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PSC = Privateering Security Contractor

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If you follow maritime news in even the most cursory fashion you're likely aware that, due to attacks by Somali pirates, that private security companies are increasingly involved in protecting commercial shipping against pirates. That in itself is not news.

But current efforts are still embryonic. Despite the rush of companies into the briny blue to win contracts, the drafting of standards by their use, and the acceptance of at least some governments to their use, the utilization of PSC is still largely the result of an agreement between a maritime shipper and a PSC.

But that is sort of a maritime beggar they neighbor policy. It works okay for the leading shippers who have money to spend on security but not so well for those who don't. It is similar to the old joke about the justice system: "Capital justice is for them who have the capital."

But can PSC do even more? The answer is yes, according to Todd Hutchins, a U.S. naval Surface Warfare Officer. Last year his article "Structuring a Sustainable Letters of Marque Regime: How Commissioning Privateers Can Defeat the Somali Pirates" was published in the California Law Review.

His premise is that piracy is a complex problem that threatens maritime safety and interferes with global commerce. Today, despite costly naval interventions, Somali pirates viciously attack seafarers across expansive stretches of the Indian Ocean. Powerful nations from around the globe have been unsuccessful at stemming the problem because they have focused on capturing and prosecuting a relatively small number of seagoing pirates, while allowing pirate networks to operate with near impunity. To prevent future attacks, an effective and sustainable deterrence regime must be implemented to target the financiers and sophisticated kingpins who lead pirate networks.

What is his solution? In a Back to the Future approach he wants to use a classic solution -- privateers.

This is not only a private sector alternative with a long and honorable tradition, combining profit and patriotism, but is one that is expressly allowed under the U.S. Constitution; Article 1, Section 8, Clause 11 -- [Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.

Hutchins notes that, scholars have considered the possibility of issuing letters of marque to private actors as an antipiracy strategy. He further develops the concept by considering how such a legal framework could be structured under both domestic and international regimes, and how it might effectively deter pirates while adequately compensating and controlling privateers.

But unlike other scholars, he proposes establishment of an international system of issuing letters of marque. This approach would build on the current multilateral antipiracy efforts underway in the Indian Ocean; avoid questions of legitimacy or international wrangling over the illegality of privateer actions, and enable individual nations to avoid becoming entangled in fighting and prosecuting pirates.

More on that in a moment but first consider the economics of the issue. He notes that the current approach is economically foolish.

Thus far, the response to Somali pirates has focused on utilizing large naval warships to patrol the seas off Somalia. At present, thirty nations (deploying over forty naval vessels) patrol the Gulf of Aden. The costs are staggering. According to United Nations Under-Secretary-General Antonio Maria Costa, a single naval vessel off the Somali coast costs $ 100,000 a day, and the aggregate annual operational cost of all the nations patrolling is about $ 1.5 billion. These figures far surpass the ransoms paid to pirates, which raises the question: Why do the European Union and the United States allocate scarce resources to the problem when their economies are in shambles?

It is important to remember that Hutchins is not advocating the use of armed security teams aboard ship, which has become a new market segment of the PSC industry. He writes, "While this option might be less costly than stationing a naval fleet in the area, it is still prohibitively and unnecessarily expensive. Already operating with almost no profit margin due to the global recession, shippers would have difficulty assuming these additional costs. Moreover, teams on every ship would be extraneous since pirates attack very few of the 20,000 ships transiting the Gulf of Aden."

Instead, he is advocating something more ambitious; a strategy for proactively dismantling pirate networks and uprooting the kingpins that fund, direct, and profit from piracy. Thus he believes the solution to piracy in the waters off of Somalia may lie in letters of marque, which are legal authorizations enabling private entities - privateers - to use force on behalf of the state to harass or prey on vessels belonging to foreign nations or individuals.

This is not the place to go into detail on letters of marque though their use goes back centuries both in the United States and other countries. Although privateers fell out of use starting in the mid-nineteenth century they did not become extinct. And in recent years there have been calls to rely on them again.

After the 9/11 attacks, Congressman Ron Paul suggested issuing letters of marque against terrorist assets. He argued that using private forces to hunt terrorists would be more advantageous and cost-effective than war or regime change. His Marque and Reprisal Act of 2001 classified the attacks of 9/11 as "air piracy" and directed the president to issue letters of marque against Osama bin Laden. Congress did not enact the proposed law.

In 2007, Ron Paul again introduced the Marque and Reprisal Act authorizing and requesting the President to commission, under officially issued letters of marque and reprisal, so many of privately armed and equipped persons and entities as... the service may require, ... to seize outside the geographic boundaries of the [United States] and its territories the person and property of Osama bin Laden.

On April 15, 2009, Congressman Paul again advocated issuing letters of marque, this time to "Special Ops/Special Forces operators who are ready, able, and willing to have a go at the Somali pirates." This proposal was in keeping with the traditional understanding of letters of marque and privateers under international law. But Congress failed to act on this proposal.

Hutchins says a new Letters of Marque regime is required because:

Since the Somali government lacks law enforcement capacity, foreign diplomatic measures will have little effect on changing the behavior of Somali citizens. Moreover, pirate networks operate across an expansive geographic range through a network of specialized nodes for command and control, logistics, financing, and recruitment. Wartime strategies, such as coastal bombardment of pirate bases or shore invasion, would result in heavy casualties. The possibility of military occupation to restore law and order seems unlikely, especially given the strong public sentiment against intervention after Iraq, Afghanistan, and failed past engagements in Somalia. Patrolling millions of square miles of the Indian Ocean would be impracticable and cost-prohibitive for the U.S. Navy and its coalition partners. Allowing private professionals to operate against pirates under letters of marque is consistent with the international law of reprisal and is permissible as individual or collective self defense.

*****

Since privateers conduct operations on behalf of governments, essentially functioning like military vessels, they would be entitled to board, search, and seize pirate vessels. Consequently, if privateers discovered evidence of piracy onboard a suspect vessel, they could seize the vessel, arrest persons on board, and subject such persons to the jurisdiction of the courts of the state that issued the letter of marque. Under the principle of universal jurisdiction, the state that issued the letter of marque could also take any assets of pirates and their backers within the state's territorial jurisdiction.

Prosecuting individual Somali pirates, particularly the increasing number of minors, is not nearly as important as crippling the global network of financiers, backers, and negotiators. Issuing letters of marque allowing privateers to seize assets, such as ships, high-speed engines, weaponry, and telecommunications equipment vital to the operations of pirate backers would be a cost-effective way to halt their operations. Privateers could proactively seize pirate skiffs and mother ships with ties to the gangs from pirate controlled cities, such a Eyl and Hadahere, as they leave port. Seizing these hard assets would be more effective than prosecuting personnel.

So how do today's private contractors play into this?

Since states have a right under international law to hire contractors and private individuals to support their military efforts, it seems reasonable that international authorities would be entitled to do the same. Private security forces have played an increasingly important role in modern conflicts - in some instances performing functions nearly identical to their uniformed counterparts. For example in Iraq, private contractors have defended bases, trained the Iraqi army, and interrogated prisoners. Letters of marque do not alter these recognized roles, but rather change the way the government compensates contractors, allowing private enterprises to collect payment through prize courts. A new letters of marque regime would not alter the practice of employing contractors, but would merely alter their form of compensation.

Of course, given the problems that have cropped up in recent years with private security contractors in Iraq and Afghanistan there are concerns about control and accountability of modern day privateers. Hutchins notes steps Congress could impose additional qualifications on the conduct of privateer operations.

Privateers should be required to provide a large bond to cover payments for any vessels or persons improperly seized. This would discourage unlawful takings. Additionally, privateers should be required to provide justification to regional military commanders via satellite phone, stating the evidence that a particular vessel may be involved in piratical activities. Alternatively, when military commanders glean information about pirate movements from ground intelligence or unmanned aerial vehicles, they might direct privateers to specific targets. Another approach would be to require privateers to seek judicial permission - similar to a warrant - from an international tribunal or domestic court prior to attacking a suspected target. These measures would reduce the possibility of mistakenly taking innocent vessels. Authorities could also specify disciplinary actions, such as criminal punishments, sanctions, and forfeiture of bonds for privateers that misbehave. Further, in a domestically administered system, subjecting modern privateers to the Uniform Code of Military Justice, as Congress has done with contractors engaged alongside U.S. forces in combat, and with privateers in 1812, would reinforce their subjugation to military authorities.


Hutchins also thinks that steps can be taken to incentivize privateers because, let's face it, there's no money in just capturing a pirate skiff or mother vessels But there are bounties and rewards, which likes letters of marque, have a long and honorable tradition.

During WWI, British sailors were entitled to receive a bounty, even for missions on land. In America, the Continental Congress paid a bounty of twenty dollars per cannon and eight dollars per man captured. Recognizing the need to incentivize actual military effectiveness, Congress passed the Bounty Act as one of its first bills after the Constitution was ratified. Under the Bounty Act, the U.S. government paid sailors bounties for taking enemy prizes. The Supreme Court upheld the payment of substantial bounties to persons responsible for the capture or destruction of enemy fleets.

After all, the U.S. government uses bounties to encourage the enlistment of private citizens in law enforcement activities, such as bail enforcement officers -- also known as bounty hunters. There was a twenty-five million dollar bounty on Osama bin Laden. Privateers will be motivated by a bounty whether funded by the public coffers or via collections from civil penalties against pirate assets. Issued in tandem with bounties, letters of marque provide an efficient way to confiscate pirate vessels prior to attacks.

Furthermore, letters of marque also provide a method of seizing or destroying land-based assets used by pirates in their "ports." Prize jurisdiction extends to seizures made "in ports," and such jurisdiction does not end merely because the goods have landed. Case law suggests privateers can use letters of marque to seize and destroy the land-based assets of pirate kingpins located near the shore.

Finally, letters of marque allow for the seizure of pirate leader assets on behalf of the issuing nation so letters of marque enable enforcers to broadly target the pirate network kingpins, who have amassed fortunes.

According to experts, "the commanders and generals - the financiers and the organizers behind it all - are in Dubai, Nairobi, Mombasa, and even Canada and London, sitting in their hotels, communicating via laptops, and making big money." These ringleaders have turned regional piracy into a global criminal enterprise and are conducting intelligence gathering in the heart of the shipping community and at the Suez Canal. They also have significant U.S. assets and are rumored to be wealthy and well educated. Observers suggest that current strategies, which focus on seagoing Somalis, neglect the leaders who command and control pirate operations. Intelligence officials have long known that "Somali pirates do not randomly attack vessels in the Gulf of Aden and Indian Ocean; they rather select their targets via the help of a London-based consultant group." These international backers are largely responsible for the growth of piracy as they finance operations and provide logistical support. They also profit the most, taking the lion's share of ransom payments. Over the past decade they have likely amassed hundreds of millions of dollars from ransom payments. Letters of marque would allow privateers to seize these assets, providing them with a lucrative incentive to attack the piracy problem at its root.