Attaining Optimal Deterrence at Sea: A Legal and Strategic Theory for Naval Anti-Piracy Operations

Article excerpt

ABSTRACT

On January 21, 2006, a guided missile destroyer accomplished the U.S. Navy's first capture of suspected pirates in recent memory. As the Staff Judge Advocate for the NASSAU Strike Group, the Author advised the seizure, led the onboard investigation, oversaw the shipboard detentions, and testified at the trial in Kenya.

Drawing upon this experience, the Author constructs a comprehensive legal and strategic theory for piracy, defining the legal status of pirates and deriving the due process rights that should be afforded them.

The Article also analyzes the evolution of customary and positive international law to demonstrate that, contrary to conventional wisdom, sufficient international law exists to counter the reemergence of piracy. It is sufficient to tackle the growing threat of piratical terrorism as well.

Finally, given the state of international law and the status of pirates as international maritime criminals, the Author argues that the United States should initiate seven domestic reforms and two regional reforms to achieve "optimal deterrence," a naval posture sufficiently robust to minimize the economic, environmental, and humanitarian costs of piracy through strong multi-lateral and unilateral deterrence efforts, while maximizing the due process rights for detained individuals.

TABLE OF CONTENTS

I.    INTRODUCTION
II.   ENEMIES OF ALL MANKIND: UNIVERSAL
      JURISDICTION AND THE BASIC DEFINITION
      OF PIRACY
III.  THE THREE PERCEIVED "GAPS" IN THE BASIC
      DEFINITION
      A.   Piracy, for which Universal Jurisdiction
           Applies, Cannot Exist in Territorial
           Waters--Nor Should It
      B.   Terrorism on the High Seas Can Equal
           Piracy Under International Law
      C.   Piracy Without a Second Vessel Can Remain
           Piracy
      D.   Conclusion
IV.   THE LEGAL STATUS OF PIRATES AND THE SEVEN
      DOMESTIC REFORMS THAT DERIVE FROM IT
      A.   Affording Fourth Amendment Protection
           Rights at Sea
      B.   Affording Fifth Amendment Rights While
           Maintaining Effective Investigations
      C.   The Limited Role of AIS Within the
           SOLAS Convention
      D.   Adding Greater Law Enforcement Training
           to VBSS Teams
      E.   Exploring the Q-Ship Option
      F.   Limited Authorization for Entry Within
           Twelve Nautical Miles of Somalia
      G.   The Information Operations Campaign
V.    REGIONAL PROPOSALS
      A.   Regional Security Arrangements with Direct
           U.S. Participation
      B.   Regional Courts
VI.   CONCLUSION

I. INTRODUCTION

He knew what those jubilant crowds did not know but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture or linen-chests; that it bides its time in bedrooms, cellars, trunks and bookshelves; and that perhaps the day would come when, for the bane and the enlightening of men, it would rouse up its rats again and send them to die in a happy city. (1)

On January 21, 2006, fifty-four nautical miles off the coast of Somalia, the U.S. Navy caught its first band of suspected pirates in recent memory. Ten Somali pirates had attacked an Indian dhow from three speedboats five days earlier, swarming the Indian vessel in the early morning hours and causing paralyzing fear with AK-47 bursts and shouldered rocket propelled grenade (RPG) launchers.

The Indian navigator reported that once onboard, the pirates herded the crewmembers into groups. They punctuated otherwise unintelligible orders with blows from the butts of the AK-47s and rusty pistols. The pirates made the sixteen crewmembers cook for them and directed that they take the dhow further out to sea to hunt for larger ships. It was the third of these attacks, against the motor vessel Delta Ranger, which proved their undoing. …