Over at Information Dissemination, Galrahn has an informative and interesting post about one of my favorite subjects: A Team Effort at Sea, A Legal Problem Looms. Russia has sent a frigate to the Gulf of Aden to work with the US and EU in combating piracy. Galrahn commends the cooperative approach, but points out that there is a significant question of what to do with the pirates.
The world is in desperate need of a legal framework for dealing with pirates captured. France has a legal framework for dealing with pirates, and several Somalians will serve time in a French prison because France has the political will to carry that obligation without an international legal system. Many in the world require a more international legal approach, and the foundations for such a legal framework would come through international organizations like the United Nations.
Without the step of creating a legal body to serve as an enforcer of international law against piracy, whether it is conducted like war crimes tribunals or some other framework, response may indeed turn out to be inconsistent. The Russians may be more like France, and take prisoners home to face justice in a Russian court, but we have already seen the Danes release pirate prisoners on the beach.
If Americans have a serious desire to stop piracy, the action to be taken is political and begins in the UN. There is almost no public advocacy for this step, and it could be that Gitmo is a reason why this administration lacks the political will to call for such a system. Without that political action towards building an international legal system to deal with pirates, results may indeed be inconsistent.
The UN Convention on the Law of the Sea provides a framework for states to deal with this issue in Part VII, Article 105 (emphasis added).
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 the control of pirates, and arrest the persons 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.
Unfortunately, Article 106 muddies the waters with this: "Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure." This clause effectively ties the hands of the United States, since every "human rights" advocacy group will attempt to clog up the courts to fight for the "right" of the filthy pirates to steal from other people.
This problem, however, is not a legal one, per se. The U.S. Constitution grants the Congress the power (in Article I, Section 8), to "grant letters of marque and reprisal, and make rules concerning captures on land and water." Congress has, in fact, done so. For example, 18 USC 1651 states clearly that "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." Section 1653 further clarifies how this applies to aliens engaged in piracy, and calls for the same penalty.
We have the legal means to deal with the issue. We don't seem to have the political will to enforce our own laws, which are well-supported by so-called international law in the case of pirates.