Pirates, Pirates Everywhere! And Not a Ship to Sink!
by Dr. Robert D. Crane
What is the difference between a little pirate in the Indian Ocean and a big pirate in Wall Street? If money talks, why not buy them off? Or are there other solutions? Are we stuck with a modern version of the old canard, “Water, water everywhere, and not a drop to drink.”
The Wall Street Journal of April 11, 2009, published Mackkubin Thomas Owen’s article, entitled “The Pirates Challenge Obama’s Pre-9/11 Mentality: Distinctions between Lawful and Unlawful Combatants Go Back to Roman Times.” Professor Mackkubin teaches at the Naval War College and is the editor of Orbis, the journal of the Foreign Policy Research Institute, which until recently was considered by some to be a flagship of the NeoConservative movement.
Professor Mackkubin writes: “While renouncing the term ‘enemy combatant’, the Obama Administration acknowledges the reality that no matter what we call those detained at Guantanamo, the detainees are still not entitled to prisoner-of-war status because they have violated the laws of war by killing civilians and fighting out of uniform. Instead of calling the detainees enemy combatants, the administration has opted to refer to them as ‘individuals captured in connection with armed conflicts and counterterrorism operations’, or ‘members of enemy forces’, or ‘persons who [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks’. Though these changes might seem superficial, unfortunately, they represent a substantive shift. They signal a return to the policy mindset that existed before 9/11, and the consequence will be material harm to U.S. security.”
Dr. Owens then offers to clarify the situation by enlisting jurisprudential analysis. He writes, “The various new substitutes for ‘unlawful enemy combatant’ abolish an important distinction in traditional international law. As the eminent military historian Sir Michael Howard argued shortly after 9/11, the status of al Qaeda terrorists is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval and early modern European jurisprudence. According to Mr. Howard, the Romans distinguished between bellum (war against legitimus hostis, a legitimate enemy) and guerra (war against latrunculi, pirates, robbers, brigands and outlaws). Bellum became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to guerra. Indeed, punishment for latrunculi, ‘the common enemies of mankind’, traditionally has been summary execution.”
This distinction between bellum and guerra, and between soldiers fighting on behalf of governments and insurgents fighting on behalf of themselves, is found also in Islamic law. Those who commit terrorist acts on their own initiative are called muharibun, who have committed hiraba designed to disrupt civilized life, usually by interdicting trade routes. They are executed immediately, though presumably they may be tortured if this would be of any help in capturing more of them. According to the Qur’an and the practice of the Muslims 1400 years ago, legitimate prisoners of war must be returned immediately to their government after the war is over, though ransom may be demanded prior to that time, as explained in my various writings on the matter.
The real problem at Guantanamo is determining who are muharibun and who are not. Many of the prisoners in Guantanamo were sold to Americans by black marketeers who were little more than slave traders. It is often impossible to determine who is who, and there is not enough evidence for a court to make a proper decision.
Do we follow the principle of “guilty until proven innocent” or “innocent until proven guilty”? If we follow the first principle, then we should clear out Guantanamo by executing them all without trial. If we follow the second, we would have to keep them forever. Neither is an adequate solution, which is why the lawyers are having a field day. We never faced this problem when I founded the Harvard International Law Journal more than half a century ago, though I never heard of pirates during the entire history of civilized life being tried in any court of law.
Another problem is President Obama calling the pirates in the Indian Ocean “extremists.” Extremists are such only if they are politically or ideologically oriented. The modern-day pirates that we are dealing with are employees of sophisticated entrepreneurs engaged in a lucrative business. They always get their requested ransom, because it is cheaper for the shipping companies to pay ransom than to pay to have the ships armed. The maritime insurance for armed ships is much more expensive than paying ransom, because ships are armed only in event of war. My own theory is that the pirates are part of a big mafia operation with a lot of moxy people involved, so governmental decision-makers can’t decide what if anything can be done about it.
The two obvious solutions to the Indian Ocean piracy standoff are to sink the pirates’ ships and to support the current Islamist government of Somalia in restoring popular government.
Sinking ships is the easy way to handle what appears to be a big mafia operation. If the U.S. Navy torpedos a ship a day until the “pirates” abandon their business, the mafia might decide to engage in other enterprises. The problem then would be to find all the ships and sink the right ones. If in doubt, fire away!
A more productive solution to stopping the pirates, however, would be to leave the problem to the current Somali government. As Mohamed Abshir Waldo writes in “There are Two Piracies in Somalia,” published on February 11, 2009, in AfricanLoft, “We may not know who can stop them, but we know who did stop them. In mid 2006 the Islamic Courts Union took control of Somalia, providing the only relatively peaceful and prosperous period in recent Somali history.”
Waldo writes, “There are two piracies in Somalia, the well publicized attacks on shipping by pirates from Somalia, and the much more expensive, damaging, and long lived piracy in Somali waters, the Illegal, Unreported and Unregulated (IUU) fishing fleets there from Europe, Arabia and the Far East, and the dumping of toxic waste in Somali waters. Both of these are violations of international law, but because Somalia has had no real government for close to two decades, no one has listened when Somalis ask for help with these two piracies.” The impact of the rogue fishing fleets on the Somali economy have been locally devastating, and the results of the toxic dumping even worse.
As background on the current high-profile piracy, in his article, “Those Somali Pirates and the New Scramble for Africa,” Enver Masud writes: “In January, 1991, Somalia’s president Mohammed Siad Barre was overthrown by a coalition calling itself the United Somali Congress which then divided into two groups - one led by Ali Mahdi Muhammad, who became president, and the other led by Mohammed Farah Aidid. Fighting broke out among rival clans, and food shortages became widespread. ... In a bid to destroy the forces of Mohammed Farah Aidid, on December 12, 1992, the United States, under cover of a ‘humanitarian mission’ invaded Somalia. In the following ten months, 10,000 Somalis died in battles with American forces. The United States ultimately withdrew. The deciding battle for Mogadishu, the Somali capital, was captured in the film ‘Black Hawk Down’. It was a humiliating defeat for America, and Somalia descended into chaos. U.S. support for warlords fueled the turmoil.”
Finally, after sixteen years of chaos, the Islamic Courts Union led the resistance to the local warlords and installed a popular government that brought peace. On June 6, 2006, the Chairman of the Islamic Courts Union, Shaykh Sheriff Ahmed, declared that, “Finally, after 16 years, the Somali people have decided to liberate themselves. The Union of Islamic Courts does not want to impose a Taliban-style Islamic state in Somalia.”
Unfortunately, as part of a decades long effort by Ethiopia to establish its own control over the border region, Ogaden, which has large undeveloped natural gas reserves, on December 24th, 2006, Ethiopia, with American support, invaded Somalia and imposed a puppet government. As Masud writes, “When the U.S. role was revealed, support for the Islamists increased,” bringing renewed chaos. According to third-party reports, “The United States has intervened directly into the conflict, carrying out bombing raids on fleeing refugees and nomads, firing missiles into villages, sending in death squads to clean up after covert operations, and . . . assisting in the ‘rendition’ of refugees, including American citizens, into the hands of Ethiopia’s notorious torturers.” Sixteen thousand civilians died in this new conflict, but despite U.S. support, the Ethiopian troops were forced to withdraw in January 2009.
The result has been the first period of stable peace in almost a generation. The new government is considered to be “moderate Islamist” in its opposition to Al Qa’ida and the various extremist groups that have promoted chaos in the past. The legitimacy of the new coalition government in opposition to foreign intervention gives it the popular support necessary to restore law and order and eliminate the piracy mafia at its source.
The ransoming of ships is supported by most Somalis as a legitimate means of protest against what they consider to be foreign aggression. As Johann Hari reports in his article, “You are Being Lied to about Pirates,” “The ‘pirates’ have the overwhelming support of the local population for a reason. The independent Somalian news-site WardherNews conducted the best research we have into what ordinary Somalis are thinking - and it found 70 percent ‘strongly supported the piracy as a form of national defence of the country’s territorial waters’. Hari asks, “Did we expect starving Somalians to stand passively on their beaches, paddling around in our nuclear waste, and watch us snatch their fish? ... We didn’t act on those crimes - but when some of the fishermen responded by disrupting the transit-corridor for 20 percent of the world’s oil supply, we begin to shriek about ‘evil’. If we really want to deal with piracy, we need to stop its root cause - our crimes - before we send in the gun-boats to root out Somalia’s criminals.”
The Great Game of Hunting Somali Pirates, by M K Bhadrakumar http://www.twf.org/News/Y2008/1122-Pirates.html
Somalia: Another CIA-backed coup blows up, Mike Whitney http://www.globalresearch.ca/index.php?context=viewArticle&code=20081202&articleId=11258
There are two piracies in Somalia http://www.twf.org/News/Y2009/0411-Pirates.html
Those Somali Pirates and the New Scramble for Africa, Enver Masud http://www.twf.org/News/Y2009/0411-Pirates.html
To turn the tide on piracy in Somalia, bring justice to its fisheries http://www.csmonitor.com/2008/1120/p09s01-coop.htm
U.N. Authorizes Land, Air Attacks on Somali Pirates, Colum Lynch http://www.washingtonpost.com/wp-dyn/content/article/2008/12/16/AR2008121602848.html
U.S. Navy to lead anti-piracy force http://www.usatoday.com/news/world/2009-01-08-us-piracy_N.htm?csp=34