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Seeking Woodes Rogers: Piracy, Terrorism and International Law

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In the 17th Century when pirates posed a serious threat to commerce in the Caribbean and Atlantic coasts, the British sent the Royal Navy, which hanged every pirate that they could find. Right now there are more than a dozen warships from Italy, Greece, Turkey, India, Denmark, Saudi Arabia, France, Russia, Britain, Malaysia and the United States hunting for pirates off the coast of Somalia. Unfortunately their job is neither easy nor as clear cut as was the Royal Navy's, three hundred years ago.

The outbreak of piracy in the the Gulf of Aden and off the Somali coast is beginning to seriously disrupt ship traffic in and out of both the Red Sea and the Arabian Sea. The New York Times reports:

In the past two months alone, the pirates have attacked more than 30 vessels, eluding the naval patrols, going farther out to sea and seeking bigger, more lucrative game, including an American cruise ship and a 1,000-foot Saudi oil tanker.

Over three hundred seaman are currently being held hostage along with dozens of ships being held for ransom.

"United Nations officials recently estimated that Somali pirates had netted as much as $120 million this year in ransom payments - an astronomical sum for a country whose economy has been gutted by 17 years of chaos and war. Some shipping companies are now rerouting their vessels to avoid Somalia's waters, detouring thousands of miles around the Cape of Good Hope, at the southern tip of Africa."

The first problem faced by the modern-day pirate hunters is simple logistics. The naval ships are larger and more heavily armed than the swarms of pirate skiffs armed with assault rifles and RPGs, but size is not always an advantage.

"One Italian officer said that going after them in a 485-foot-long destroyer, bristling with surface-to-air missiles and torpedoes, was like 'going after someone on a bicycle with a truck.'"

The far larger problem however is legality. While there is a consensus on the seriousness of the problem, the major nations seem unwilling or unable to agree upon a solution. In particular, no one seems to agree on what to do with the pirates once they are captured. Hanging them from the yard arm is no longer an option. Likewise, sending them for trial in Somalia, which has not had a functioning central government for almost two decades, is also not the answer.

Yet no one wants to keep the pirates either. On more than one occasion, the Danish navy has captured men believed to be pirates in international waters, only to release them when Danish courts decided that they had no jurisdiction. Many pirates caught by various navies have found themselves being given a free ride back to the Somali coast from whence they came.

In the past, the most effective means of ending piracy was to destroy their base of operations. In 1700, Nassau, on the island of New Providence in the Bahamas, was home to an estimated 2,000 pirates, who plundered with impunity. Woodes Rogers, an ex-privateer himself, was appointed first royal governor of the Bahamas in 1717 with orders to rout the pirates.

Supported by a man-of-war, Rogers offered amnesty to pirates who would give up their trade, and then hired the pardoned pirates to track down those who refused his offer. He effectively cleared the Bahamas of pirates in a few short years. Woodes Roger's slogan "Piracy Expelled/Commerce Restored" (Expulsis Piratus/Restituta Commerica) remained the motto of the Bahamas until independence in 1973.

Unfortunately, denying the pirates a safe haven is not possible in Somalia today. The absence of a Somali central government allows the pirates to operate freely from numerous small harbors along the coast. Short of invading and occupying the country, denying the pirates a base of operations is not an immediate option.

In the face of the apparent stalemate over international law, some have argued that the Somali pirates should be called "terrorists." In the New York Times of December 5th, Douglas Burgess Jr attempts to make this case. ( Figaro Joseph argues why this doesn't make any sense.) In fact, the Somali pirates and terrorists little in common. Indeed, shortly after pirates seized the Saudi tanker, Sirius Star, several Islamist groups, who arguably are "terrorists", vowed to fight against the pirates.

The basis for Mr Burgess's argument becomes clear by the end of his Op/Ed piece. He essentially argues that if current international law is not being applied to address piracy, then we should call them "terrorists" in hopes of bringing them to justice under the new label:

Recognizing piracy as an international crime will do something else: It will give individual states that don't want to prosecute pirates an alternative - the international court. If pirates are recognized under their traditional international legal status - as neither ordinary criminals nor combatants, but enemies of the human race - states will have a much freer hand in capturing them. If piracy falls within the jurisdiction of the international court, states will not need to shoulder the burden of prosecution alone.

Of course, piracy is already an international crime. Kenneth Randall, dean of the University of Alabama School of Law and an international law scholar, says:

"Any country can arrest these guys and prosecute them at home, under domestic laws that apply. I'm actually surprised people think it's unclear," he said. "The law on piracy is 100 percent clear." He said that international customary law going back hundreds of years had defined pirates as criminals who robbed and stole on the high seas. Because the crimes were committed in international waters, he said, all countries had not only the authority but also the obligation to apprehend and prosecute them.

Ironically, classifying Somali pirates as "terrorists" creates problems of its own. In the absence of effective international action, most ship owners whose ships are taken by pirates have little choice but to negotiate the payment of ransom for the safe return of their ships and crews. If pirates are classified as terrorists, this could become illegal. As reported by the Guardian:

For lawyers negotiating hostage payments, many of whom are based in London, the issue of how funds are spent is a further complication. "We have to look at compliance issues to make sure nobody is committing an offence under the Terrorism Act," a leading piracy lawyer said. "There is nothing illegal under English law about making a ransom payment in itself. But we have to make sure the money is going to pirates who are just trying to raise funds, and not to terrorists.

And so, at least in the short term, the pirates run circles around the multi-national armada sent to stop them, who are hamstrung by the apparent unwillingness of the international community to enforce international law, centuries old. Where is Woodes Rogers when we need him?