More Piracy Near Somalia

[davidbfpo]

Yes, all the international action appears to have overlooked whether any law existed to deal with those detained: http://www.independent.co.uk/news/wo...s-1662947.html

Brilliant.

davidbfpo

[davidbfpo]

With the patrolling navies in the Gulf of Aden the pirates it is reported have moved elsewhere: http://www.telegraph.co.uk/news/worl...tish-ship.html

davidbfpo

[Van]

And retaken.

The act of piracy against a U.S. flagged vessel, and the subsequent retaking of the vessel off the Horn of Africa should make for an excellent case study.

Maybe it is time to make A.J. Corbesier's cutlass manual part of a mariner's education again.

The attack sounds like the typical swarm of small boats closing on a merchant ship, but I'd be curious to hear more detail of the events aboard the ship.

[jmm99]

American captain rescued, pirates killed, U.S. official says - CNN

U.S. Navy rescues captain held by pirates
Three of the Somali captors killed, one in custody after swift operation - MSNBC

[Stan]

Stumbled across these poll results at Russia's Rian yesterday

What’s the best way to tackle the Somali pirates?

Carry out precision strikes on their bases ( 159 / 39.4% )

More at the link...

[Uboat509]

My question now, based on the article posted by davidbfpo, is what are they going to do with pirate that was captured alive? Where can he be tried?

SFC W

[JarodParker]

Longtime listener, first time caller here…

I would think that the pirate in this particular instance could be tried in the US since he attacked a US registered vessel, operated by US citizens. The statutes below clearly describe his actions and the nexus to the US is indisputable. So all they have to do is get home-skillet into the country. Hmmm sounds too easy…

PART I—CRIMES, CHAPTER 81--PIRACY AND PRIVATEERING
Sec. 1651. Piracy under law of nations
Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Sec. 1653. Aliens as pirates
Whoever, being a citizen or subject of any foreign state, is found and taken on the sea making war upon the United States, or cruising against the vessels and property thereof, or of the citizens of the same, contrary to the provisions of any treaty existing between the United States and the state of which the offender is a citizen or subject, when by such treaty such acts are declared to be piracy, is a pirate, and shall be imprisoned for life.

I could be wrong but (my spidey sense tells me) the article posted by davidbfpo might be concerned with the Brits arresting Somali pirates that seize non-British ships with non-British crews in international/non-British territorial waters. Equally confusing is the January 16, 2009 bilateral agreement, which supposedly allows for piracy suspects detained by US forces to be tried in Kenya (article linked by another user earlier in this thread). Where does Kenya get the authority to prosecute Somali pirates?

Also, the Navy’s plan to start conducting vessel inspections for “pirate paraphernalia” off the Somali coast is a bit troubling. I hope we don’t start hearing about watercraft borne IED’s, especially in light of the fact that Al-Shabab is claiming they launched a mortar attack on Congressman Payne’s aircraft.

I’d like to express my appreciation for everyone on this board who who’s been kind enough to share their knowledge and time.

[Schmedlap]

I posted this question at the SWJ blog, but it probably has a better chance of being answered here.

My question pertains to my analysis below. The question is: am I correct?

I read, via AP, that "The Defense Department twice asked [President] Obama for permission to use military force to rescue Capt. Richard Phillips from a lifeboat off the Somali coast. Obama first gave permission around 8 p.m. Friday, and upgraded it at 9:20 a.m. Saturday."

Facts, as reported in the media:
Three snipers/marksmen observed Capt. Phillips with a gun either to his back or head. All three of the pirates with him were in plain view, less than 100 feet from the Bainbridge.

My understanding:
In any operation that I have ever been on, the minimum use of force, up to and including lethal force, has always been authorized to defend another person if it is perceived that the person is at risk of imminent death or harm. That authorization has always been in effect unless a service member is directly ordered not to use force.
If a deployed, armed service member sees someone about to be shot to death, and the service member can prevent it by shooting the assailant, then the service member is free to do so unless ordered not to.

My analysis:
Even if the President gave no guidance whatsoever in regard to the incident involving Capt. Phillips, the shooters still had authority to kill the pirates when it became apparent that Capt. Phillips' was about to be shot by the pirates.

Why is this important? I think this is a very slick talking point. Even if my analysis is correct, the talking point that the President gave the Navy permission to use force "to rescue" Capt. Phillips makes it sound as though the head-popping climax to this high seas adventure was made possible by brilliant decision-making in the White House. As I understand what has been written, this was not a rescue mission. This was three shooters who saw an immediate threat to the life of Capt. Phillips and interceded in his defense. At that point, he is lying in a boat, tied up, and in need of help. So, they go help him - just as they would help a yacht full of random yahoos who are drifting aimlessly because their motor died and they're out of food and water. None of that requires Presidential authorization.

Possible caveat:
"They had a gun to his back" is a convenient justification after the fact. Could make for a useful cover to a deliberate rescue mission, making this look like a purely defensive act. That would send a less threatening message to the pirates. That message would essentially be: "Continue your practice of not harming captives and we're cool. There might be a tense standoff, but you will live another day. Escalate to the use of deadly force against our countrymen, and we kill you."
If that is the case - that we're pushing a storyline that is not what actually happened - then I hope that the people in the know remain faithful to the story. The truth seems to eventually get out. If this leads to retaliation of the type that some pirates have threatened and if it turns out that our storyline is not what actually happened, then we know the tired old mantra: "so-and-so lied, people died."

[Ken White]

WH spin, that's to be expected. Politicians will claim credit for things that go right and back off if they go wrong; way of the beast -- both parties, ideology irrelevant, unfortunately...

I note Newt Gingrich and some others lambasted Obama for doing nothing then, when the WH started crowing, pointed out the same things you cite. I'm pretty sure that had things gone wrong there'd have been a lot of finger pointing and the WH spin would've been "Yes, they had authorization -- but they overstepped" or such like. Maybe not but I'm old and cynical...

Shouldn't be that way but it is.

Captains of naval vessels have far more authority and freedom of action than do Army, Marine or Air Force Colonels -- nature of that beast as well.

My guess is that 'gun in his back' may or may not be true but either way was played up in an attempt to make the Pirates the bad guys (Clue -- they already were that... ). Either way, the boys done good. It'll complicate things there but something similar was going to happen sooner or later in any event.

Now, as long as we don't get dumb...

[Rex Brynen]

International Legal Responses to Piracy off the Coast of Somalia

By Eugene Kontorovich

The American Society of International Law
February 6, 2009
Volume 13, Issue 2

The extraordinary growth in piracy off the coast of Somalia in recent months has led to a multipronged international response. Several nations have sent naval assets to patrol the Gulf of Aden in an effort to protect international commercial shipping. The United Nations Security Council has, under its Chapter VII powers to address threats to international peace and security, passed a series of resolutions that give these forces unprecedented legal authority to pursue pirates. While the traditional definition of piracy under international law restricts military responses by outside powers to those carried out on the high seas, the 2008 Security Council resolutions authorize the use of military force within sovereign Somali waters and territory. Despite this authorization of expanded powers to interdict and detain pirates at sea, states have expressed frustration at the limited available options for prosecuting captured pirates. Thus Britain has entered into an agreement with Kenya to permit sea robbers captured by the Royal Navy to be tried in Kenyan courts. All these developments are innovative legal responses to a modern epidemic of the oldest recognized international crime.

[jmm99]

As correctly stated, the SROEs provide for self-defense and defense of others (those rules are based on the conduct of the opponent actors). Those SROEs are subject to an override by the National Command Authority going to rules based on the status of the opponent actors - e.g., allowing kill or capture at any time and any place.

Having said that, and without having the specific communications in hand, one cannot say what rules were in effect for the actual shoot. Even the SROEs (conduct rules) are subject to micro-management from the top - e.g., no shooting even if the on-point people see a lethal threat to themselves or to an innocent.

The I Law article cited by Rex covers the UN authorizations, the scope of universal jurisdiction over piracy (as in 18 USC 1651 cited by JP, which applies even if there is no US nexus other than the US doing the capturing), and why Kenya is involved as a possible venue for trials (answering JP's question).

That article does not cover what US ROEs are in effect for a particular engagement. The Somali pirates are TVNSAs (Transnational Violent Non-State Actors) - the basic question is whether they are to be handled as a purely criminal law matter (conduct based ROEs); or whether action against them (as a hostile group; e.g., AQ-Taliban) is to be in the context of an "armed conflict" (where ROEs can be status-based, but also can remain conduct-based in the discretion of the National Command Authority) - with Congressional action, etc.). In an "armed conflict" situation, Common Article 3 of the GCs comes into play for detainments, but supplemental criminal prosecutions would also be an option.

All of this is simply a variant of the Gitmo cases.

LTC Geoff Corn has written quite a bit about conduct-based and status-based ROEs. See discussion at #32 in this thread and at # 245 in this thread (multiple source links).

[Stan]

A good article from the Christian Science Monitor shedding a bit more on Kenya and covering some legal history.

Sticky legal battles await for captured Somali pirates

Yet it is not clear – and now with Somali pirate lords talking about retaliation – that Kenya is entirely keen to be the world's judicial dumping ground for marauders of the high seas. Nor is it clear that Kenya's fragile politics can support a potentially controversial initiative on piracy, or that its troubled judicial system can deliver the quality of justice that many European nations, such as Germany, say they require in turning over the accused.

"We should think of Kenya's hospitality as a very short term thing. They don't really want and don't need this right now," says an American international lawyer who spoke on condition of anonymity to protect colleagues in Somalia. "Kenya isn't The Hague, where combatants live far away. The truth is we are unprepared for this. There isn't a Kyoto protocol for piracy, there's no clear international practice."

"You don't hear about it, but a lot of pirates are just put on shore," says Mr. Middleton. "The EU mission is to 'dissuade and disrupt,' only. It's fairly selective when pirates are turned over. That only happens when the evidence against them is very good."

... the UN Law of the Sea Treaty, which governs piracy, is not ambiguous. It states that outside a 12-mile limit, piracy is a crime that can be prosecuted anywhere in the world under the concept of "universal jurisdiction." Piracy itself in the 18th century brought the first codification of such universal laws.

Inside the 12-mile limit – one reason pirates quickly tow ships close to shore – the crime is considered "armed robbery." But the 12-mile limit, and a further 300-mile economic zone off shore, makes for a set of practical complications for the dozen navies actively patrolling a 2,500 mile coast. EU nations are obliged to apply a high level of human rights standards, which, unlike the US Navy, even disallows fingerprinting of pirates.

[wm]

The BBC reports has a new pirate attack against a US vessel here

Pirates attack second US vessel

The Liberty Sun was damaged in the pirate attack
Pirates have used rocket-propelled grenades and automatic weapons to attack another US merchant ship off the coast of Somalia.

The pirates damaged the Liberty Sun, which was carrying a cargo of food aid, but were not able to board it.

The ship asked for assistance from the American warship involved in the rescue of a US captain seized last week.

Pirates have vowed to avenge the deaths of those killed in recent rescue operations by US and French forces.

What I find most interesting in the article is this :

Our correspondent says it seems unlikely there will be any major increase in the military effort unless there is a spectacular hijacking involving the deaths of many Americans.

The reluctance to mount a major international naval operation in the area may also be down to the relatively small scale of the problem.

Last year, according to figures from the International Maritime Bureau, nearly 23,000 ships passed through the Gulf of Aden, but only 92 were hijacked.

[goesh]

Today at MSN they reported another attack on a US ship, saying rockets had been used by the pirates. I guess I haven't followed this closely enough and was assuming the pirates were using only AKs and fast boats. What's the real scoop here, are they upping the ante or have they always had more fire power than AKs ? The devils had vowed revenge on the US after that SEAL team took out 3 of them.

[Tom Odom]

Today at MSN they reported another attack on a US ship, saying rockets had been used by the pirates. I guess I haven't followed this closely enough and was assuming the pirates were using only AKs and fast boats. What's the real scoop here, are they upping the ante or have they always had more fire power than AKs ? The devils had vowed revenge on the US after that SEAL team took out 3 of them.

hey mate

RPGs have been standard fare with these guys. As for the boats, they range from fast to barely serviceable

best
Tom

[goesh]

Thanks Tom. The older I get the more I want simplicity. It seems there could be a few strategically placed arms lockers on board these merchant ships - ARs, shotguns with 00 buckshot, .45s - I know there's an issue of weapons going into foreign ports but he**, stamp these lockers with big FIRST AID signs and if anyone wants to inspect, well, the Captain and XO can't find the keys to the First Aid lockers. It's a real sad state of affairs when the US Navy has to be commiting resources to guard against marauding pirates in cigar boats or whatever it is they are using.

[bourbon]

marauding pirates in cigar boats or whatever it is they are using.

Cigar boats, now that would be Don Johnson style! These guys use skiffs with outboards (here are some pics), and operate from larger 'mother ships'. They've had RPG's; fired a few at a cruise ship in 2005.

[wm]

Here is the text from BBC, starting below.

US Secretary of State Hillary Clinton has unveiled a four-point plan to tackle piracy in the Gulf of Aden.

She said an expanded international effort was needed, as well as freezing pirates' assets, and plugging gaps in the shipping industry's own defences.

Improving the situation in Somalia itself was also key, she said.

[goesh]

" We must press authorities within Somalia to take action against pirates operating from bases within their territory," - Sec. of State. H. Clinton

ahhh, maybe some free therapy for the pirates too..........??

[Uboat509]

"We must press authorities within Somalia to take action against pirates operating from bases within their territory," Mrs Clinton said.

This is one of the most ridiculous statements I have heard about Somalia. If Somalia had "authorities" then they wouldn't have many of the problems that they do now. Somalia has no credible central authority. There is a western backed government but it lacks the power to assert any meaningful control over large parts of the country.

SFC W