vast majority of masters and crews charting the boundless reaches of the Indian Ocean will remain on their own, with only their own vigilance and courage to save them from becoming the latest victims of the Somali pirates.
10
The Law of the Sea
TO DATE, CAPTURING PIRATES HAS PROVED FAR EASIER THAN deciding what to do with them afterwards. The laws of foreign nations have treated Somali pirates as another group of “boat people,” that is to say, illegal migrants. The largely Western countries that patrol the Gulf of Aden and the Indian Ocean understandably desire to avoid the costs associated with transporting captured offenders and processing them in domestic courts. In some nations, such as the United Kingdom, arrested pirates would even be within their rights to claim asylum (the UK Foreign Office has voiced concerns that the pirates may face the Islamic punishments of beheading or amputation should they be returned to Somalia).1 Although in rare instances national pride has prevailed over fiscal sense—Boyah’s six unfortunate compatriots, for instance, as well as five pirates turned over to Dutch courts by the Danish navy in January 2009—prosecuting pirates through Western institutions is not a feasible long-term solution.
So labyrinthine is the legal maze that many foreign navies have opted simply to release suspects after confiscating their weapons and destroying their ships, thereby drawing attacks from media outlets. Such criticism is not entirely fair. Pirates operating out of a failed state are unprecedented in modern times, and the existing international legal machinery is simply not suited to handle them. International law, fortunately, is continually being reinvented as needs dictate, and in no case is this fact better demonstrated than in the legal dilemma posed by the Somali pirates.
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Since ancient Rome, pirates have been labelled as hostis humani generis—“enemies of all mankind”—and piracy has been considered a crime of universal jurisdiction, giving states the right to arrest and prosecute suspected offenders outside national boundaries, such as the high seas. Two principal instruments of modern international law define the procedures for exercising this jurisdiction: the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA Convention). Of the two, the SUA Convention is considered to be the more robust, as it contains a broader definition of piracy and includes explicit instructions for extraditions amongst its signatories. In practice, this permits the master of a ship to deliver captured pirates to another state party, thereby theoretically allowing