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Piracy - Is Deadly Force Now the Only Option?

11 February, 2011

The Roman philosopher Marcus Tullius Cicero is quoted as saying, “Nam pirata non est ex perduellium numero definitus, sed communis hostis omnium; hoc nec fides debet nec ius iurandum esse commune.”

In English this translates to, “For a pirate is not included in the list of lawful enemies, but is the common enemy of all; among pirates and other men there ought be neither mutual faith nor binding oath.”

Following the tragic events associated with the recent failed attempt to rescue those taken hostage on Beluga Nomination there has been calls for use of greater force to put an end to the scourge of Somali based piracy. It was not however the first incident when the innocent died during the use of deadly force during anti piracy operations. Hopefully there will be no more innocent lives lost. It is bad enough that men are taken hostage but to have them die during attempted rescues is surely adding insult to injury.  

Article 105 of UNCLOS  states, “On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under control of pirates, and arrest and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Through UNCLOS, a naval vessel of ANY NATION can apprehend pirates irrespective of the nationality of the pirates or the crew of the pirated vessel. This begs the question as to why it is not being done?

There is a lack of political will to bring pirate suspects to trial on “home ground” In most countries, it is feared that those brought to trial could claim refugee status and thus seek political asylum. With the current day situation in Somalia, showing no sign of resolution, at the end of a jail term it would be illegal for a state to repatriate / deport a pirate back to Somali.

From various Wikileaks, both the Somali TFG and the Puntland government are receiving “commissions” of up to 30% from piracy organizers. With this in mind there seems to be little point to building up the prison system there as those that control piracy would never be brought to justice.

Allowing the foot soldiers to go free after being caught only encourages them having gained experience to go back and try again. Why not keep them detained in a floating facility over the horizon off the coast of Somali? The decommissioned UK aircraft carrier Ark Royal could act as such a suitable facility and paid for through the UN. Alternatively, accommodation vessels can be chartered to house them. Their generals and corrupt politicians are doubtless known and could be arrested one way or another and held under somewhat more security than the foot soldiers would require.

By arranging to register such vessels in Somalia, the issue of where to return pirates to too becomes much simpler and it would not risk the innocent through reckless action.

Jim Nicoll

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