Posted by Eugene Volokh:
Urging the Obama Administration To Kill Pirates:
http://volokh.com/archives/archive_2008_11_16-2008_11_22.shtml#1226950052
Sounds like good advice from [1]Kenneth Anderson (Opinio Juris):
["]International Maritime officials say at least 83 have been
attacked off Somalia this year, with 33 of them hijacked. The
pirates are currently holding about 11 ships, including a Ukrainian
cargo vessel carrying 33 tanks.["]
I�ll post more on this later, but let me put out a query now: Might
piracy be a relatively easy place for the Obama administration to
demonstrate its approach to use of force, multilateralism, and
international law? ...
Meanwhile, the British have instructed their navy to ignore
pirates, out of the remarkable fear that any captured Somali
pirates might have asylum claims on metropolitan Britain. I am not
alone in thinking this an ignominious day for Britain. But it is a
double whammy for unintended consequences: it is unlikely that it
was ever intended that asylum law would be read to create a
municipal duty for Britain regarding detentions for piracy off the
coast of Africa -- but it was equally unlikely that it was ever
contemplated that a state would appeal to asylum law in order to
abandon what might otherwise be seen as an affirmative
international law duty to maintain the law of the seas....
I had a conversation with a US Navy officer ... who suggested that
the best military course of action would be to equip some number of
civilian vessels as decoys -- heavily armed and carrying marines.
The best thing, he said, would be for Somali pirates to attack, and
then be aggressively counterattacked, in a battle, not the serving
of an arrest warrant -- sink their vessel and kill as many pirates
as possible. It would send a message to pirates that they could not
know which apparently civilian vessels might instead instead
counterattack....
[T]here are a number of ways in which an Obama administration might
make its mark here.
* One is to act in a way to demonstrate that the operation is a
military one within the traditional law of the sea responding to
piracy -- one fights and detains any who survive in order to
prosecute, but the operation is not law enforcement as such. (And
the law used to prosecute could usefully be the traditional law of
piracy -- common enemies of humanity, etc.)
* Second, the US can demonstrate the traditional US commitment to
the rule of international law on the high seas and freedom of the
seas.
* Third, it can act with allies and friends -- India, for example --
to create patrols and the reinforcement of multilateral sovereign
duties; many countries find their vessels and interests at stake
here. It might even manage to re-acquaint the British government
with its international law obligations, by making clear through
joint declarations of states undertaking patrols that asylum is
not an option.
* Fourth, it might even find a way that the US could support the ICC
without triggering the usual issues for the US, by sending (or at
least opening discussions on sending) captured pirates to trial at
the ICC. (I should report, full disclosure, that I am, alas, one
of those recalcitrants who think the US should stay out of it,
support the servicemen�s protection act and oppose its repeal,
oppose de-de-signing of the Rome Statute, etc., but am interested
in seeing ways in which the US might still usefully cooperate with
the ICC on mutual matters of international justice; although I
think a traditional customary law court-martial of pirates at sea
followed by (televised) hanging has its advantages, too.)
Read the whole post.
Thanks to [2]InstaPundit for the pointer.
References
1.
http://opiniojuris.org/2008/11/17/here-there-bee-more-pirates-and-might-the-obama-administration-take-them-out/
2. http://instapundit.com/
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