How to Consider Modern Piracy

This essay covers a lot and makes MSNBC's discussion look like schoolyard conjecture:

How could the United States—which remains the greatest naval power on earth—be thwarted, along with its allies, by piratical raiding parties of Somali fishermen in souped-up motor boats? The answer is astounding, and lays bare the West’s difficulties in irregular conflicts.

The European Union, India, China, Malaysia, Russia, Iran and the United States have sent naval vessels into the area, but the total flotilla is some twenty ships for a coastline more than 2,000 miles long. The feeble response is also caused by lawyers.

Responsible states can take robust action under Security Council authority if they want to. That is not what they are doing. Instead, the West is tangled in a postmodern confusion over the law of armed conflict, human rights law, solipsistic views of national criminal jurisdiction and, above all, a stunning lack of common sense.

This should arrest the attention of any legal historian. In the origins of international law, piracy was considered the gravest act against the good order of the state system. Any sovereign state could prosecute a pirate for robberies at sea, even if the ship, crew, cargo, pirate and location had no connection to the avenging state. American law reflected this understanding. Pirates are enemies of all mankind, hostis humanis generis, explained Supreme Court Justice Joseph Story in his 19th-century opinions. The first Congress passed a long-arm statute in 1790 allowing federal prosecution of any piracy committed on the “high seas.” This authority was frequently exercised, and it is still good law.

On December 25, 2008, Somali pirates swarmed the Wadi al-Arab, an Egyptian cargo vessel, and gunned down a sailor. A German naval helicopter from the frigate Karlsruhe came to the rescue, interrupting the attack and treating the wounded sailor. But in a televised “reality show” stunner, the pirates were then released and sent back to shore. EU task force commander Achim Winkler told a BBC reporter that Germany would detain pirates only when a German ship was itself attacked or German citizens were killed or injured. The BBC program was called, with no apparent irony, "Europe Today."

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